The Issue Whether Petitioner has cause to terminate Respondent's employment as a school custodian.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by Petitioner as a school custodian. In the fall of 1994, the Respondent was arrested and charged with the offense of theft. The property in question was a Green Machine weed eater that was owned by the Petitioner. Petitioner assigned John Bell, an investigator employed by the Petitioner's police department, to investigate the alleged theft. Respondent admitted to Mr. Bell that he had possession of the piece of equipment, he knew that it was valued at approximately $300.00, but he asserted that he bought the machine for $100.00 cash from an unknown person Respondent said was a school board employee. Respondent did not have a receipt for the purchase or any other evidence to substantiate his explanation as to how he came into possession of the stolen property. In December 1994, Respondent was found guilty of theft following a bench trial in the criminal proceeding. Adjudication of guilt was withheld and he was fined $105.00 in court costs. He was ordered to pay restitution to the School Board in the amount of $160.82 for the cost of its investigation. The School Board has the authority to terminate Respondent's employment for cause. The School Board's Policy 3.27 pertains to suspension and dismissal of employees. If the Superintendent finds probable cause to recommend to the School Board that a member of the non-instructional staff be suspended without pay and subsequently dismissed, the Superintendent is required to notify the employee in writing. The policy also contains provisions for the information that must be included in the notice to the employee. By letter dated February 9, 1995, the Superintendent advised Respondent that cause existed to terminate his employment on the grounds of theft of school property and misconduct in office. On February 21, 1995, the School Board, based on the Superintendent's recommendation, suspended Respondent's employment without pay pending this termination proceeding. The Superintendent and the School Board followed the pertinent policies in suspending the Respondent's employment without pay pending this dismissal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school custodian. DONE AND ENTERED this 21st day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 21st day of June, 1995. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Mr. Noyland Francis 7326 Willow Spring Circle Lantana, Florida 33463 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813
Findings Of Fact At all times pertinent to the issues herein, Respondent, Lykes Brothers, Inc. operated a meat packing plant in Plant City, Florida. Hennis Washington, III was employed by Respondent at that plant as a utility worker. Petitioner, Hillsborough County, through its Human Resources and Equal Opportunity Department, had the authority to investigate and administratively enforce County Ordinances relative to unlawful discrimination in employment. Respondent is 5'1/2" tall and weighs about 114 pounds, much the same as at the time in issue. He is a power lifter and claims to be able to lift 405 pounds in a dead lift. He was employed at the Respondent's plant from July, 1991 to May, 1993, when he was terminated in the action which is the subject of this hearing. On May 24, 1993, while in the performance of his duties, Mr. Washington was carrying a stack of empty boxes from one place to another through the plant's bacon curing department. The stack of boxes he was carrying extended above his head and as a result he was unable to see in front of him. As he proceeded down the aisle, he ran into some resistance which prevented him from going further. He changed direction to the side where he could see, and which, he believed, was clear, and again ran into resistance which, this time, caused him to drop the boxes. After the boxes fell, and he could see in front of him, he observed Mr. Romero, a sanitation worker, in front of him, smiling. There is some question whether or not Mr. Romero took a step toward Mr. Washington. At hearing, Mr. Washington said he did and that he felt threatened by Mr. Romero's advance, though at his grievance hearing he did not indicate that. In response, howevever, Mr. Washington moved toward Mr. Romero, a man approximately 5'8" tall and weighing approximately 175 pounds, picked him up, and dropped him on the floor. As a result of that, Mr. Romero claimed to have injured his back and reported to the medical office by which he was released from duty for the evening. After this action, Mr. Washington was terminated from employment with the company. He is of the opinion it was because of his race, but admits he was advised by his supervisor, Mr. Freeman, it was because it was felt he had over- reacted to the situation with Mr. Romero. Nonetheless, an employee action request initiated by Mr. Freeman, dated May 24, 1993 reflected that Mr. Washington was administratively terminated. Administrative termination deals with unauthorized absences, according to the company's Employee Handbook. Mr. Freeman, himself African-American, was not present at the time of the incident, but was informed of it shortly thereafter, and called Mr. Washington to his office. Mr. Washington admitting picking up Mr. Romero, whom he did not previously know, and thereafter dropping him to the floor. Mr. Freeman, after finding out what happened, referred the matter to Mr. Harris, the employee relations manager, who is also African-American. Mr. Freeman did not interview Mr. Romero. He prepared the administrative termination notice upon direction of his supervisors. He claims the termination was based on Mr. Washington's fighting and not on the basis of his race. Mr. Harris, over a period of the next several days, conducted his independent investigation into the incident which investigation included speaking with Mr. Washington, Mr. Romero, and several other witnesses. During this period, both Mr. Washington and Mr. Romero were suspended. Mr. Harris' investigation confirmed there had been an incident, but he could find no evidence that Mr. Romero had pushed the boxes Mr. Washington was carrying. It was for that reason that Mr. Romero was not disciplined. The termination of Mr. Washington was predicated upon the fact that he had been engaged in a fight with another employee. The Respondent's personnel rules indicate that fighting, as opposed to mere horseplay, is a Class I infraction, the punishment for which can include dismissal. It includes the throwing of punches, the use of weapons, and the threat of injury. Horseplay, on the other hand, usually amounts to no more than pushing, tugging, and actions which are not likely to result in injury. In the instant case, Mr. Washington's actions constituted a direct battery of Mr. Romero which resulted in injury. It was, therefore, properly considered fighting. Mr. Harris concluded that Mr. Washington had reacted to the situation improperly. If, as he claimed, Mr. Washington felt he was being harrassed by Mr. Romero and Mr. Barbosa, who was with Mr. Romero at the time of the incident, he should have reported the