The Issue The issue in this case is whether just cause exists to terminate Respondent, Donna James’ (“Mrs. James”) employment contract with Petitioner, Duval County School Board (the "School Board"), based on the fact that Mrs. James failed to adequately supervise her students.
Findings Of Fact The School Board is responsible for hiring, firing and overseeing all employees at the School, which is an elementary school within the Duval County Public School system. At all times relevant hereto, Mrs. James was a teacher at the School. At the time of her termination of employment by the School Board, Mrs. James was teaching kindergarten at the School. She had been teaching at the School for approximately 17 years, primarily teaching in first and second grades. Mrs. James was certified in grades one through five. Each year she taught at the School, Mrs. James received satisfactory annual evaluations concerning her performance as a teacher. There were some comments on her evaluation forms in the category of classroom management that indicate some minor problems in that area, but none of the comments suggest Mrs. James was less than satisfactory. For example, “classroom management skills are improving” (2011); “needs to be more consistent with consequences” (2001). Other than those comments, all the evaluations had either no comments or had more positive comments. There was, surprisingly, no evaluation form in Mrs. James’ employee file for the 2011-2012 school year, the year just prior to the year Mrs. James’ employment contract was terminated. Dr. Sutton became principal of the School in 2009. Her initial assessment of Mrs. James was that she was a competent teacher. Dr. Sutton later came to believe that Mrs. James had some “issues” with classroom management. Dr. Sutton’s opinion of Mrs. James appears to be the impetus for the School Board’s action seeking termination of Mrs. James’ employment contract. (When asked upon being sworn in at final hearing what her “occupation” was, Dr. Sutton replied “Principal of [the School].” However, during cross-examination Dr. Sutton said she was not retained as principal at the School for the upcoming school year. The rationale given to her for non-retention was “data trends and other issues.” Dr. Sutton’s credibility was negatively affected by her initial failure to be forthright about her employment status.) According to Dr. Sutton’s sworn testimony, she visited Mrs. James’ classroom regularly, including formal visits at least every two months and informal visits “frequently.” Mrs. James remembers only two formal visits and almost no informal walk-through visits. Mrs. Gillrup, a retired teacher who came to assist Mrs. James two days a week for the entire school year, never remembers seeing Dr. Sutton visit the room. Dr. Sutton, by her own admission, did not have an assistant principal and was thus spread thin concerning her administrative duties. In light of contradictory testimony, and the fact Dr. Sutton did not have an assistant principal to give her more time, Dr. Sutton’s testimony lacks credibility in that regard. There are four separate incidents which form the basis of Dr. Sutton’s decision to pursue termination of Mrs. James’ employment contract. Each will be addressed below. The Stabbing Incident1 On or about December 13, 2010, Mrs. James was teaching a first grade class. On that day, one student stabbed another student with a pencil, resulting in injuries to the second student. The School Board provided no direct evidence as to what transpired in the classroom other than the final result, i.e., one student stabbed another. According to Mrs. James, the event occurred as follows: Two boys were engaged in a fight in her classroom. The aggressor was an Exceptional Student Education (ESE) student with “special needs.” Mrs. James separated the boys, then took one of the students directly to the office in order to keep the boys from fighting. While she was gone –- for approximately five minutes –- the ESE student attacked another student with his pencil, stabbing him in the neck and head. A Department of Children and Families’ investigation was conducted in that case. The case was closed with a “verified for inadequate supervision” designation. No evidence from the original investigation was provided in the instant matter. There is no evidence that Mrs. James was disciplined because of that incident. The Playground Incident On March 3, 2012, Mrs. James received a verbal reprimand for failing to supervise two students on the playground. No evidence concerning the specific facts of the situation was presented by the School Board. There is no evidence as to how Dr. Sutton even found out about the alleged incident. Rather, the School Board simply alleges that Mrs. James failed to supervise two students properly, resulting in the reprimand. Mrs. James explained the event as follows: On the day in question, her class was on the playground along with students and teachers from several other classes. When it was time for her class to go, Mrs. James blew her whistle twice, summoning the students to line up. When the students gathered, Mrs. James went outside the playground area to line up and conduct her student check. At that time, she found that one student (not two, as alleged) was missing. She was still in visual contact with the playground where other teachers and their classes were still located, so she sent two of her more responsible students back to find the missing student. She then proceeded further along the sidewalk in the direction of her classroom, never losing visual sight of the playground. When the two scouts returned with their wayward fellow student, Mrs. James took them and the rest of the class back to the classroom. At no time was the “lost” student ever without adult supervision. Other teachers were in the playground area with their classes. Mrs. James could see the playground at all times. There was no failure to supervise her students. Mrs. James’ explanation of the incident was considered by Dr. Sutton to be placing blame on the students rather than accepting her own culpability. Mrs. James said there was no “blame”; rather, a child simply did not hear the whistle and had to be retrieved from the playground. The Extended Day Student Incident On November 14, 2012, one of Mrs. James’ kindergarten students ended up on board a school bus after school even though the student was not a bus rider. Again, the School Board provided no evidence as to how this mistake happened, only the final result, i.e., the child was improperly on the bus. When the bus driver realized the fact, he returned the child to school. Dr. Sutton then went to speak with the child’s parent, who was naturally concerned about the incident. Mrs. James explained the situation as follows: The boy was the only child in her classroom who was on “extended day,” meaning that once all the other students left school, he would remain with a group of students for further instruction and supervision. Mrs. James’ routine at the end of the day was to line her students up at her classroom door. The extended day student would be released from the classroom first. He would go into a general purpose area right outside the classroom. The child was directed to a carpeted area where he would sit with other kindergarten or first grade extended day students. These students were under the supervision of one or two other teachers. Once that child was safely seated on a carpet, Mrs. James would tend to her other students. Her bus rider students were sent down to Ms. Solomon’s room, which was separated from Mrs. James’ room by an unused classroom. Ms. Solomon would, in turn, send her car rider students down to Mrs. James’ room. It was Mrs. James’ duty to then get the car rider students to the appropriate area for pick-up. Mrs. James’ extended day student and bus rider students thus went under the supervision of someone else. On the day in question, Mrs. James sent her extended day student out to the common area as per usual. Once he was seated on the carpet, she sent her bus riders down to Ms. Solomon’s class and gathered Ms. Solomon’s car riders. Mrs. James took the car rider students to the student pick-up area. Upon arrival in that area, her students were turned over to other teachers assigned to assist them. Likewise, there were teachers assisting the bus riders, making sure the right students got on the right bus. Teachers assigned to each area were generally familiar with the students and would