Findings Of Fact At all times pertinent to the issues herein, Respondent, Joe Raymond Johnson was employed as a plant operator (janitor), at St. Petersburg High School. His employment was subject to labor conditions outlined in an agreement between the School Board of Pinellas County and the International Brotherhood of Firemen and Oilers, AFL-CIO, Local 1221. He has worked at the school since December, 1980. Respondent's immediate supervisor was Dennis N. Nelson, the night foreman who supervises the night crew of 10 plant operators (janitors). The night crew duty hours were from 2:30 - 11:00 p.m., Monday through Friday. At all times material hereto, Respondent was assigned to the night crew. The plant operators, of whom Respondent is one, are advised at periodic meetings of their duty hours, reporting times, break times, and lunch times, and other facets of their employment. In addition, this same information is posted on the bulletin board in the maintenance office. As a part of their employment orientation, the plant operators, including Respondent, were told how to make arrangements for excused absences and tardiness. They were advised to call in, in advance, and advise Mr. Jones, the Head Plant operator, that they would be late or absent and why. If Mr. Jones is not available, the worker is to leave a message for him with either a secretary in the administrative office or a student working in that office, who is to place the message in Mr. Jones' box for subsequent pick-up. Respondent was personally advised of this procedure by Mr. Nelson, his immediate supervisor. On July 5, 1987, Respondent signed a Stipulation of Agreement with the School Board whereby he was suspended without pay for three days because of a continuing history of unexcused tardiness up to that time. The Stipulation was signed by School Board officials on August 11 and August 26, 1987. On August 27, 1987, the Director of Personnel Services, Pinellas County Schools, advised Respondent by letter that the suspension had been approved and cautioning him that future infractions might lead to further disciplinary action, to include dismissal. Subsequent to July 13, 1987, even after signing the Stipulation relating to his prior tardiness, and accepting punishment therefor, Respondent continued to be tardy without excuse or prior notice as called for in the school procedure. Specifically, he was late as follows: July 13, 1987 - 3 minutes late August 13, 1987 - 8 minutes late August 17, 1987 - 2 minutes late August 26, 1987 - 5 minutes late September 24, 1987 - 42 minutes late September 30, 1987 - 1 minute late October 10, 1987 - 4 minutes October 16, 1987 - 32 minutes late November 4, 1987 - 1 minute late November 11, 1987 - 13 minutes late December 3, 1987 - 4 minutes late from lunch December 8, 1987 - 13 minutes late from lunch February 21, 1988 - 21 minutes late As a result of this continuing tardiness, on October 19, 1987, Respondent was called to a conference with the Principal, Mr. Grey, who advised him of the continuing problem. Respondent professed to be unaware of the problem and claimed discrimination by his supervisors. Nonetheless, Mr. Grey advised Respondent to be punctual in the future upon pain of further disciplinary action. When asked to sign a copy of the memorandum memorializing this conference, Respondent refused to do so. On December 16, 1987, Mr. Jones, the Head Plant operator, wrote to Mr. Johnson outlining a series of unexcused tardies and absences in early December, 1987 and indicating he was referring the matter to the Principal for action. Respondent, again, refused to acknowledge this communication. On January 21, 1988, Mr. Jones again wrote to Respondent noting a thirteen minute tardiness that day and again referring the matter to the Principal. As was the case with previous communications, Respondent refused to sign in acknowledgement. According to Mr. Nelson, Respondent failed to call in on any one of the above-mentioned tardiness in advance as was required. He admits that Respondent is generally a good worker but was the subject of some other, unidentified disciplinary problems during the period of his employment. These not being further identified or supported, they are hereby disregarded. Mr. Grey, the Principal, personally spoke with Respondent about his lateness on several occasions. Initially Respondent offered no explanation for his tardiness but with regard to the last two incidents, indicated he had physical problems. Respondent also, on one occasion, indicated to Mr. Grey that the plant operator, Mr. Jones, was prejudiced against him. Mr. Grey did not believe Respondent's representations to him that he had tried to call in to say he would be late. After the last referral from Mr. Jones, Mr. Grey decided that more stringent disciplinary action was appropriate and recommended to the Superintendent of Schools that Respondent be dismissed. This recommendation was based upon his own interviews with the Respondent and the reports of Respondent's supervisors. While admittedly other janitorial personnel have been tardy without a recommendation for dismissal, their