matter to his supervisor rather than taking matters into his own hands. Employees are given an Employee Handbook when they begin employment with the company, and they are taught, in a four hour orientation course given to all employees, to back off from incidents of this nature - not to fight. Because he felt Mr. Washington had overreacted, Mr. Harris recommended termination, even though a check of both employees' personnel records indicated neither had any previous incidents. At the time of the incident, Lykes had approximtely 750 production maintenance employees, (Mr. Washington's category). Of this number, between 30 and 35 percent were African-American, 15 percent were Hispanic, 5 percent were other minorities, and between 45 and 50 percent white. Mr. Hampton, Lykes' Vice-President for Employee Relations, was made aware of the situation involving Mr. Washington by Mr. Harris, who recommended termination. Mr. Hampton agreed with this recommendation because Mr Washington had thrown Mr. Romero down and injured him. The recommendation for termination was not based on race and was consistent with discipline taken in prior incidents. Specifically, Mr. Hampton referred to a situation occuring not long before the instant case in which two white employees were initially terminated for an altercation they had. In that case, the investigation showed the employees had been fighting and both initially were fired. However, the union filed a grievance. A hearing was held and the decision to terminate was upheld. Thereupon, the union indicated its intent to take the matter to arbitration, and as a result of a meeting held on that issue, it was determined that the incident was more horseplay than fighting and there was little likelihood the company could prevail at arbitration. That conclusion was based on the fact there were no blows struck, there was no injury, and the incident stopped immediately upon the arrival of the supervisor. The employees thereafter were disciplined and reinstated. Mr. Washington also filed a grievance regarding his case. A hearing was held persuant to the union contract. Based on the information presented at the hearing, the grievance committee, made up of two African-American employees and one white employee, concluded there was insufficient evidence to take the issue to arbitration. This committee included the same individuals who heard the previously noted grievance, regarding the white employees. Mr. Washington asserts that because he had been assigned to a position previously held by Mr. Romero, who, he claimed, was demoted from utility to sanitation, Mr. Romero was angry with him and was looking for trouble. The evidence of record indicates that in March, 1993, Mr. Romero was transferred to another position on a different shift from that he was then occupying. The evidence also indicates the position to which Mr. Washington was assigned cannot be considered to be Mr. Romero's old position. Utility and sanitation jobs are, purportedly, on a par. Mr. Washington was assigned to a job identical to that which Mr. Romero had vacated, but on a different shift. Mr. Romero would have had no reason to think Mr. Washington took his job any more than any other utility employee. Further, there is no evidence, save the claim by Mr. Washington, that Mr. Romero acted in a threatening manner. Mr. Glisson, a witness to the incident, indicated the two "tangled". but there was no indication of aggressiveness by Mr. Romero. Taken together, while Washington may have believed Mr. Romero was threatening him, there was insufficient provocation for him to react in the way he did. Under the terms of the Employee Handbook, he should have retreated, and his actions constituted fighting which is grounds for discipline. It is impossible to conclude, from the evidence of record, that the termination of Mr. Washington resulted from anything other than a reaction to his demonstrated misconduct. Only one question remains unanswered. On June 1, 1993, an Employee Action Request was prepared, purporting to administratively terminate Mr. Washington because of fighting on the job and threats of violence. Counsel for the County claims this is an alteration of that action form prepared on May 24, 1993. Both exhibits were photo copies and it is impossible to tell, with certainty, that an alteration occurred. However, a close comparison of the copies leads to the conclusion that the latter dated form is, in reality, an alteration of the former with the dates changed, and an addition of fighting and threats with a direction to remove Mr. Washington from the payroll. No evidence was presented regarding a reason for the alteration, and nothing improper can be legitimately inferred therefrom. Counsel representing Mr. Washington makes reference to the opinion of an Appeals Referee of the Florida Department of Labor and Employment Security, dated July 30, 1993, which, in reversing the determination of the claims examiner in Mr. Washington's unemployment compensation claim, determines that he was not the aggressor in the incident that led to his discharge, and that his involvment was merely for self-protection. The Referee also finds that Mr. Washington's actions could not be viewed as misconduct connected with his work, and he is, therefore, not disqualified for unemployment compensation benefits. The Referee concludes, as a matter of law, that inefficiency, unsatisfactory conduct, and/or good faith errors in judgement or discretion are not to be deemed "misconduct" "within the meaning of the statute, (Chapter 443, Florida Statutes). The finding of the Appeals Referee is not binding on the undersigned in this action. Mr. Washington was deemed by his employers to have, by fighting, overreacted in the confrontation with Mr. Romero. Overreaction can be equated with poor judgement which, in an industry as hazardous as is meat packing, may well serve as appropriate grounds for discharge even if not classified as misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Determination of No Cause be entered by the Hillsborough Human Relations Board concerning the termination from employment of Hennis Washington, III by the Respondent, Lykes Brothers, Inc. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorported herein. Second sentence rejected as a being more a Conclusion of Law than a Finding of Fact. - 12. Accepted and incorporated herein. Irrelevant. Accepted. Accepted. - 17. Accepted. 18. Accepted. FOR THE RESPONDENT: 1. 2. & 3. 4. 5. & 6. Accepted Accepted Accepted Accepted and and and and incorporated incorporated incorporated incorporated herein. herein. herein. herein. 7. - 9. Accepted. 10. & 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. COPIES FURNISHED: Catherine P. Teti, Esquire Office of the County Attorney Hillsborough County P.O. Box 1110 Tampa, Florida 33601 Michael D. Malfitano, Esquire Malfitano & Campbell, P.A. 101 E. Kennedy Boulevard Suite 1080 P.O. Box 1840 Tampa, Florida 33601-1840 Daniel A. Kleman County Administrator Post Office Box 1110 Tampa, Florida 33601
The Issue Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and 112.3187, Florida Statutes1/; and, if so, what remedy is appropriate.