likely know if a student was not in the appropriate area. Despite the various safeguards in place, on November 12, 2012, the extended day student from Mrs. James’ classroom ended up getting on a bus. How he was able to slip away from the extended day area, avoid detection by the various teachers stationed at the bus area, and get on a bus is not clear. Ms. Solomon said the dismissal time was quite confusing and somewhat chaotic, so if a child did get to the wrong place, it was somewhat understandable. That is why there are other safeguards in place. Dr. Sutton assumed that since the extended day student was from Mrs. James’ classroom, she must be responsible for him getting on the bus. Dr. Sutton issued a written reprimand to Mrs. James for her failure to properly supervise the extended day student. Mrs. James does not agree that she breached her duty in any fashion. Rather, the child somehow managed to evade each and every safeguard in place, ending up on a bus he was not supposed to be riding. The School Board alleged in its letter of termination that another of Mrs. James’ students had improperly gotten on a bus earlier in the school year. Dr. Sutton testified that she spoke to Mrs. James about the incident, giving her a verbal reprimand. Mrs. James has no recollection of ever being advised of such a situation. Based upon Mrs. James’ demeanor and the fact there is no written memorialization of such an event ever occurring, Mrs. James’ version of the story is more credible. It is possible Dr. Sutton was mistaken or confused the event with another teacher’s student. It is also possible that, as Mrs. James believes, Dr. Sutton fabricated the first incident. There is no evidence to either support or disprove that contention. Mrs. James was never interviewed or asked about the extended day student bus incident before the reprimand was issued. She was not asked to explain or provide her perspective of what had happened. Nonetheless, the School issued a written reprimand to Mrs. James as a result of the incident. At that time, Mrs. James did not realize she had the right to submit a written response to the allegation, so she did not do so.2 When Mrs. James was summoned to the School to receive her written reprimand, her husband accompanied her for moral support. Mr. James is also an educator, working at another school within the Duval County school system.3 As they sat in an outer office waiting to be called in to receive the reprimand, Mrs. Walker, a school district employee, called Mr. James (only) into the office. At that time, he was given what he described as a “No Trespass Affidavit” which said that he could not be present on the School campus. He had no idea why he would be prohibited from being on the campus where his wife taught school. He knew of no offense he had committed to warrant such a prohibition. This procedure reeks of impropriety, especially when considering the School’s failure to even ask Mrs. James her perspective of what had transpired in the incident for which the reprimand was being issued. The Sexual Contact Incident On March 1, 2013, the last and arguably most serious alleged situation involving Mrs. James occurred. On that date, it was reported that two students in Mrs. James’ class were engaged in a sexual act or in sexual touching of some kind. At about 10:20 a.m., on that day, Mrs. James was approached by one or more of her students reporting that two of the boys in the class, T.S. and M.M., were doing naughty things under the table where they were sitting. According to the report, M.M. approached T.S. and asked him if M.M. could put his mouth on T.S.’s penis like he had seen someone do on television. T.S. initially rejected the offer, but M.M. persisted. Then T.S. zipped down his pants as M.M. climbed under the table. M.M. then either touched T.S.’s penis or put his mouth on it. When Mrs. James was advised of this, she called M.M. and T.S. to her desk and admonished them for their behavior. Neither boy admitted to any sexual act, only saying that T.S. showed M.M. his penis upon request and M.M. touched it. She then had the boys taken to the front office by Ms. Cox, a paraprofessional who generally worked with another teacher. (There was no evidence provided as to why Ms. Cox was in Mrs. James’ room at that time, how long she had been there, or what she saw vis-à-vis the incident.) Mrs. James asked Ms. Cox to bring back two Referral Forms so she could write up the incident. Later, Ms. Harb, an instructional coach at the School who sometimes acted as de facto assistant principal, brought the forms to Mrs. James. Ms. Harb seemed fairly agitated when she arrived with the forms and tried to ascertain what had actually happened. She watched Mrs. James complete the forms, even suggesting Mrs. James add the statement, “according to another student” at the end of her statement. As it turns out, Ms. Harb had talked to the two boys involved in the incident while they were in the office. She also spoke to some other students and obtained general statements from them about what had occurred. Due to the nature of the incident, DCF was again called in to investigate the matter. They purportedly concluded that there was evidence to support a “verified for inadequate supervision” designation for the investigation. (This was the same conclusion reached by DCF in the stabbing incident from 2010 which had not resulted in any disciplinary action against Mrs. James.) The School alleges that another sexual touching incident, probably involving the same students, happened the prior week, on February 26, 2013. However, Mrs. James was not at the School on that day, having attended a math workshop she had been going to every Tuesday for some time. There was no evidence at final hearing as to what action was taken against the substitute teacher relating to that alleged incident. There was also evidence that another sexual incident (again involving one or more of the same children) may have occurred a week or so later, i.e., after Mrs. James had been removed from the classroom. No evidence was presented to indicate whether the teacher in charge at the time of that incident was similarly disciplined. The School Board Decision The day after the sexual touching incident, Mrs. James was notified that she was being removed from the classroom pending further action on the investigation. Three weeks later she received notice that her employment contract was being terminated. The stated basis of the School Board’s decision was that Mrs. James failed to properly supervise her students. The position stated by the School Board (through its human resources representative) was that the sexual conduct incident was the primary reason for recommending termination of Mrs. James employment contract. The egregious nature of that incident, coupled with a “pattern of failure to supervise students properly," constituted a “severe act of misconduct.” The School Board, therefore, felt it expedient to skip the progressive discipline step of suspension without pay and go directly to the most serious penalty: Termination of Employment. The Four-Step Discipline Process The notice of termination Mrs. James was issued is the Step IV discipline found in a four step process. Step I generally involves a verbal reprimand. A Step II discipline is a written reprimand; Step III is suspension without pay. Under the School Board policies and the collective bargaining agreement, the steps are progressive and each must be preceded by the former step. In this case, Mrs. James’ Step I discipline was a verbal reprimand for failing to adequately supervise “two first grade students on the playground.” This was the March 13, 2012, incident. The Step II discipline (written reprimand) was issued concerning the child who improperly boarded a bus on November 14, 2012. There was no Step III discipline imposed on Mrs. James prior to issuance of the Step IV termination letter. The only caveat to the progressive discipline process is that “some more severe acts of misconduct may warrant circumventing the established procedure.” Art. V, Collective Bargaining Agreement. According to the School’s human resources director, this caveat was invoked in Mrs. James’ case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board, dismissing all charges and rescinding the termination of the employment contract of Donna James for the reasons set forth above. DONE AND ENTERED this 23rd day of July, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2013.