records are not as aggravated as that of Respondent who continued his tardiness regardless of repeated counselings and warnings. Even though Respondent has not been late since February, 1988, Mr. Grey still feels he should be dismissed because regardless of the counselings, Respondent was repeatedly tardy until this present dismissal action was initiated. Mr. Johnson, who is fifty-one years old, has worked for the School Board continuously since December, 1980, and this job is his sole source of income. He admits that there was justification for the three day suspension imposed on him previously but contends that as to the latter incidents being used to support the current action, he called in in advance on most - at least those of significance. He does not consider one or two minutes beyond the starting time as being late, however. That much time could be expended waiting in line to clock in. As to these short periods, he asserts he was there on time but had to wait to sign in and by the time it was his turn, he was late by one or two minutes. What Respondent overlooks, however, is that the sign in clock was purposely set between two and three minutes slow for just that purpose. Consequently, if the clock showed Respondent to be two minutes late, he was, in reality, between four and five minutes late - well beyond the delay time. Respondent also contends without any evidence to support his contention, that the clock was ordinarily inaccurate and was adjusted purposely to entrap employees. Evidence introduced by Petitioner, however, indicates the clock was periodically checked and found to be accurate, except in times of power outages not pertinent here, until it was replaced when it broke down for a week. During that period, however, Respondent was not late. As stated above, Respondent claims that he did call in when he would be significantly late and leave a message with the student who answered. To support his claim, he asserts that neither Nelson nor Jones ever complained to him on those occasions. When he would see them after arrival, they would acknowledge his presence and say they were glad he had made it. On one of these occasions, September 30, 1987, on which date he was forty-two minutes late, he had car trouble and told Mr. Jones about it, when he arrived. During this same period from July, 1987 to January, 1988, he was having physical problems and was under a doctor's care; a fact which he made known to both Jones and Nelson. At one point, he brought in a doctor's certificate which he discussed with the Assistant Principal who told him to leave it in the Principal's box. The Principal denied receiving it, however. These assertions do not, however, establish that Respondent followed the school rules and called in in advance when he was going to be late. Respondent claims that though the school administration is claiming his tardiness as the basis for this dismissal action, in reality it is because of an altercation he had with Mr. Jones over a period of sick leave. In the incident in reference, Respondent had been to the doctor and upon his return to school, signed an application for sick leave furnished to him by Mr. Jones who had indicated it would be approved. When he saw it later, he noted that sick leave had been disapproved. When he spoke with Mr. Jones about this, Jones allegedly told him he didn't have any sick leave accrued. Respondent called the district payroll office and reportedly was told he did have sick leave available, but when Respondent reported this to Jones, Jones supposedly said it didn't matter, he wasn't going to get it. When Respondent complained to the Assistant Principal, the matter was referred back to Jones for resolution. Respondent was counseled about this incident in writing by the Principal and believes it is the real basis for the disciplinary action. Both Grey and Jones deny this, however, and in light of the Respondent's repeated lateness, it is found that the basis for this action is the lateness and not the other matter. Mr. Grey admits that Respondent's tardiness was documented with a view toward disciplinary action but not because of this incident. The documentation was begun before the incident in question and relates solely to the continuing tardiness. Respondent has not been late since January 21, 1988, because he fears the separation action. He made up his mind to be on time and he has been on time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Joe Raymond Johnson be suspended without pay from employment with the School Board of Pinellas County for thirty days. RECOMMENDED this 7th day of June, 1988, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 7th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1370 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. By the Petitioner NONE By the Respondent 1 - 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 8 - 10. Accepted and incorporated herein. 11 - 14. Accepted and incorporated herein. Rejected as not entirely supported by of record. Accepted and incorporated herein. 17 - 18. Accepted and incorporated herein. 19. Accepted. 20 - 21. Accepted and incorporated herein. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Clearwater, Florida 34624 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue Suite C Clearwater, Florida 34616 Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Scott N. Rose, Ed.D. Superintendent School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688