Findings Of Fact Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday. Petitioner refused to teach the two classes. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides: Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added). Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action. Petitioner failed to present any credible evidence that Respondent discriminated against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2017.
The Issue The issues to be determined in this proceeding are whether St. Lucie County School Board (School Board) Rules 6.16 and 6.50*+ are invalid exercises in delegated legislative authority as defined by sections 120.52(8)(c), (d), and (e).
Findings Of Fact Ms. Jones is currently an employee of the St. Lucie County School Board, and has a professional service contract pursuant to section 1012.33, Florida Statutes. Her status with the School Board is “suspended without pay,” for reasons that are not relevant to this proceeding. As a classroom teacher, Ms. Jones is covered by the Collective Bargaining Agreement between the School Board of St. Lucie County and the Classroom Teachers Association. On June 13, 2017, the School Board suspended Ms. Jones without pay and on July 27, 2017, a Petition for Termination in Termination I was referred to the Division of Administrative Hearings for an evidentiary hearing. At that point, while Ms. Jones remained an employee of the School Board, she received no pay and no benefits from the School District. She began to look for other employment to support herself and her family. Ms. Jones applied to and was offered a job to work as a music teacher by the Somerset Academy St. Lucie (Somerset). Somerset is a charter school in St. Lucie County sponsored by and located within the geographical bounds of the School District and the jurisdictional bounds of the School Board. Ms. Jones did not submit an application for leave and the School Board did not approve a request for leave of absence in order for Ms. Jones to work at Somerset. By letter dated August 28, 2017, Superintendent Gent notified Ms. Jones of his intent to recommended to the School Board that she be terminated for grounds in addition to the already-existing suspension, i.e., for violating the School Board’s Rules 6.16(1); 6.301(2), (3)(b)(i), (3)(b)(xix), and (3)(b)(xxix); and 6.50*+. That letter became the basis for the Termination II proceeding. The factual basis for pursuing the second termination proceeding was that Ms. Jones was working at Somerset without having applied for and received approval for a leave of absence from the School Board. The merits of the School Board’s allegations in this second proceeding are no longer relevant in terms of Ms. Jones’ employment with the School Board, as the School Board, through counsel, has represented that the School Board no longer intends to pursue the allegations in Termination II. The allegations are relevant and informative, however, in establishing the School Board’s interpretation of its rules and establishing Ms. Jones’ standing to challenge the validity of those rules. The evidence presented at hearing established that Ms. Jones has standing to bring this rule challenge. School Board rule 6.16 is entitled “Dual employment,” and provides as follows: No person may be employed to work in more than one position in the school system except upon the recommendation of the Superintendent and approval of the School Board. No employee shall accept other employment that might impair the independence of his or her judgment in the performance of his or her duties. Rule 6.16 lists as its statutory authority sections 1001.41, 1012.22, and 1012.33, Florida Statutes, and lists sections 1001.43 and 1012.22 as the laws implemented. No reference to authority granted by the Florida Constitution is identified. School Board Policy 6.50*+ is entitled “Leave of Absence,” and provides in pertinent part: Leave of absence. A leave of absence is permission granted by the School Board or allowed under its adopted policies for an employee to be absent from duty for a specified period of time with the right to return to employment upon the expiration of leave. Any absence of a member of the staff from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. Length of Leave and Pay. Generally, no leave or combination of leaves, except military leave or Workers’ Compensation Leave, will be granted for a period in excess of one year. Illness-in-line-of- duty leave may not be extended beyond the maximum medical improvement date or a maximum of two (2) years from the date of injury, whichever is the earliest date. Leave may be with or without pay as provided by law, regulations of the State Board, and these rules. For any absence that is without pay, the deduction for each day of absence shall be determined by dividing the annual salary by the number of days/hours for the employment period. Employment leave. A leave shall not be granted to any employee to accept other employment unless the leave is to accept employment at a charter school as provided in paragraph (5) below. Accepting employment while on a leave of absence cancels the leave automatically. The person on leave will be notified that he or she must