Findings Of Fact At all times pertinent to this proceeding Respondent, Robert Hoffman, was a member of the Deltona Fire District Commission. He was elected to his office in the Deltona Fire District in November, 1992. At all times pertinent to this proceeding Theresa Cresswell was a dispatcher at the Deltona Fire District. She served as dispatcher for approximately eight years, leaving in January, 1995. On April 30, 1993, Ms. Cresswell filed Complaint No. 93-56 with the Florida Commission on Ethics, alleging that Mr. Hoffman had touched and kissed her on January 20, 1993, and on March 20, 1993. Ms. Cresswell also alleges that in March, 1993, after she had spilled water on her blouse while drinking from the water fountain that Mr. Hoffman said that he liked watching her brush the water off her blouse. JANUARY 20, 1993 INCIDENT In December, 1992, Ms. Cresswell organized a Santa Clause workshop for needy children. Mr. Hoffman had promised to provide candy canes and build the workshop for the event. He failed to keep his promise. As a result, Ms. Cresswell had to purchase the candy. On January 20, 1993, Ms. Cresswell came to the Deltona Fire Station around 9:30 p.m. to pick up some papers relating to her schoolwork. She was not on duty. Mr. Hoffman was at the fire station when she arrived. Ms. Cresswell was upset with Mr. Hoffman for his failure to provide the candy and build the workshop. She approached Mr. Hoffman in the reception area while he was talking to Robert Bell and told Hoffman that she was "pissed off at him." Mr. Hoffman acknowledged that he knew that she was upset and that he was sorry that he did not do what he had promised. Ms. Cresswell alleges that during the conversation Mr. Hoffman came to her, put his hand on her shoulder, leaned against her, kissed her on her cheek and whispered in her ear, "I'm sorry. Do your forgive me?" Ms. Cresswell's allegation that he whispered in her ear was made known for the first time at the formal hearing. Mr. Hoffman asserts that he never touched or kissed Ms. Cresswell on January 20, 1993. Robert Bell, the dispatcher who was on duty when the discussion between Ms. Cresswell and Mr. Hoffman took place, observed the discussion and described Ms. Cresswell as being upset. He did not see Mr. Hoffman kiss Ms. Cresswell on the evening of January 20, 1993. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not make a complaint to anyone about the January 20 incident until March, 1993. Fire Chief Holland had been keeping notes about Mr. Hoffman's activities and he sent those notes to the attorney for the fire district. In those notes, he details a conversation that he had with Ms. Cresswell concerning the January 20, 1993 incident. There is no mention that Mr. Hoffman kissed Ms. Cresswell. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell on January 20, 1993. THE WATER FOUNTAIN INCIDENT On March 20, 1993, Mr. Hoffman was attending an all day CPR class at the fire station. Ms. Cresswell was working dispatch on the 8:00 a.m. to 4 p.m. shift on that day. Ms. Cresswell alleges that she was drinking at the water fountain located in the hall of the fire station down from the room in which the CPR class was being conducted. She spilled water on her blouse and was brushing the water from her blouse when Mr. Hoffman came up to her and said, "Can I watch you do that? I like to watch you do that." Mr. Hoffman contends that the incident never occurred. There were no witnesses to the alleged incident. Timothy Brown was teaching the CPR class. He remembered Mr. Hoffman as being the only male student in the class on that day. Mr. Brown does not recall Mr. Hoffman leaving the classroom other than at the assigned breaks and at lunchtime. Mr. Brown was near the water fountain several times during the day while he used a nearby copy machine and when he drank from the fountain, but he did not see Mr. Hoffman and Ms. Cresswell together at the water fountain. When Ms. Cresswell complained to Assistant Chief Rogers on March 22, 1993 about the alleged incident of kissing which occurred either on the evening of March 20 or early morning of March 21, she did not mention the water fountain incident which allegedly occurred on March 20, 1993. When Ms. Cresswell's deposition was taken on April 12, 1993, three weeks after the alleged incident, Ms. Cresswell could not recall when the water fountain incident took place. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that the water fountain incident did not occur and that Mr. Hoffman did not say, "Can I watch you do that? I like to watch you do that." THE MARCH 20-21, 1993 INCIDENT On the evening of March 20, 1993, Ms. Cresswell traded shifts with another dispatcher and reported to work at approximately 11:50 p.m. to work the midnight to 8:00 a.m. shift. Robert Bell was working the dispatch when she arrived. Mr. Hoffman was also at the fire station. Ms. Cresswell put away her purse and made coffee. As part of her duties on the midnight shift, she was responsible for erasing and rewinding the 911 dictaphone tapes. She went to the communications center, which is located adjacent to the reception area, and began to erase the tapes soon after her arrival at the fire station. While she was erasing the tapes, she, Mr. Bell, and Mr. Hoffman began talking about a storm that evening which caused a fire, destroying a local funeral home. During the discussion about the fire, they started to talk about cremation. Ms. Cresswell stated that she did not want to be cremated. Ms. Cresswell alleges that after she made the remark about cremation that Mr. Hoffman came over to her, put his hand on her shoulder, laughed, kissed her on the cheek, and said, "I hear you." At the formal hearing she could not recall whether Mr. Hoffman allegedly kissed her before or after midnight. According to Ms. Cresswell, Mr. Hoffman and Mr. Bell continued to talk about the funeral home after Mr. Hoffman kissed her. Additionally, Ms. Cresswell asserts that after Mr. Bell left the fire station that Mr. Hoffman stayed for approximately one and one half hours. Mr. Hoffman contends that he never touched or kissed Ms. Cresswell as she alleged and that he left the fire station the same time as Mr. Bell. During the conversation concerning the funeral home, Mr. Bell was in and out of the communications center. Mr. Bell did not see Mr. Hoffman kiss Ms. Cresswell as she alleged. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not confront Mr. Hoffman concerning the alleged kiss. Donald Allen Helberg, a firefighter/EMT was present in the dispatch side of the fire station during the late evening and early morning hours of March 20 and 21, 1993, respectively. He saw Ms. Cresswell pull into the parking lot when she came to work the midnight shift. Mr. Helberg recalled Ms. Cresswell joining in the conversation that he, Mr. Hoffman and Mr. Bell were having. He also recalls seeing Mr. Bell head toward the double doors leading to the outside followed by Mr. Hoffman. Mr. Helberg was also leaving at that time to return to the firefighter section of the building. While he was present, Mr. Helberg did not see or hear anything unusual involving Mr. Hoffman and Ms. Cresswell. Sometime after March 21, 1993, Ms. Cresswell called Mr. Helberg and asked him if he remembered being present at the fire station on the night of the alleged incident. Mr. Bell left the fire station approximately ten minutes after midnight. Mr. Hoffman was walking behind Mr. Bell as he walked out the door. Mr. Hoffman was driving a red Jimmy vehicle that night. As Mr. Bell was driving out of the fire station parking lot, he observed a reddish vehicle behind him. The reddish vehicle left the parking lot after Mr. Bell, headed in the opposite direction. Mr. Hoffman lived approximately a mile and a half from the fire station. He arrived home at approximately fifteen minutes after midnight. His wife was up waiting for him when he got home. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell either on the evening of March 20, 1993 or the morning of March 21, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Complaint No. 93-56 against Robert Hoffman. DONE AND ENTERED this 12th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5835EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-2: Accepted. Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 5: Accepted in substance. Paragraphs 6-7: Rejected as not supported by the evidence. Paragraph 8: Accepted in substance except as to the occurrence of the water fountain incident. Paragraph 9: Accepted in substance. Paragraph 10: The last sentence is rejected as not supported by credible evidence. The remainder is accepted in substance. Paragraph 11: Accepted that it is what Ms. Cresswell alleges but rejected as to that is what happened based on the credible evidence. Paragraph 12: The first part of the first sentence is accepted in substance. The last part of the first sentence is rejected as not supported by the evidence. Mr. Bell did not see Mr. Hoffman and Ms. Cresswell the entire time but that does not mean that he wasn't paying attention to them during the time that he did see them. The remainder is rejected as unnecessary. Paragraph 13: Rejected as not supported by credible evidence. Paragraphs 14-15: Rejected as subordinate to the facts found. Paragraph 16: Rejected as subordinate to the facts found as to what Ms. Cresswell believed. Rejected as not supported by the evidence as to what Mr. Hoffman believed. Paragraph 17: The first two sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted. Paragraphs 3-5: Rejected as unnecessary. Paragraphs 6-7: Accepted in substance. Paragraph 8: Accepted in substance as that is what Ms. Cresswell contended. Paragraphs 9-10: Rejected as unnecessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as unnecessary. Paragraph 13: Accepted in substance. Paragraph 14: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 15-17: Accepted in substance. Paragraphs 18-19: Accepted that it was what Ms. Cresswell contended but rejected as not supported by credible evidence that it was what happened. Paragraph 20: Accepted in substance. Paragraph 21: Accepted to the extent that it is Ms. Cresswell's testimony. Paragraphs 22-25: Rejected as subordinate to the facts found. Paragraph 26: Accepted in substance. Paragraph 27: Rejected as unnecessary. Paragraphs 28-30: Accepted in substance. Paragraphs 31-33: Rejected as subordinate to the facts found. Paragraphs 34-37: Accepted in substance. Paragraph 38: The first sentence is rejected as unnecessary. The last sentence is accepted in substance. Paragraph 39: The first sentence is accepted in substance as that was what was alleged. The second sentence is accepted in substance. Paragraphs 40-43: Accepted in substance as that is what was alleged. Paragraph 44: Accepted in substance. Paragraph 45: Accepted in substance as that is what was alleged. Paragraphs 46-47: Accepted in substance. Paragraphs 48-49: Rejected as subordinate to the facts found. Paragraphs 50-51: Accepted in substance. Paragraph 52: Rejected as unnecessary. Paragraphs 53-56: Accepted in substance. Paragraph 57: Rejected as unnecessary. Paragraph 58-60: Accepted in substance. Paragraph 61: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 62: Rejected as unnecessary. Paragraph 63: Accepted in substance. Paragraph 64: Accepted in substance as that was what was alleged. Paragraph 65: Rejected as constituting argument. Paragraphs 66-67: Accepted in substance. Paragraph 68: Accepted in substance. Paragraphs 69-7O: Accepted in substance that the dictaphone equipment is located in the communications center. The remainder is rejected as unnecessary. Paragraph 71: Accepted in substance that she made those allegations. Paragraphs 72-74: Accepted in substance. Paragraphs 75-76: Rejected as not supported by credible evidence as that was what happened. Paragraph 77: Accepted in substance to the extent that Mr. Bell was not watching Mr. Hoffman and Ms. Cresswell the entire time of the conversation. Paragraphs 78-79: Rejected as unnecessary. Paragraphs 80-81: Accepted in substance. Paragraph 82: Accepted to the extent that she did not tell Mr. Bell of the kissing incident; otherwise rejected as not supported by the greater weight of the evidence or unnecessary. Paragraphs 83-84: Rejected as unnecessary. Paragraph 85: The first sentence is accepted to the extent that it is Ms. Cresswell's testimony. The last sentence is rejected as subordinate to the facts found. Paragraph 86: Accepted in substance that it was her testimony. Paragraph 87: Rejected as unnecessary. Paragraph 88: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 89: Accepted in substance. Paragraphs 90-99: Rejected as unnecessary. Paragraph 100: Accepted to the extent that he saw Bell heading toward the outside door, followed by Hoffman as Helberg was leaving to go to the firefighter side of the building. Paragraphs 101-104: Accepted in substance. Paragraph 105: Rejected as subordinate to the facts found. Paragraphs 106-107: Accepted in substance. Paragraph 108: Rejected as unnecessary. Paragraphs 109-111: Accepted in substance. Paragraphs 112-116: Rejected as unnecessary. Paragraph 117: Rejected as constituting argument. Paragraphs 118-125: Accepted in substance. Paragraphs 126-127: Rejected as unnecessary. Paragraphs 128-130: Rejected as constituting argument. Paragraphs 131-133: Rejected as unnecessary. Paragraph 134: Rejected as constituting argument. Paragraphs 135-137: Rejected as unnecessary. Paragraphs 138-155: Rejected as constituting argument. Paragraphs 156-262: Rejected as unnecessary. Paragraph 263: Rejected to the extent that it implies that there was a conspiracy. The evidence does not support a conclusion of conspiracy among Mr. Holland, Mr. Rogers, and Ms. Cresswell. Paragraphs 264-288: Rejected as unnecessary. Paragraphs 289-290: Rejected as not supported by the evidence. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Stephen D. Milbrath, Esquire Alan, Dyer, Doppelt, Franjola & Milbrath Post Office Box 3791 Orlando, Florida 32802-3791 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue presented is whether Petitioner should dismiss Respondent from her employment as a bus driver for an eight-day absence from work that was allegedly unauthorized.
Findings Of Fact Petitioner employed Respondent as a substitute bus driver on November 18, 2002. From February 10, 2003, through the date of the hearing, Petitioner employed Respondent as a bus driver. A bus driver is an educational support employee. Respondent was absent from work for eight days from February 2 through 11, 2005. The absence was not authorized. The unauthorized absence from February 2 through 4, 2005, comprised three days of unauthorized absence within one pay period. The unauthorized absence from February 7 through 11, 2005, comprised five days of unauthorized absence within one pay period. The eight-day unauthorized absence occurred during the regular school session. Respondent's supervisor scheduled a substitute bus driver to drive Respondent's assigned bus route. Respondent was absent from work for a vacation cruise in Chile. The unauthorized absence was not needed for medical or family reasons or for some other emergency. The terms of Respondent's employment are prescribed in the Collective Bargaining Agreement (CBA) between Petitioner and the Service Employee's International Union (SEIU). The terms of employment are further explained in a document identified in the record as the Bus Driver Handbook. Respondent had actual knowledge that she was entitled to only four personal days off from work with prior approval from Petitioner. Sometime in August or September 2004, an SEIU representative advised Respondent, in response to her inquiry, that the CBA authorized a maximum of four personal days off upon approval of Petitioner. Respondent did not disclose that she intended to be absent from work for a vacation while school was in session. On January 3, 2005, Respondent asked the dispatcher to approve eight personal days off for a vacation. The dispatcher explained that his authority to approve or disapprove leave requests was limited to requests for up to four personal days. Only the compound supervisor had authority to approve a request for authorized personal days in excess of four days. The compound supervisor denied Respondent's request before Respondent left for her vacation, and Respondent had actual notice of the denial. The denial was based in part on the ground that Respondent had no contractually authorized personal days in excess of four days during the regular school session. Even if she were to have authorized personal days in excess of four, the compound supervisor needed all of his bus drivers because school was in session. There was a shortage of bus drivers. February was a busy period in the school year. It was imperative that students have transportation to their schools. Absences in excess of authorized personal days must be requested on a form entitled Request for Leave of Absence, identified in the record as PCS Form 3-137. Respondent never requested a leave of absence on PCS Form 3-137. Rather, Respondent utilized the form authorized for requesting up to four personal days for the purpose of requesting a leave of absence of eight days. A request for a leave of absence on Form 3-137 would have been submitted to the director of transportation for Petitioner. The director never received such a request. Several aggravating circumstances are evidenced in the record. Respondent did not take the unauthorized absence for medical or family reasons or for some other emergency. Respondent took the unauthorized absence for her own leisure. Bus drivers, including Respondent, are nine-month employees. Respondent had other opportunities during the school year for vacations, including summer, a week at Thanksgiving, two weeks during Christmas, and a week during spring break. When school is in session, Respondent had no contractual right to more than four paid personal days. Respondent took the unauthorized absence with knowledge that her action would adversely affect her employer during a busy time of the school year. Respondent knew that the unauthorized absence would result in disciplinary action. Prior to her vacation, Respondent's supervisor suggested Respondent may want to remove her personal items from her bus before leaving for her vacation because she probably would face disciplinary action when she returned. Petitioner has imposed previous discipline against Respondent. Petitioner issued a letter of reprimand to Respondent for segregating black and white students on her bus.