The Issue Whether the Respondent, Fitzroy Salesman, should be terminated from his employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is charged with the duty to operate, control, and supervise all public schools within the Miami- Dade County School District. As such, the employment of school personnel is encompassed among its myriad of duties. Further, the School Board is charged with the discipline of its employees. The Petitioner employed the Respondent on or about August 28, 1988. The Respondent was employed pursuant to a professional service contract. The Respondent was continuously employed as a full-time teacher assigned to Miami Lakes Educational Center (the Center). Throughout most of his employment, the Respondent's primary job assignment was related to his area of expertise: welding. Prior to the instant case, the Respondent has never been the subject of a disciplinary proceeding. Due to a decrease in enrollment for welding classes (such that a full-time welding position was not required), the Respondent was assigned responsibilities as a substitute teacher for other programs at the Center. Specific to the allegations of this case, the Respondent, on September 24, 25, 26, 27, 28, 29, and October 1, 2, 3, and 4, 2001, was assigned to serve as a substitute teacher in the Television Production Program at the Center. While being supervised by the Respondent, at least ten students participated in the production of a program depicting inappropriate activities. For example, the students were recorded using profanity, mimicking sex acts, and discussing "getting high." The students talked openly and without interruption or direction from the Respondent. During part of the tape, the Respondent stood within the glassed production area next to the studio set. Occupants of that room are able to see and hear the activities on the set. The Respondent knew or should have known what the students were doing as he was responsible for the class. Further, at one point, the Respondent appeared on camera and stated, "ain't that some shit." The Respondent was given an inadequate lesson plan for the days he substituted in the Television Production Program but did not seek assistance from administrators or the department head. Such assistance is readily available to any substitute teacher who advises he is in need of additional materials or plans. Further, the Respondent did not report the activities of the students. Specifically, he did not refer students to the office based upon their inappropriate activities. The Respondent does not deny that the students engaged in the activities described. He maintains that he was inadequately trained or prepared to lead the class. On or about October 19, 2001, an administrator at the Center discovered the tapes depicting inappropriate conduct. At that time the Respondent was reassigned to another location. Based upon the Respondent's failure to properly monitor the class, his effectiveness as a teacher has been impaired. On January 13, 2002, a conference-for-the record (CFR) was conducted with the Respondent. At the CFR, the Respondent was advised of concerns regarding the described conduct during the time he served as substitute teacher for the Television Production Program. On January 15, 2002, ten students from the television production class were suspended from school. The suspensions stemmed from their activities depicted in the videos described above. On March 19, 2002, the Respondent attended a meeting with the School Board's Office of Professional Standards. At that time the Respondent was advised that the School District would seek dismissal proceedings. On April 17, 2002, the School Board took action to initiate dismissal proceedings against the Respondent based upon the activities that had occurred in the Television Production Program during the Respondent's time as substitute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board affirm the suspension of the Respondent and dismiss him from employment with the School District. DONE AND ENTERED this 31st day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 31st day of March, 2003. COPIES FURNISHED: Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