return to work with the School Board immediately, resign or be terminated. The Superintendent shall develop procedures to implement leave provisions. Charter School Leave. An employee may be granted leave to accept employment at a charter school in St. Lucie County in accordance with the following provisions: Teachers. Teachers may apply for leave to work at a charter school. The School Board will not require resignation of teachers desiring to work at a charter school. Teachers granted such leave by the School Board are not required to be on a continuing or professional services contract and shall not be subject to the seven (7) continuous years’ service requirement. Should a teacher on leave elect to return to work at the District, the teacher shall return to the teacher’s former position or a comparable position for which the teacher is qualified. * * * Method to Request Leave. An application to request leave to accept employment in a charter school shall be submitted using the procedures specified in Policy 6.501(1). For ten month instructional personnel, an application to request leave to accept employment at a charter school shall be submitted to the principal at least forty-five (45) days prior to the first day of work for the school year . . . . Insurance and Retirement Benefits. It shall be the sole responsibility of the charter school site to provide insurance and retirement benefits to charter school employees . . . . * * * Notice of Intent to Return. Employees on charter school leave shall give the School Board written notice of their intent to return at least sixty (60) days prior to the beginning of the semester they wish to return. Requirement for Annual Renewal. Charter school leave must be renewed annually. It is the sole responsibility of the employee on leave to submit an annual written letter notice of leave to the Superintendent or designee, and a copy of the annual written letter notice of leave to the employee’s school principal or immediate supervisor, as applicable, on or before April 1 of each year if they wish to renew their charter school leave for the following school year. Employees who do not submit the required annual leave form on or before April 1st will be considered to have voluntarily terminated their employment, and will no longer be eligible for any benefits or other consideration under this leave policy. (Emphasis supplied.) 11. Rule 6.50*+ lists sections 1001.41, 1012.22, and 1012.33 as its statutory authority, and lists sections 1001.43, 1002.33(12)(e), 1012.22, 1012.61, 1012.63, and 1012.66 as the laws it implements. No reference to authority granted by the Florida Constitution is identified. Rule 6.50*+ provides that if a teacher working for the School Board wishes to work at a charter school within St. Lucie County, that teacher must apply for permission to do so. However, the definition of a leave of absence in the first paragraph of rule 6.50*+ specifically provides that a leave of absence allowed under the rule is for a specified period of time “with the right to return to employment upon the expiration of leave.” By its terms, the rule does not appear to encompass those employees whose status is “suspended without pay,” given that those employees who are suspended without pay do not necessarily have the right to return to employment upon expiration of leave. Rule 6.50*+ also provides that an application for charter school leave shall be provided to the teacher’s principal at least 45 days before the beginning of the school year. For teachers on suspension without pay or who are not assigned to a particular school, there is no principal to whom the application can be given. The rule does not specify an alternative. Instead, Mr. Clements stated that it would be up to Ms. Jones (and presumably, anyone in her circumstance) to ask where to submit an application for charter school leave. The School Board interprets rule 6.50*+ as applying to all employees, regardless of their status. Rule 6.50*+ does not indicate what criteria would be used for determining if an employee’s application for leave should be granted. Mr. Clements testified that the decision is made on a case-by-case basis. He also testified that had Ms. Jones applied for charter school leave, he would not have recommended that her request be approved, because as a teacher on unpaid suspension, she is not in good standing with the School District. Nothing in rule 6.50*+ alerts Ms. Jones, or any other teacher in her circumstances, that her suspension without pay would be a basis for disapproval of an application for charter school leave. Nothing in the rule alerts any applicant of the criteria to be considered for the grant or denial of a requested leave of absence. The consideration of a staff member’s current disciplinary status is not an unreasonable consideration for the Superintendent or for the School District. It is not, however, included in the rule as a basis for deciding whether a request for charter school leave should be approved or denied.
The Issue The issue is whether Respondent, Duval County Public Schools (DCPS), violated the rights of Petitioner, Katherine E. Otto, under the Florida Civil Rights Act, chapter 760, Florida Statutes.