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 committing the alleged violation and dismissing Respondent from her employment. DONE AND ENTERED this 3rd day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2006. COPIES FURNISHED: Timberly S. McKenzie 446 Fifth Street, South Safety Harbor, Florida 34695 Laurie A. Dart, Esquire Pinellas County School Board 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Timberly McKenzie 125 Rhonda Drive Clayton, Georgia 30525 Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Petitioner employed Respondent as a food service worker at Lehigh Acres Middle School in Lee County, Florida (the school), from October 22, 1998, until August 2, 2004, when Petitioner suspended Respondent with pay and benefits. A food service worker is an educational support employee defined in Subsection 1012.40(1)(a), Florida Statutes (2004). Petitioner proposes to terminate Respondent's employment on the basis of facts alleged in the Petition for Termination dated August 11, 2004 (the petition). In relevant part, the petition alleges that during the 2003-2004 school year Respondent was guilty of excessive absences that affected Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015 of the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC agreement). During the 2003-2004 school year, Respondent's work day began at 8:30 a.m. and ended at 3:00 p.m. Each day included two paid 15-minute breaks and one unpaid 30-minute lunch break. Respondent's immediate supervisor adopted a policy identified in the record as a "ready-to-work" policy. The policy required food service workers, including Respondent, to put on their hair nets and aprons and wash their hands before beginning work. After a worker was ready to work, the worker then entered in a daily log sheet the time that the worker began work each day. The policy also required each worker to record in the daily log the time the worker left work and any period that the worker left and returned to work in the same day. The supervisor incorporated the "ready-to-work" policy in a revised employee handbook. The revised handbook was distributed to food service workers on September 26, 2003. On December 10, 2003, Respondent signed a form acknowledging that she had read the revised handbook. On 47 days from August 14, 2003, through May 20, 2004, Respondent was late to work, left work early, left for part of the same day, or was absent the entire day. Respondent was late to work on 20 days, left work early on 13 days, was absent 13 days, and left for part of one day for two hours and ten minutes. Petitioner deems all 47 instances to be "absences" within the meaning of Section 9.015 of the SPALC agreement. Assuming arguendo that all 47 instances are absences, the preponderance of evidence does not show that the absences were unauthorized. The supervisor testified at the hearing. The supervisor did not have authority to approve or disapprove absences. Rather, the head of the department or the school principal authorized requests for absences. Neither the head of the department nor the principal testified at the hearing. The supervisor did not know whether Respondent's absences were unauthorized. The supervisor merely reported the 47 absences to the "front office" and later determined they were unauthorized and excessive. Petitioner did not submit personnel records that may have documented which absences, if any, were unauthorized. Counsel for Petitioner argued during the hearing that even authorized absences can adversely affect Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015. However, counsel did not cite any legal authority in his PRO to support the argument. Assuming arguendo that all 47 absences were unauthorized, Subsection 9.016(a) of the SPALC agreement imposed an affirmative duty on Petitioner to inform Respondent, immediately upon her arrival to work following each absence, that Petitioner considered the absence to be unauthorized. The purpose of the requirement is to afford an employee such as Respondent with notice and an opportunity to show extenuating circumstances. If an employee demonstrates extenuating circumstances, the agreement requires Petitioner to change the absence to an authorized absence. It is undisputed that Respondent had several physical conditions, including skin cancer and a miscarriage, that affected her attendance during the 2003-2004 school year. The preponderance of evidence shows that Respondent was absent from work due to medical conditions. During the hearing, Petitioner stipulated that it was withdrawing several dates as a basis for its proposed termination of employment. The withdrawn dates include all 13 days on which Respondent was absent for an entire day; the day that Respondent left and returned to work for part of the day; and ten days that Respondent left work early on August 25 and September 10, 2003, and between October 20, 2003, and March 26, 2004. The stipulation reduced the contested absences on which Petitioner based the proposed termination to 20 days when Respondent was late to work and three days when Respondent left work early. As previously found, Petitioner failed to submit testimony or documentation that the contested absences were unauthorized or that Petitioner informed Respondent upon her arrival to work that Petitioner had determined the immediately preceding absence to be unauthorized. Assuming arguendo that the contested absences were unauthorized and that Petitioner provided timely notice to Respondent, the contested absences present other evidential concerns for the trier of fact. On 12 of the 20 days that Respondent was late to work, Respondent was no more than five minutes late. Being late five minutes or less did not affect Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015. Another food service worker testified for Petitioner that being late five minutes or less did not affect any employee's ability to do his or her job. For the remaining eight late arrivals, Respondent was 15 minutes late on two days, 30 minutes late on two days, and was late the remaining four days between seven and 12 minutes. The preponderance of evidence did not show that Respondent failed to telephone her supervisor when Respondent was going to be late 15 or more minutes. During most of the remaining four days, Respondent was at the school getting ready for work or otherwise within view of her supervisor. The co-worker called as a witness by Petitioner, testified that Respondent's tardiness in excess of five minutes did not adversely affect the witness' job responsibilities, but did adversely affect the supervisor or other workers. However, the witness erroneously thought that Respondent's work day in the 2003-2004 school year began at 8:00 a.m. It is undisputed that Respondent's shift began at 8:30 a.m. The witness never really knew Respondent's actual start time. When Respondent was late to work, Respondent made up the time by working into her lunch or break periods. This was a custom that similarly situated workers practiced regularly. The assistant principal for the school did not testify. However, documents in the record indicate that the assistant principal met with Respondent on October 20, 2003. At that time, Respondent had been late to work approximately 15 times, absent approximately two times, and had left work early approximately two times. The documents indicate the assistant principal "talked with [Respondent] . . . about being on time to work." The supervisor who testified at the hearing was not present at the meeting. Following the meeting with the assistant principal, Respondent's attendance improved. The supervisor did not formally discuss Respondent's attendance with her again until the supervisor completed a performance evaluation for Respondent in March 2004. The performance evaluation, in pertinent part, authorized the supervisor to score prescribed categories of Respondent's job performance as "Effective level of performance observed," "Inconsistently practiced," or "Unacceptable level of performance observed." The supervisor did not score any of Respondent's targeted areas as "Unacceptable level of performance observed." She scored five areas as "Inconsistently practiced," including categories labeled "Is punctual in attendance," "Follows written and oral work schedule," and "Exhibits dependability." On April 22, 2004, the school principal signed a form recommending Respondent for reemployment for the 2004-2005 school year. On April 29, 2004, Respondent counter-signed the form recommending reemployment. On the date of the proposed reemployment, Respondent had been absent from work 43 days, including 19 of the 20 contested late arrivals and one of the three contested days when Respondent left work early. On May 20, 2004, Respondent left work three hours early. On May 21, 2004, the supervisor issued a written reprimand to Respondent for being late to work, leaving work early, or being absent from work approximately 47 times between August 14, 2003, and May 20, 2004. The written reprimand did not provide a clear point of entry for Respondent to contest the factual basis for the reprimand in an administrative hearing. The reprimand merely informed Respondent that Respondent was entitled to prepare a response to the reprimand. Respondent and her union representative did not challenge the factual basis of the written reprimand in a grievance procedure authorized in Article 5 of the SPALC agreement. However, Section 5.102 prohibits the grievance procedure from being construed to deny any rights that are otherwise guaranteed to Respondent by law. On May 24, 2004, the first work day following Respondent's receipt of the written reprimand, Respondent began work five minutes late at 8:35 a.m. Neither the supervisor nor any other representative for Petitioner spoke with Respondent to inform her that Petitioner had determined the late arrival to be an unauthorized absence. On May 27, 2004, the supervisor recommended that Petitioner terminate Respondent's employment. This proceeding ensued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the petition, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits. DONE AND ORDERED this 1st day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2005. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Dr. James W. Browder, III, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner John A. Fritz was employed by Respondent Department of Transportation for approximately four years, working on a bridge crew from the Fort Lauderdale maintenance yard. On June 23, 1985, Petitioner was placed on workers' compensation disability leave; he returned to his normal duties on July 15, 1985. He was again placed on workers' compensation disability leave on July 26, 1985. During the week before Monday, December 16, 1985, Petitioner presented to Respondent a note from his treating physician stating that Petitioner was ready to return to work performing his regular duties on Monday, December 16, 1985. Petitioner did not report for work on Monday morning and did not contact Respondent regarding his failure to report to work until approximately lunch time when he telephoned Joseph Soucy, operations engineer. Petitioner advised Soucy that he was in jail, that he needed Soucy to contact Petitioner's credit union to obtain $200 bail money but that Soucy should contact the bail bondsman first. Soucy telephoned Petitioner's bail bondsman and found out that $200 was not what the bondsman needed; rather, the bondsman was requiring the deed to Petitioner's home as collateral. When Soucy telephoned the jail to relay the information to Petitioner, he was unable to speak to Petitioner directly but left a message explaining that the bail money would not be coming from the credit union since the bondsman required the deed to Petitioner's home. During the conversation that Petitioner had with Soucy, Soucy advised Petitioner that Petitioner was expected to report to work on the 16th of December and that if he did not do so, he would be considered absent without leave. Petitioner remained in jail until approximately December 23, 1985. He did not report for work on December 16, 17, or 18, 1985. After Petitioner's telephone call to Soucy on December 16, 1985, requesting Soucy's assistance in arranging his bail, Petitioner had no contact with the Department of Transportation until January 7, 1986, when he acknowledged receipt of the letter of termination sent to him by Respondent by certified mail, return receipt requested. On April 25, 1983, Petitioner signed an Acknowledgment of Receipt of the Florida Department of Transportation Employee Handbook. That handbook advises employees, on page 43, that an unauthorized leave of absence for three consecutive days will result in the Department considering the employee to have abandoned his position and to have resigned from the Career Service. Petitioner had previously requested leave, following all proper procedures, on previous occasions during the calendar year 1985. He did not, however, request leave nor was any authorized for December 16, 17, or 18, 1985. Further, Petitioner did not request leave nor was any leave authorized for the entire time period of December 16, 1985, through January 7, 1986, when Petitioner again contacted the Department of Transportation. On December 19, 1985, Respondent advised Petitioner that he was terminated from his employment with the Department of Transportation effective December 18, 1985, at 4:30 p.m. for abandonment of his position for failing to report for work since December 16, 1985, and for failing to advise his supervisor of his intention relative to his job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner abandoned his position with the Department of Transportation and resigned from the Career Service. DONE and RECOMMENDED this 9th day of June, 1986, at Tallahassee Florida. LINDA M. RIGOT 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 9th day of June, 1986. COPIES FURNISHED: Gilda A. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Vernon L. Whittier Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 John A. Fritz 301 N.W. 51 Court Fort Lauderdale, Florida 33309 Augustus D. Aikens, General Counsel Department of Administration 530 Carlton Building Tallahassee Florida 32301
The Issue Whether Petitioner abandoned her position and resigned from the career service.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows: Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988. Respondent advised Petitioner by letter dated January 21, 1988, of Fred O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6). Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment. DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163 Rulings on Petitioner's proposed factual findings: Adopted as modified, paragraph 1, R.O. Adopted as modified, paragraph 9, R.O. Adopted as modified, paragraph 4, R.O. Adopted as modified, paragraph 5, R.O. Adopted as modified, paragraph 6, R.O. Adopted, last sentence paragraph 6, R.O. Adopted as modified, paragraph 7, R.O. Adopted as modified, paragraph 8, R.O. First sentence adopted and the remainder rejected as irrelevant. COPIES FURNISHED: Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504 Betty Pigatt 1262 Northwest 172nd Terrace Miami, Florida 33169 Michael Alderman, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0555 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At approximately 11:30 p.m. on the evening of October 9, 1982, the Respondent Erwin McQuown, in the company of the Respondent Richard Scarberry and Scarberry's wife, arrived outside the Brass Rail Restaurant in Largo, Florida. Mr. McQuown exited the vehicle, leaving the Scarberrys inside with the intention of entering the restaurant to see if several out-of-town police officers and a local campus police officer named Sue Wiley, whom they had referred to this place earlier, were inside. Mr. McQuown has been a policeman for over thirteen years and has been employed by the Pinellas County School Board as a campus policeman for over eight and a half years. Mr. McQuown had been to the Brass Rail Restaurant approximately ten times prior to the evening in question and was known to the owner to be a policeman. As he approached the entrance, Mr. McQuown saw a white male individual subsequently identified as Douglas Parks lying on his back on the ground outside the entrance to the restaurant surrounded by a group of other individuals, one of whom was the owner of the Brass Rail, Izaac Azoulay. At this point, Mr. Azoulay, who had just been involved in a dispute with Mr. Parks over Parks' attempted reentry into the Brass Rail after being ejected, requested Respondent McQuown to talk to Parks and show Parks his police badge. McQuown agreed and advised Parks that he, McQuown, was a police officer, that Parks should leave, and that Azoulay could have him arrested if he did not leave. At no time did McQuown state that he, McQuown, would arrest parks. Notwithstanding McQuown'S advice, Parks, who was substantially intoxicated at the time, again attempted to get back into the restaurant and attempted to pass by McQuown. At that time, it appeared to McQuown that Parks and Azoulay were again going to get into a physical altercation, so he inserted himself between Parks and Azoulay in the door. At this time, Respondent Scarberry, who had observed what was transpiring from the McQuown car, where he had been waiting with his wife, recognizing that his friend McQuown could possibly be getting into a dangerous situation, came over to the area and interjected himself by grabbing Parks by the shoulder, spinning him around, and giving him a shove, telling him to get out of the area. Parks resisted, and Scarberry again grabbed him, gave him a push, and told him to "get the hell out of [there]." At no time did either McQuown or Scarberry knock Parks to the ground, strike him, beat him, kick him, or in any other way molest him other than the push by Scarberry that was mentioned above. On his own two feet and without any assistance, Parks crossed the Brass Rail parking lot to Roosevelt Boulevards a distance of approximately 75 feet, without either McQuown or Scarberry accompanying him; crossed Roosevelt Boulevard; and went to the Pix Quick store on the other side of the street. In the meantime, McQuown and Scarberry went into the lounge with Scarberry's wife and sat down at a table. During their second drinks, the owner came over and said there was a deputy sheriff outside who wanted to talk to McQuown. McQuown went outside and talked with Pinellas County Deputy Sheriff Janice Shine, who was accompanied by Pinellas County Sheriff Department Sergeant David Van Leeuwen. Shine and Van Leeuwen advised McQuown that Parks had accused him of assault and battery. In response to that, McQuown advised the deputy that there were additional witnesses inside who would be willing to discuss with them the alleged assault. McQuown did not, however, tell the deputy that Respondent Scarberry had in fact pushed Parks. In response to his comment about other witnesses, Sergeant Van Leeuwen said that he should bring them to court with him. Van Leeuwen also advised McQuown that this matter would be reported to the Pinellas County State Attorney and that he, McQuown, should either orally or in writing report the incident to his supervisor. When the deputies left, McQuown went back into the restaurant and discussed the matter with the Scarberrys. Respondent McQuown was not arrested; and, in fact, he did not report the incident to his supervisor the following day, Sunday, October 10, primarily because