Findings Of Fact Respondent is Clarence Davis, holder of teaching certificate number 137897 issued by the State of Florida. Respondent is currently employed by Petitioner as a teacher pursuant to a continuing contract which has been in effect since April 21, 1971. Respondent is presently a teacher at Azalea Middle School. In September of 1988 or early October 1988, a 12 year old female student, J.B., in Respondent's gym class complained to Respondent that another student was hitting her. Respondent refused to take any action. From his view of the class seating arrangement on the gym bleachers, Respondent felt there was no way that the student accused could have hit the complainant. Respondent told J.B. to stop crying like a baby. Respondent had been previously requested to use extra sensitivity in dealing with J.B. because she was a recent victim of a violent sex crime. J.B., through her parents, subsequently requested and received a transfer from Respondent's class by the school principal. At the beginning of the 1988-89 school term, D.W. was a student in Respondent's gym class. D.W. testified that Respondent yelled at him in a rude manner and propelled him into a fence on an out door court yard who he hit a volley ball incorrectly. D.W.'s testimony in this regard is not credited because his version of events was not corroborated by other testimony and is in conflict with testimony of Respondent that the incident did not occur and that D.W.'s class did not participate in any out door volley ball activity. D.W. admitted he "mouthed off" to Respondent on several occasions. When Respondent would give D.W. a directive, D.W.'s response was "no". Such an admission is inconsistent with D.W.'s testimony that he was afraid of Respondent; therefore that portion of D.W.'s testimony also is not credited. The principal of the school transferred D.W. from Respondent's class at the request of D.W.'s parents and because D.W. did not have respect for Respondent. Due to his absence on the day that volley ball teams were chosen, V.C. was not assigned to a team when he returned to Respondent's gym class on or about October 19, 1988. V.C. was not supposed to be seated in the gym bleachers with other students who were excused from "dressing out." Respondent yelled at V.C. and told him to get out of the class. V.C. complied and went to the school administrator's office. V.C. was not given a pass or a referral by Respondent in accordance with school policy requirements. V.C. was frightened by Respondent's action. A subsequent parental request to transfer V.C. from Respondent's class was granted by the school principal. On October 20, 1988, Respondent went to the classroom of a fellow teacher, Ms. Moore, and gestured through the glass portion of the door for her to come out and speak with him. She started her class to work on an assignment and stepped out the door to speak with Respondent. The conversation lasted four to five minutes and dealt primarily with Respondent's concern that he was being harassed by school administrative officials. Petitioner's policy no. 6Gx52-2.08 directs that class interruptions must be made at such times as will not interrupt classroom instruction. Just prior to the conversation with Ms. Moore, Respondent had spoken with the school principal in the principal's office. At the meeting with the principal, the principal deliberately left his door ajar for Respondent, not wanting to have a closed door meeting with Respondent. Respondent came into the principal's office and shut the door. Respondent was told by the principal that D.W. would be transferred to another class. Respondent argued with the principal, shook his finger in the principal's face and said "I won't be treated like a child." When the principal reached for the door handle, Respondent held the door shut and continued speaking in a voice loud enough for administrative personnel seated at desks approximately 15 feet outside the door to become concerned. The principal did not ask Respondent to open the door or to remove his hand from the door. Respondent then left the office, walked a short distance toward the exit to the administrative office section, and came back to the door of the principal's office where he again shouted that he wasn't being treated fairly, or words of similar import. Respondent then left the area. Another 13 year old male student, P.L., was transferred from Respondent's class at the request of his mother after the first grading period of the 1988-89 school year. P.L. received an "F" from Respondent for the first grading period because P.L. refused to dress out for physical education class. P.L. also witnessed Respondent yell and scream at other students. P.L. did not recall specific incidents and his testimony cannot be credited as corroborative of any particular incident alleged against Respondent. On or about October 28, 1988, Respondent grabbed D.B., a 14 year old seventh grade student, who was in the process of fighting with another student. As established by Respondent's testimony, D.B. is a "street smart" kid adept at fighting who poses a danger to other students in such a situation. As a result, Respondent held D.B.'s arm and carried him back to his office from the floor of the gym. D.B. is still in Respondent's class. Testimony of D.B. that Respondent intentionally twisted D.B.'s arm is not credited due to the demeanor of the witness while testifying; the lack of corroborative testimony of Respondent's arm twisting conduct by other witnesses; the testimony of another student, L.H., that he observed the incident and did not see D.B.'s arm twisted; and Respondent's denial of such action. On or about September 5, 1986, the