Findings Of Fact Ms. Otto filed a Complaint with FCHR, alleging race, sex, and age discrimination against DCPS, having been employed by the school district as a school teacher from December 2009 until September 2010. The Complaint alleges that Dr. Alvin Brennan, the principal of the Forrest High School, where Ms. Otto worked as a teacher: (a) announced at a staff meeting that he "prefers all black male young teachers"; (b) announced at another staff meeting that "anyone who takes off a Friday or a Monday . . . will be fired"; (c) verbally harassed Ms. Otto; and (d) discharged her for calling in sick. The face of the Complaint shows that it was signed by Ms. Otto on October 24, 2010 - only weeks after the last date of alleged discriminatory conduct on September 8, 2010. However, the "date stamp," which also appears on the face of the Complaint, shows that it was not received by FCHR until October 25, 2011. Notably, FCHR sent to DCPS a "Notice of Filing of Complaint of Discrimination" on November 10, 2011, which was stamped as received by DCPS on November 16, 2011. At the hearing, Ms. Otto could not explain the apparent delay of exactly one year and one day between the date she signed the Complaint and the date it was stamped as received by FCHR. Ms. Otto testified that she never actually typed the Complaint. Further, she stated the typed Complaint was inconsistent with a handwritten version she originally submitted to FCHR "a month or two before" October 24, 2010. Surmising at the hearing that "someone" at FCHR must have typed the Complaint, Ms. Otto testified that she signed and returned the document even though it showed that she was 11 years older than her actual age of 50 years. Ms. Otto's Petition for Relief contains accusations about harassment and "racists remarks" by Dr. Brennan, and adds that he and other DCPS personnel "committed purjery to [the Commission]" [sic] during its investigation of the Complaint. Unlike the Complaint, the Petition for Relief also states that Ms. Otto was "was fired for no reason" as opposed to being fired for calling in sick. At the final hearing, Ms. Otto testified that she did not know why she was fired, and it was only "possible" that she was fired due to her race, gender, or age. Ms. Otto testified that her Complaint and Petition were based on events in August and September 2010, shortly after Dr. Brennan became the principal of Forrest High School. By the end of the 2009-2010 school year, Forrest High School was identified as "critically low performing," having received consecutive "school grades" of "F" or "D" over the preceding school years. The District was, therefore, required to treat Forrest High School as a "turn-around school," and replace/"reconstitute" much of its staff and administrative team. Dr. Brennan, a veteran educator and administrator of 27 years, was selected by the superintendent to replace the principal at Forrest High School at the beginning of the 2010-2011 school year, since he had a successful track record for improving other low-performing schools. Dr. Brennan conducted various staff meetings just before and during the first two weeks of the school year. According to Ms. Otto, Dr. Brennan stated at one such meeting that anyone who took a Friday off would be fired. Ms. Otto testified that Dr. Brennan stated at another meeting that he prefers to hire young African-American men. Ms. Otto thereafter "felt like [she] was being harassed, discriminated against because [Brennan] was just going after white women." Despite these negative "feelings" about Dr. Brennan, Ms. Otto never made a complaint to the school district about him or his comments. Ms. Otto stated that she privately met with Dr. Brennan on only two occasions. During the first private meeting at the beginning of the 2010-2011 school year, Dr. Brennan "yelled" at Ms. Otto for speaking with state officials who visited Forrest High School due to its "turn•around" status. The second private meeting was on September 8, 2010, when Dr. Brennan purportedly "harassed" Ms. Otto for missing lesson plans, and "yelled" that she was fired. In the days leading up to the September 8 conference, Dr. Brennan and Assistant Principal Jeravon Wheeler visited Ms. Otto's class and warned her about missing lesson plans. At all times, Ms. Otto was aware that she was required to have lesson plans readily available in her class. During a scheduled classroom observation on August 31, 2010, Ms. Wheeler (once again) noted Ms. Otto's lack of lesson plans. A post-observation conference was to take place on Friday, September 1, 2010. There is conflicting evidence as to whether Ms. Otto was present on that date. The record contains a post-observation "teacher assessment instrument" which Ms. Otto apparently signed and dated on September 1, 2010. However, Ms. Otto claims to have called in sick after her observation and did not return to the school until September 8, 2010. When summoned to Dr. Brennan's office on the morning of September 8, 2010, Ms. Otto assumed he wanted to discuss her illness-related absence and her discussions with "people from the State." Ms. Wheeler also attended the September 8 conference with Ms. Otto and Dr. Brennan. Contrary to Ms. Otto's view, Dr. Brennan and Ms. Wheeler testified that the September 8 conference was actually called to: (a) discuss the classroom observation; present a "non-compliance letter" for Ms. Otto's repeated failure to provide lesson plans; and (c) place her on a "Success Plan" formulated to improve her overall teaching performance. Ms. Otto walked out of the September 8 conference before Dr. Brennan had the chance to provide her with the Success Plan and non-compliance letter. Dr. Brennan's contemporaneous handwritten notes on the non-compliance letter indicated that Ms. Otto abruptly quit during the September 8 conference and "walked off the job." Ms. Otto testified that she left the September 8 conference because Dr. Brennan was screaming at her and yelled that she was fired. She denied, however, that Dr. Brennan made any comments about race, gender, or age at that time. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan neither raised his voice nor stated that Ms. Otto was fired during the September 8 conference. Rather, according to Dr. Brennan and Ms. Wheeler, it was Ms. Otto who became indignant during the September 8 conference, and who abruptly quit and walked out of the school after "throwing" her district-issued laptop on the desk of Dr. Brennan's assistant. Ms. Otto testified that she ultimately submitted lesson plans at some point after her August 31, 2010, observation, though that was disputed by Dr. Brennan. Regardless, Ms. Otto admitted during the hearing that she was "unprepared" during Ms. Wheeler's observation and the lesson plans entered into the record which she purportedly prepared for the August 31 observation were incomplete and inadequate. Dr. Brennan and Ms. Wheeler concurred that the lesson plans presented at the hearing were defective. Ms. Otto testified that she contacted a lawyer with the teacher's union immediately after the September 8 conference. Ms. Otto thereafter learned that Dr. Brennan did not have the authority to unilaterally fire her. Nevertheless, Ms. Otto advised the union lawyer that she would not go back to the school in any event because she was "allergic to it." Ms. Otto testified that the union lawyer gave her assurances that she would be reassigned to another school. These and other statements purportedly made by the union lawyer amounted to hearsay and were not corroborated by other, independent evidence. Shortly after the September 8 conference, Ms. Otto received from the school district a letter dated September 9, 2012, which indicated its recognition of Ms. Otto's resignation and encouraged her to contact the sender (Ms. Dawn Gaughan) with any questions. Ms. Otto did not respond to the September 9, 2012, letter, assuming that the union lawyer was securing her another teaching position in a different school. Ms. Otto testified that she called in substitutes on the days immediately following the September 8 conference using the school district's automated telephone system. However, she also stated that the personal identification number she needed to access the system was invalid at the time of her departure from the school. Having lost faith in the union lawyer's assurances, Ms. Otto testified that she eventually spoke with the school district human resources' personnel about the September 8 conference, but could not remember when that occurred. Ms. Otto subsequently filed a claim for unemployment compensation which was rejected on the grounds that she voluntarily resigned from her position. However, an Unemployment Compensation Appeals Referee ultimately determined that Ms. Otto was entitled to compensation because (during a telephonic hearing on the matter) the school district presented inadmissible hearsay to debunk Ms. Otto's assertion that she had been fired. At the hearing, Ms. Otto presented the testimony of Ms. Judith Julian, who claimed that she was "forced to resign" due to harassment by Dr. Brennan and Ms. Wheeler. Ms. Julian stated that Dr. Brennan "harassed" her by forcing her to park in the teacher's parking area, and Ms. Wheeler harassed her by "following" Ms. Julian on campus during a phone call. Ms. Julian had "no idea" whether such "harassment" was motivated by any animus toward her gender, age, or race, and also commented that she was "replaced" by a male Caucasian. According to Ms. Julian, lesson plans: (a) are "absolutely" important; (b) should be available at all times; and are part of a teacher's contractual duties. Ms. Julian testified that the only personal interaction she had with Dr. Brennan was during a classroom observation when Dr. Brennan stated that she was "a great teacher." Ms. Julian stated that she never heard Dr. Brennan make statements about Ms. Otto's race, gender, or age. Ms. Julian did not attend and, therefore, could not comment on the September 8, 2010, conference. She did, however, recall statements purportedly made by Dr. Brennan at a staff meeting regarding a preference to hire African-American teachers. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan made no such announcement, though he did discuss the need for a staff which reflected the demographics of the community served by Forrest High School. Dr. Brennan also presented statistics showing that his hiring decisions had no appreciable impact on staff demographics at the high school. Rather, African-American staff members increased by only seven percent and the percentage of male teachers at the school actually decreased between the 2009-2010 and 2010-2011 school years. Regardless, the testimony and evidence of record show that school principals do not have unilateral authority to terminate a teacher. The testimony offered by Dr. Brennan and Ms. Wheeler was consistent with contemporaneous notes and statements they prepared in September 2010 as well as other written statements they later prepared for the School District's Office of Equity and Inclusion in November 2011. The collective bargaining agreement between the school district and the teachers' union, Duval Teachers United (DTU), stresses the importance of lesson plans and the expectation that teachers shall have them at all times. The agreement also provides that insubordinate conduct and failure to prepare lesson plans merit discipline up to and including dismissal. Further, the collective bargaining agreement also contains school district policies against harassment and directions on how to process complaints. Ms. Otto was aware of these policies and procedures, but never lodged any complaints against Dr. Brennan with school district officials. Based on the testimony and evidence of record, the greater weight of the evidence demonstrates that Ms. Otto resigned from her position during a September 8, 2010, conference with Dr. Brennan and Ms. Wheeler. Further, the evidence shows that Ms. Otto failed to provide timely and complete lesson plans despite several warnings from her superiors. This failure alone would support dismissal, as would Ms. Otto's insubordinate conduct or abandonment of her post. The Employment Complaint of Discrimination, filed with FCHR by Ms. Otto appears to be signed and dated by her on October 24, 2010, only 46 days after the last incident giving rise to her claim occurred. However, the date stamp from FCHR on that document is for October 25, 2011, more than 365 days after the September 8, 2010 incident. No explanation was given for this discrepancy in the dates on the complaint giving rise to this matter. Ms. Otto testified at the hearing that she "didn't care which way this case goes" and was "happy" just to be there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Katherine E. Otto's Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 28th day of December, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine E. Otto Apartment 407 7740 Plantation Bay Drive Jacksonville, Florida 32344 Katherine E. Otto 785 Oakleaf Plantation Parkway, Unit 814 Orange Park, Florida 32065 David J. D'Agata, Esquire Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