he did not think that it was of a serious nature that needed reporting. On Monday, October 11, he was home sick with a sinus attack. However, while he was resting at home, Respondent Scarberry brought over a copy of the deputy's report concerning the incident; and when McQuown read it, he immediately went out and hired an attorney. However, even on October 11, he did not report the incident to his supervisor because after having discussed the matter with his attorney, his attorney advised him not to say anything about the incident until he could get back with him further. On Tuesday, October 12, 1982, Respondent McQuown was called into his supervisor's office at the Pinellas County School Board and asked about the incident in question. At first, he declined to answer, upon advice of counsel, and requested an opportunity to speak with his attorney. This was given him; and when he ultimately did get in contact with his attorney, his attorney advised him to go ahead and tell the authorities what they needed to know, which McQuown in fact did. That same day, Deputy Chief Joe Seraca and Officer M. A. McCrimmon, both of the Pinellas County School Board campus police, initiated an internal affairs investigation of the alleged incident at approximately 11:30 a.m. The investigation was to continue for several days. However, after talking with both Respondents Scarberry and McQuown, Deputy Chief Seraca advised them that they should agree to go on leave or vacation until the matter could be fully investigated and resolved. Both agreed to take time off, both gave their deputy cards directly to Deputy Chief Seraca, and turned in their vehicles and equipment until further notice. On October 13, 1982, the Assistant Superintendent, Mr. Tom Dillon, based on a memorandum relating to the incident prepared that same day by Chief Gene Howell, recommended to Dr. Scott Rose, the Superintendent of Schools, that both Respondents be suspended without pay effective October 20, 1982, and that they be recommended to the full school board for dismissal from employment with the Pinellas County Schools. Chief Howell's memorandum, referred to above, outlined eight separate "violations" in the conduct of both McQuown and Scarberry in that McQuown used poor judgment in intervening in the altercation, that he attempted to obstruct the proper administration of justice by not divulging all information pertinent to the investigation, that Scarberry committed a battery on an intoxicated person, that Scarberry did not consider the safety of an intoxicated person by ordering him to leave the area and allowing him to cross a major highway, that Scarberry failed to come forward and relate his involvement in the matter, that Scarberry improperly handled evidence and diverted it for personal use, that both officers failed to notify their supervisor, and that both officers conspired to make a mockery of the justice process by intending to allow the investigation to focus on a charge of battery against McQuown and a subsequent coming forth by Scarberry to discredit the State Attorney. There is no evidence of any conspiracy of any nature and certainly not that as alleged in this memorandum. With regard to Officer Scarberry and the radio, when, on October 12, 1982, Officer Scarberry was asked to turn in his state car, which he had been using in the performance of his duties, it was found to contain in the trunk thereof a small AM/FM radio which was subsequently identified to be a piece of evidence in an investigation run by Officer Scarberry from nine months previously. At the time the investigation was underway, Scarberry placed the evidence in the trunk of the car and, as he relates, logged it into the file in accordance with the procedures in existence at that time. However, subsequent to the time of the confiscation of the property, sometime in May 1982, the policy regarding evidence was changed to require evidence to be logged with proper paperwork and turned in to the evidence custodian. This policy was to pertain also to all evidence currently in the custody of investigating officers. This piece of evidence, along with two boxes of other evidence relating to another offense, had been in the back of Scarberry's state car for a substantial period of time. At the time of the changeover, the two boxes of other evidence were properly released to school board officials, since the property in question was school board property. Scarberry forgot to take the radio back to the person to whom it belonged or to turn it in at the time of that changeover. He admits he should have turned it in, that he overlooked it, and that he forgot about it. Both Scarberry and McQuown have received excellent evaluations by their supervisors over the past seven or eight years. Scarberry has never had any disciplinary action taken against him in the entire time he has been with the Pinellas County School System. McQuown had one minor reprimand several years ago for a minor offense. Aside from that, he has a completely clean record, and both individuals have the high esteem of their co-workers, principals, and deans throughout the Pinellas County School System.
Recommendation As to Respondent McQuown, from the foregoing it is RECOMMENDED: That he be reinstated in his former position as of October 20, 1982, with reimbursement of back pay from that date. As to Respondent Scarberry, from the foregoing it is RECOMMENDED: That he he reinstated in his former position as of October 20, 1982, with back pay from that date, but that he be administratively reprimanded for failure to inventory and report his possession of the AM/FM tape player/radio. RECOMMENDED this 16th day of February, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 16th day of February, 1983. COPIES FURNISHED: Usher L. Brown, Esquire Associate General Counsel School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 33518 Brian C. Harrington, Esquire Fisher & Sauls, P.A. 501 Florida National Bank Bldg. Post Office Box 387 St. Petersburg, Florida 33731 Ky M. Koch, Esquire Bauer & Koch 15201 Roosevelt Boulevard Suite 102 Clearwater, Florida 33520 Scott N. Rose, Ed.D. Superintendent School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 33518
Findings Of Fact Respondent Pobst had been employed by Petitioner and had obtained permanent status in the career service as a half-time University Parking Patroller, at the time he transferred to the position of Motor Vehicle Operator (MVO) on Friday, April 18, 1986. At that time, he came under the supervision of Terry Fisher, Store Supervisor of the University's Central Receiving Department. The MVO position was full time, with regular hours of 8 a.m. to 5 p.m., and Pobst was on probationary status in that job classification at all times relevant to these proceedings. Prior to being hired in that position he had been counseled by Eugene Weber, Stores Manager (supervisor to Terry Fisher), concerning abuse of leave, but the emphasis was on sick leave abuses. On Monday, April 28, 1986, Pobst reported one hour late due to a weekend holdup, and immediately requested and received authorization from Fisher to take unpaid leave so as to obtain a copy of a report from the Tampa Police Department. Pobst had no annual leave available. When he transferred positions he was already in arrears for time off and already owed money for that time off. Fisher requested that Pobst telephone him later in the day. Respondent completed his business with the Tampa Police Department late in the day and did not need additional time. Nevertheless, he did not call Fisher because the work day was completed when he had the first opportunity to call in. Both Pobst and Fisher understood that Pobst would return to work no later than the beginning of the workday on Tuesday, April 29, 1986. Fisher would have granted additional leave on the same terms (unpaid leave with payroll deduction) had Pobst called in, however, Pobst never called in. Pobst did not report for work on Tuesday, April 29; Wednesday, April 30; Thursday, May 1; or Friday, May 2. From the time Respondent left Fisher on the morning of April 28 until the morning of Sunday, May 4, 1986, Respondent had no contact with his immediate supervisor or with any other individual in his chain of supervision at the University. Late the night of April 28, Pobst was injured in a fight. At 12:30 a.m. on April 29, Pobst was arrested for aggravated assault. The charge was ultimately dismissed by the Hillsborough County Circuit Court. However, he arrived at Hillsborough County Sheriff's Central Booking at 2:20 a.m., was booked at 4:54 a.m., and processed at 6:15 a.m. on April 29. From 2:20 a.m. until 6:15 a.m. on April 29, Pobst was either in a Booking/Releasing Section holding cell without telephones, or on a bench in the Receiving Area with two regular local-only telephones as well as two collect-only telephones that resemble pay telephones. He made one telephone call from a collect call telephone. He made that call to the information operator, in an attempt to get Terry Fisher's home telephone number. The call was refused by the information operator because it "was made from a collect call telephone." Respondent was not allowed to make a second telephone call at that time but was told by the officer in charge of him that he would have an opportunity later to make another call. In any case, Pobst would have been unsuccessful in getting Terry Fisher's home phone number because it was unlisted. He did not again ask to use the telephone for the remainder of April 29, 1986, either during business hours when he might have reached Fisher at work or after business hours. From 6:15 a.m. until approximately 1:00 p.m. on April 29, Respondent was in a Housing and Support Section holding cell consisting of three rooms: a dayroom with collect-only telephones