principal of the school where Respondent was then employed, counselled Respondent concerning his aggressive touching of students. Respondent was reprimanded in a memorandum from the principal of Azalea Middle School dated April 18, 1989, for unprofessional conduct. The Superintendent of Schools for Pinellas County reprimanded Respondent by letter dated June 1, 1988, for failure to meet professional standards relating to personal conduct. Respondent was warned that failure to follow administrative directives and treat colleagues and staff in an appropriate and acceptable manner in the future would result in a recommendation to Petitioner that Respondent be disciplined through suspension or termination of employment. The Director of Personnel Services for Petitioner was presented at final hearing as an expert in education practices and administration. Based upon his review of Respondent's previous disciplinary record, he opined that disciplinary action was appropriate. While he had met with Respondent to advise him of the disciplinary matters pending against Respondent, the director admitted that he did not discuss with Respondent the alleged incidents involving students J.B., V.C., D.W., and P.L.; therefore he did not have the benefit of information from Respondent in formulating an opinion regarding the appropriateness of the discipline proposed in this case. The school principal never consulted Respondent with regard to learning Respondent's version of the incidents involving students J.B. or D.W. The principal heard Respondent's version during the October 20, 1988, meeting with Respondent in the principal's office. Notably, the principal did meet with D.W., his parents and another instructor in a different class to resolve behavioral problems in that class. As stipulated by the parties, Petitioner bases Respondent's suspension for three days without pay upon Respondent's alleged actions with regard to students J.B., D.W., and V.C.; his confrontation with the school principal on October 20, 1988; his discussion of the matter with fellow teacher, Ms. Moore, on October 20, 1988; and his alleged failure to comply with previous directives to correct deficiencies in his professional behavior as set forth in previous reprimands. Petitioner's second suspension of Respondent without pay for a period of five days is based upon allegations that Respondent engaged in actions after November 8, 1988, and prior to December 14, 1988, consisting of pushing and shoving students in a punitive manner; that such alleged misconduct by Respondent occurred while the previous suspension action of November 8, 1988, was still pending; and that Respondent had been previously warned in reprimands issued to him in 1986 and 1988 to refrain from such conduct. The basis of the allegation regarding Respondent's pushing and shoving of students, relied upon by Petitioner to support the second suspension, consists of the incident involving student D.B. A second incident involving student M.S., a female in the sixth grade physical education class of Respondent, occurred after the December 14, 1988 date of the charging instrument for the second suspension and is not credited with regard to present charges.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in Division of Administrative Hearings Case No. 88-5720 and Division of Administrative Hearings Case No. 89- 0344 dismissing the proposed suspensions of Respondent from his employment. DONE AND ENTERED this 21st day of April, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-5720 AND 89-0344 Rulings on Petitioner's Proposed Findings of Fact: Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact, paragraph 4. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact paragraph 5. Rejected as contrary to the weight of the evidence. However, as to material findings see paragraphs 5, 6, and 7. Accepted. Finding of Fact, paragraph 5. Accepted in material part in Finding of Fact, paragraph 6. Accepted in material part in Finding of Fact, paragraph 6. Paragraphs 15, 16, 17, and 18 are accepted to the extent facts are addressed in Finding of Fact paragraph 6. The remaining portions are rejected as unnecessary. Paragraph 19 is accepted. Finding of Fact paragraph 6. Paragraph 20 is accepted in material part and addressed in Finding of Fact paragraph 8. Paragraph 21 accepted but unnecessary. By her admission, Respondent used $2000 borrowed from Washington toward her purchase of the car. Paragraph 22 is accepted. Finding of Fact paragraph 12. Rulings on Respondent's Proposed Findings of Fact: Accepted. Finding of Fact paragraph 2. Accepted in part Finding of Fact paragraph 3. Rejected as to suggestion, Respondent did not know. See subsequent findings of fact paragraph 5. Accepted. Finding of Fact paragraph 5. Accepted in material part in Finding of Fact paragraph Rejected as to conclusion Respondent was not aware of the conversations between Butler and Washington which took place in Respondent's presence. Accepted only as addressed in Finding of Fact paragraph 9 otherwise rejected as contrary to the weight of the evidence. Accepted but unnecessary since true origin of funds was known to Respondent. Accepted as it states Respondent accepted loan-see findings of fact paragraphs 6 and 7. Rejected otherwise as contrary to weight of credible evidence. Accepted but is unnecessary. See Findings of Fact paragraph 10 as to material findings. Accepted in material part in Findings of Fact paragraphs 11, 12; otherwise rejected as contrary to weight of credible evidence. Accepted in material part in Finding of Fact paragraph 13. Rejected as contrary to weight of credible evidence. Rejected as argumentative. Rejected as argumentative. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 1960 East Druid Road Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue Southwest Largo, Florida 34640