Findings Of Fact Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties) Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties) The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff. In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995. Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records. When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended. Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances. From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent. On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996: Dear Mr. Auerbach: Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence. Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association. (Respondent’s exhibit 1) Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his supervisor, so that he could work out the appropriate leave based on the doctor’s determination. In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating: This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none. (Petitioner’s exhibit 1) Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine. Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief: “I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer. Between April 16 and June 14, 1996, Respondent was absent forty-two work days. Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent: Dear Mr. Auerbach: Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent. At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996. (Petitioner’s exhibit 3) There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996: Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms. (Respondent’s exhibit 3) On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick leave without approved leave and his failure to return to duty after being released by his doctor. There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”. Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences. Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work. Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain. Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days. The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period. Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A). When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D) Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence. The collective bargaining agreement describes procedures for discipline of employees, including this: 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. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) ...[e]xcept 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. (Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
Findings Of Fact Respondent had been employed by Petitioner as a teacher's aide for approximately eight years, and was so employed at the beginning of the 1982-83 school year. She was terminated by Petitioner at its meeting on December 8 1982. Respondent had 34-1/2 days of absences without accrued leave during October, November, and December, 1982. Most of the early absences were authorized by Dr. Patrick Gray, a personnel official of Petitioner's. On November 3, 1982, Dr. Gray informed Respondent that she was at that time on unauthorized leave and gave her ten days to request leave or face charges of abandoning her position (Petitioner's Exhibit 1). Respondent's failure to comply with this ultimatum led to her discharge. Respondent had serious personal problems during this period. Petitioner attempted to obtain psychiatric assistance for her, which she rejected. Respondent conceded that she abandoned her position, citing low pay and Petitioner's failure to promote her. She voiced these and other grievances with the school system, all of which are beyond the scope of this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order affirming Respondent's discharge from its employment. DONE AND ENTERED this 6th day of May, 1983, at Tallahassee, Florida. R. T. CARPENTER, 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 6th day of May, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Ms. Mary A. Lilly 14990 Northeast 10 Court Miami, Florida 33161 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issues are whether subject matter jurisdiction exists in this proceeding, and, if so, whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Petitioner is the agency responsible for the School District of Hendry County, Florida (the District). Petitioner employed Respondent in the District as a custodian from July 8, 1997, until April 4, 2006. A custodian is an educational support employee as defined in Subsection 1012.40(1)(a), Florida Statutes (2005). The alleged grounds for the termination of Respondent's employment may be fairly summarized as involving two unauthorized absences during the workdays of March 15 and 16, 2006. On March 17, 2006, the principal met with Respondent in the principal's office. The assistant principal and head custodian were also present. Respondent declined the opportunity to have a union representative present. By letter dated April 24, 2006, the District superintendent provided Respondent with written notice that Petitioner had terminated Respondent's employment on April 4, 2006 (written notice of termination). By letter dated April 28, 2006, Respondent's counsel requested an administrative hearing (the request for hearing). Respondent challenges the subject matter jurisdiction in this proceeding.1 The facts relevant to Respondent's jurisdictional challenge are undisputed.2 Petitioner did not request the assignment of an ALJ within the statutorily prescribed 15-day time limit. When Petitioner did request DOAH to assign an ALJ, the 60-day time limit for commencing the hearing had already expired.3 Petitioner requested the assignment of an ALJ on August 7, 2006, approximately 101 days after receiving the request for hearing from Respondent.4 Subsection 120.569(2), Florida Statutes (2005), required Petitioner to request the assignment of an ALJ within 15 days of the date Petitioner received the request for hearing. The timeline for conducting the administrative hearing is prescribed in the Collective Bargaining Agreement 2004-2007 between the District School Board of Hendry County and the Hendry County Support Personnel Association (the CBA). Subsection 1012.40(2)(c), Florida Statutes (2005), provides, in relevant part: In the event a district school superintendent seeks termination of an employee, . . . [t]he appeals process shall be determined by the appropriate collective bargaining process . . . . Section 8.074 in the CBA prescribes the procedures for conducting a hearing if one is requested by a terminated employee. The procedures prescribed in the CBA are substantially the same as those in Subsections 1012.33(3)(f)4.a. and b. and 1012.33(6)(a)1. and 2., Florida Statutes (2005). In relevant part, the CBA provides: The Employee shall be entitled to a hearing at the Board's election in accordance with one of the following procedures: A direct hearing conducted by the Board within sixty (60) days of receipt of the Employee request. The hearing shall be conducted in accordance with the provisions of FS. 120.57(1)(a)1. A majority vote of the membership of the Board shall be required to sustain the Superintendent's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within sixty (60) days of receipt of the Employee's request in accordance with FS. Chapter 120. The recommendation of the hearing officer shall be made to the Board. A majority vote of the Board shall be required to sustain or change the hearing officer's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. This is the exclusive procedure for termination, except that the Employee shall have the right for Judicial Appeal under FS. 120.68. The Association shall be notified when any Association member is to be terminated. Petitioner's Exhibit 11. Petitioner