that resemble pay telephones; a sleeping room without telephones; and a vestibule between the sleeping and dayrooms. This was cell 200C/2, which is one of several individual sleeping rooms opening onto a common dayroom with collect-only telephones operable from 7:00 a.m. until 11:00 p.m. Although the sleeping area and dayroom are normally kept locked, confined persons usually have free access to both areas 24 hours a day. However, there are times and circumstances in which the areas are separately locked, and confined persons do not have such free access. At approximately 1:00 p.m. on April 29, Respondent was moved to the infirmary for examination and on medical staff instruction was placed in cell 200C/2 "B", a lockdown cell for medical observation. This particular lockdown cell was intended for confined persons who were deemed to need psychiatric observation. In the psychiatric medical lockdown area, incarcerated persons normally are allowed out of their cells for one hour per day to take a shower, watch television, or make telephone calls. However, special circumstances or inappropriate behavior may result in an inmate being denied the opportunity to leave his cell on any given day. Respondent had no access to a telephone during the move, wait, or infirmary/dispensary visit. Although Pobst's testimony emphasized his physical injuries and confused state of mind resulting from the assault by third persons leading up to his arrest in the midnight hours of April 28-29, he also related that while awaiting medical examination on April 29, he engaged in a fight with three police officers who requested that he undress for the physical examination. It appears to be this belligerent attitude which resulted in his being confined in restraints thereafter. Respondent's candor and demeanor and various inconsistencies in his testimony do not render him credible on the issue of inability to contact his employer during the whole of the time prior to his being placed in restraints or the period after he was released therefrom. His testimony that he was so confused at all times that he could not ask for a phone is not believable in light of the police log that he was in "good" condition on May 2, the testimony of Officer Blackwood that even a very "bad" prisoner would get to use the phone or write a letter if he just asked to do so, and that the property inventory showed Pobst had available $.85 for stamps or a local phone call. For these same reasons, Respondent's testimony that he was not permitted to use the phone at any time is not credible. Respondent's father testified to Respondent's disheveled and beat-up appearance on Friday, May 2, but Respondent appears to have been capable of coherent conversation. Respondent did not visit a medical doctor until May 7, 1986, five days after his release, and then did so primarily for the purpose of obtaining a medical excuse in an attempt to be rehired. Pobst was first placed in restraints at some time on Wednesday, April 30, and was in and out of restraints that day and the next, Thursday, May 1. An individual is placed in medically-approved restraints if he is viewed by the staff as a danger to others, or if the medical staff believes that he is at risk to commit suicide. An individual in restraints may not be allowed out of his cell on any given day and in this condition he is not permitted to use the telephone. On Wednesday, April 30, Fisher advised Eugene Weber, Stores Manager, that Pobst had not reported for work or called in since their Monday conversation. On April 30, after telephoning at least four area hospitals, Fisher telephoned Hillsborough County Sheriff's Office Central Booking and was informed that Pobst was in jail for aggravated assault and that all inmates could make as many telephone calls as they wanted. Fisher reported this information to Weber who reported the same to his supervisor, Keith Simmons, Director of Procurement. 1/ On Thursday, May 1, Simmons telephoned Hillsborough County Jail Central to confirm Fisher's report that Pobst had access to a telephone and was told that all an inmate had to do was ask and that inmates are let out for just such purpose each day. In reliance on this information, Simmons contacted Roland Carrington, Director of Labor Management Relations, requested advice regarding the appropriate University response to Respondent's unauthorized absences, and was told it was appropriate to invoke the job abandonment rule. On Friday, May 2, Respondent Pobst was not in restraints at any time during the day, and his condition and attitude were both noted as "good" on the police log completed at 10:00 a.m. and 4:30 p.m. Respondent did not ask to use a telephone on Friday, May 2 until at least 5:00 p.m., at which time he telephoned his mother in Indiana and then waited in the dayroom for release. When Respondent was allowed to use the telephone on May 2, 1986, he instructed his mother to have his father call his employer to notify him of his whereabouts. She in turn telephoned his father, Robert Pobst, in Tampa. Robert Pobst called for his son at 8:25 p.m. and effected release on bond at 9:40 p.m. on Friday, May 2. After being released from jail at 9:40 p.m. on Friday, May 2, 1986, both Respondent Pobst and his father attempted to reach Respondent's superiors at the University of South Florida. Respondent also attempted to reach Terry Fisher at home, but did not have enough information to get in touch with the right person. On Sunday, May 4, Respondent reached Weber at home by telephone. Pobst explained the circumstances of his absence to Mr. Weber, and informed him he desired to report for work the following morning. Weber explained that Respondent's unauthorized absence was deemed as a resignation via job abandonment and that the paper work had already been processed. However, the true chronology is that upon Weber's notification Friday, May 2, that Pobst had again failed to appear or call that day, Simmons instructed his administrative assistant to prepare a letter of notification to Pobst. The letter provided that he was deemed to have resigned via abandonment. However, it was not until Monday, May 5, 1986, that Simmons actually mailed Pobst the notification of acceptance of his resignation via job abandonment by certified mail, return receipt requested. On Monday, May 5, 1986, before receiving the official notification of abandonment, Pobst reported to the University one hour before the beginning of the work day. At that time Pobst's request for reconsideration of his resignation via abandonment was declined by Simmons in reliance on information from the Sheriff's Department which contradicted Respondent's assertion that he was unable to contact the University during the whole of April 29 through May 2 inclusive. Terry Fisher had the authority to grant Pobst leave for the time he was incarcerated in the Hillsborough County Jail, and would have done so had Respondent given him a telephone call requesting such leave. On April 30, 1986, Terry Fisher, Eugene Weber, and Keith Simmons, all had knowledge that Respondent was incarcerated in the Hillsborough County Jail and had not appeared for work because he was physically unable to be present at work. Although each of Respondent's superiors knew that Respondent was incarcerated in the Hillsborough County Jail and was unable to be at work for that reason, none made any attempt to contact Respondent in order to gain direct information on his employment status or intentions. It was not demonstrated that any University supervisor had any animosity toward Pobst, and it appears that it was not Pobst's being in jail but his failure to call in and their belief that he could have called in and did not do so that influenced Pobst's superiors to invoke the resignation via abandonment rule on May 2. Mr. Weber specifically chose to invoke the rule because he had made a negative assessment of Pobst's credibility from previous absence excuses and because he relied on the telephone representations by law enforcement personnel that Pobst could have called at any time. Additionally, Weber, who was Fisher's superior, took into consideration that late April and early May was an especially busy time of year for Central Receiving because it was the end of the fiscal year and all University departments were receiving large orders in an attempt to exhaust their old budgets before claiming new ones. After May 5, Respondent made numerous efforts to regain his employment. He talked with Fisher, Weber, Simmons, and Roland Carrington in the University's Personnel Office. He requested his then-current position, OPS employment, and work he had performed prior to his transfer on April 18, 1986. Following his termination from employment Respondent made an application for Unemployment Compensation. Because the University of South Florida initially contested his eligibility, Respondent was required to appeal the initial denial of unemployment compensation. Thereafter, Respondent and the University of South Florida were parties before an appeals referee, who conducted a de novo evidentiary hearing. The issue before the appeals referee was whether Respondent "voluntarily left employment without good cause." In determining this issue, the appeals referee applied a test of "good cause" associated with "misconduct" as those words of art are defined or contemplated in Chapter 443 Florida Statutes, determined that Respondent had committed no misconduct, and awarded unemployment compensation.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that a Final Order be entered finding Respondent to have abandoned his position with the University of South Florida. DONE and RECOMMENDED this 10th day of April, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1987.
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