The Issue Whether Respondent's employment as a teacher by the Indian River County School Board should be terminated for the reasons specified in the Charging Letter dated September 20, 2013.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Indian River County, Florida. At all times pertinent to this case, Respondent was employed as a physical education teacher at the Alternative Education Center, a public school in Indian River County, Florida. On October 16, 2012, Respondent was arrested and charged with purchase of marijuana and possession of more than 20 grams of cannabis, both of which are third degree felonies. On March 6, 2013, Respondent entered a plea of no contest to the above-noted criminal charges and entered into the Drug Court Intervention Program. Pending the outcome of Respondent's criminal charges, on October 18, 2012, Respondent was reassigned to work at the Support Services Complex ("Complex"). Respondent was directed to report to Rick Chuma, Director of Purchasing for the District, on October 19, 2012, at 8:00 a.m. Mr. Chuma testified that individuals, such as Respondent, who are reassigned to the Complex are typically assigned menial tasks such as shredding paper or other minor projects. Specific to Respondent, Mr. Chuma recalled Respondent's duties as shredding paper and, on one occasion, working for Patrick McCarty, the Director of Food Services, cleaning the kitchen. Mr. Chuma conceded that there would be occasions where Respondent did not have any tasks to perform at the Complex; however, he noted that under such circumstances Respondent was not permitted to leave during his assigned hours (excepting breaks or lunch). Denise Roberts, the Executive Director of Human Resources, testified that Respondent was assigned to work at the Complex from approximately 7:30 a.m. to 11:30 a.m. or 12:00 p.m. At the Complex, individuals such as Respondent kept an accounting of their time by completing a "Personnel Time Sheet" on a daily basis. Margaret Irene Herman, Mr. Chuma's assistant, ensures personnel are signed in and out. The timesheets cover a two-week period and are maintained in a basket on her desk. Respondent had an individual time sheet and would document for each day when he arrived and left the Complex. Although personnel are expected to complete the form in real time, that is, sign in upon arrival, and sign out when departing, some personnel would sign in and out upon arrival at work. This was not a disciplinable offense if the employee worked during the documented time period. In February 2013, after approximately four months at the Complex, concerns arose regarding Respondent's whereabouts at the Complex during his assigned hours. On one occasion, Ms. Roberts received a call from Ms. Herman inquiring as to whether Respondent had requested and been authorized leave, because he could not be located. Mr. Chuma testified that, on one occasion, he was asked to locate Respondent at the Complex, and he could not be located. Patrick McCarty also testified that, on one occasion, he was asked to locate Respondent, but was unsuccessful.1/ On the above-noted occasions, Respondent had signed in and out on his timesheet as working a full day. Although Respondent continued to have access to and utilize his work email, and Petitioner had his phone number, Petitioner never attempted to locate Respondent via those channels. Instead, Petitioner contacted Kenneth Thompson, the plant manager of the Complex, to review video surveillance of the Complex. Ms. Roberts and Mr. McCarty recalled viewing one video surveillance clip that purportedly showed Respondent arriving at the Complex and then leaving the Complex several minutes later. Ms. Herman testified that she viewed approximately three separate video clips similarly showing Respondent arriving at work and then leaving several minutes later.2/ Respondent conceded that there were days when he arrived at the Complex, signed in and out as working his scheduled hours, and then left the Complex several minutes later for the entire day. On those occasions, Respondent did not notify anyone of his absence. There is no evidence that Respondent requested leave on those occasions. The evidence reveals that Respondent received his full pay for the days that he was willfully absent. At some point in time, Respondent was informed that he was required to sign in and out in the presence