elected to refer the request for hearing to DOAH in accordance with Section 8.074b. of the CBA. However, Petitioner did not refer the matter to DOAH until August 7, 2006, approximately 101 days after receiving the request for hearing. By waiting more than 60 days to refer the matter to DOAH, Petitioner prevented DOAH from conducting the hearing within the 60-day time limit prescribed in the CBA and incorporated by reference in Subsection 1012.40(2)(c), Florida Statutes (2005). Respondent did not raise his jurisdictional challenge until the administrative hearing was conducted on September 20, 2006. The sole issue that Respondent included in the Joint Pre-Hearing Stipulation filed with DOAH on September 19, 2006, is whether Petitioner had just cause to terminate the employment of Respondent. If the requirement to conduct the hearing within the 60-day time limit were jurisdictional, judicial authority discussed in the conclusions of law would make it unnecessary for Respondent to raise the issue before the hearing. If the requirement were procedural, judicial authority discussed in the conclusions of law would require Respondent to show that the failure to comply with the 60-day time limit prejudiced Respondent by impairing the fairness of the proceeding or the correctness of the agency action. For reasons stated in the conclusions of law, both the 15-day time limit for referring the matter to DOAH and the 60-day time limit for conducting the hearing are procedural rather than jurisdictional. The untimely referral and hearing did not prejudice Respondent. Petitioner had just cause to terminate the employment of Respondent. Respondent engaged in two unauthorized absences from work on March 15 and 16, 2006. The two absences exceeded 4.5 hours. Respondent worked at LaBelle High School (LaBelle) on March 15 and 16, 2006. Respondent worked during each day from 2:00 p.m. until 10:00 p.m. The workday included one unpaid meal break for 30 minutes and two 15-minute paid breaks. The breaks could be taken at any time during the workday and could be combined into a single one-hour break. Respondent was required to sign in and out on a form (sign-out sheet) when Respondent left campus during any period of his workday other than the unpaid 30-minute meal break. Respondent was absent from work on March 15, 2006, for a period in excess of three hours and was absent from work the next day for approximately one hour and fifty minutes. The absences were unauthorized because each exceeded one hour and because Respondent did not complete the sign out sheet when he left campus. Rather, Respondent made entries in the sign out sheet indicating he was present from 2:00 p.m. until 10:00 p.m. On March 15, 2006, Respondent left work for a period that exceeded three hours. Respondent borrowed a carpet cleaning machine from LaBelle in accordance with school policy. Respondent took the machine home, as he was authorized to do, but remained absent from work for a period that exceeded three hours. The second unauthorized absence occurred on March 16, 2006, when Respondent was absent from work from approximately 5:30 p.m. until about 7:20 p.m. The principal of LaBelle was attending a baseball game at school that evening and was unable to locate Respondent on campus during three separate searches. The searches included Respondent's work area and bathrooms. The work cart assigned to Respondent was not moved during the three searches. At approximately 7:45 p.m., the principal observed that Respondent's truck had been returned to its parking space. Respondent had a history of leaving campus during the workday. The principal had previously established the sign-out sheet protocol so that others would be able to locate Respondent during the workday. The head custodian also required each custodian to leave a note disclosing when a custodian leaves campus and the reasons for the absence. The head custodian would be able to read the note when he arrived at work the next morning and would be able to explain the circumstances of the absence if asked by a school administrator. Respondent did not comply with the required protocol on March 15 or 16, 2006.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as an educational support employee. DONE AND ENTERED this 11th day of December, 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 11th of December, 2006.
The Issue Respondent's alleged violation of Monroe County District School Board Policy Rule 2.5.1 on or about January 8, 1976, by possession of marijuana on school grounds.
Findings Of Fact Respondent is a 16 year old, 11th grade high school student attending Marathon High School, Marathon, Florida. On January 8, 1976, Respondent was found in possession of 32 grams of marijuana on the grounds of Marathon High School. (Stipulation of the Parties) On April 21, 1976, the Circuit Court of Monroe County, Florida, accepted Respondent's plea of guilty to a charge of possession of marijuana, withheld adjudication as a delinquent and placed him on probation for a period of six months under the supervision of a Youth Counselor, State of Florida Youth Services Division. Conditions of probation included a curfew, weekly meetings with the counselor and part-time employment while attending school. (Testimony of Seale) At the time of his apprehension, Respondent admitted possession of marijuana to authorities and cooperated with them by divulging its source. Respondent denies any prior arrests and, in the opinion of the Youth Counselor, he is not likely to commit an offense of this nature in the future. He has evidenced remorse and desires to continue attendance at the high school. The Youth Counselor feels that it would serve no useful purpose to prevent him from further attendance. (Testimony of Seale, Collins) Respondent is not a problem student nor is he considered to be incorrigible or a socially maladjusted child. An alternative to expulsion exists at Marathon High School in the form of a rehabilitative program for socially maladjusted children that is supervised by one instructor who exercises close supervision over the students in the program. A student who is expelled from high school may enter an evening adult education program whereby he can acquire necessary academic credits by attending evening classes. The principal of Marathon High School recommends that Respondent be expelled because of the seriousness of his offense as evidenced by the unusually large amount of marijuana. (Testimony of Gradick)
Recommendation That Respondent, Gordon Collins, be expelled from Marathon High School, Marathon, Florida, effective June 8, 1976, for violation of Monroe County District School Board Policy Rule 2.5.1, by possession of marijuana on the school grounds on or about January 8, 1976. DONE and ENTERED 14th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1976. COPIES FURNISHED: Glenn Archer, Jr. Assistant Superintendent Post Office Drawer 1430 Key West, Florida 33040 Peter Lenzi, Esquire Post Office Box 938 Marathon, Florida 33050