of Ms. Herman.3/ Thereafter, Respondent complied and there is no evidence of further incidents regarding Respondent being physically present at the Complex. On July 1, 2013, William Fritz was assigned as the Assistant Superintendent for Human Resources and Risk Management. Shortly thereafter, Mr. Fritz conducted an investigation regarding the above-noted conduct. At the conclusion of his investigation, Mr. Fritz recommended Respondent's termination, and the Superintendent ultimately supported that recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a final order finding William Howle guilty of misconduct in office, and terminating his employment. DONE AND ENTERED this 4th day of August, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 4th day of August, 2014.
Findings Of Fact Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract for approximately 15 years. He has a bachelor's degree and a master's degree in the area of education. During the 1988-89 school year Respondent was assigned as a teacher to Highland Oaks Middle School. Danielle Fisher was a student in Respondent's fifth period math class. On May 8, 1989, during math class, Dantelle Fisher became involved in a loud argument with one of her friends over which of the two girls was the owner of a "fucking lipstick." Fisher, who was also eating candy, kept proclaiming to the other girl, "Fuck you. It's mine." Fisher's argument disrupted Respondent's math class and the class next door. Respondent directed Fisher to be quiet, and Fisher refused. Respondent directed her again to be quiet, and again she refused. Respondent directed her to leave the room, and she refused. Respondent again directed her to leave the room, and she yelled at him "Fuck you. Screw you, asshole." Fisher continued yelling profanities, and Respondent went over to where she was sitting. He took her left arm to guide her out of her seat, and she resisted, refusing to move. He then exerted a small amount of force, pulling her up from her seat. Respondent gave her her books and her purse and led her by her left arm to the open classroom door, instructing her to report to the office. Respondent then closed the classroom boor. Fisher then opened the classroom door and screamed at Respondent, "Fuck you. I'm going to get you fired." She then yelled to her classmates, "Everybody, remember this." She then showed them her left arm which at that moment showed finger prints, i.e., the impression of where Respondent's fingers had been on her arm. She then left. By the time that Fisher reached the principal's office, she had red welts and scratches on her right arm. Respondent had not touched Fisher on her right arm. Fisher was not humiliated or embarrassed by the incident. She had been removed from Respondent's classroom on previous occasions for disruptive conduct and had been removed from her social studies class on a previous occasion for banging on the wall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing the Specific Notice of Charges filed against Respondent and reinstating Respondent to his position as a classroom teacher with full back pay from the date of his suspension to the date of hid reinstatement. DONE and ENTERED this 30th day of April, 1990, at Tallahassee, Florida. LINDA M. RIGOT 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 30th day of April, 1990. APPENDIX TO RECOMMENDED ORDER D0AH CASE NO. 89-6345 Petitioner's proposed findings of fact numbered 1 and 6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact lumbered 2 and 3 have been rejected as being irrelevant to the issues under consideration in this proceeding. Petitioner's proposed finding of fact numbered 4 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 5 and 7-12 have been rejected as not being supported by the weight of the credible evidence in this proceeding. Petitioner's proposed findings of fact numbered 13 and 14 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 5 and 6 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact: numbered 1-4 and both numbers 7 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. COPIES FURNISHED: William DuFresne, Esquire DuFresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Dr. Paul W. Bell, Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether just cause exists for Petitioner, Polk County School Board (School Board), to terminate Respondent's employment as a classroom teacher.
Findings Of Fact The School Board is charged with the duty to operate, control, and supervise public schools in Polk County. This includes the power to discipline classroom teachers. See §§ 1012.22(1)(f) and 1012.33, Fla. Stat. (2018). The record does not disclose whether Respondent holds a professional service contract or has an annual contract with the School Board. In any event, he has been employed with the School Board as a classroom teacher since September 2016. Before moving to Florida in 2016, Respondent taught motion picture television arts in Ohio for four and one-half years. Before that, he worked in the motion picture industry for 27 years. From September 2016 until he was suspended in January 2018, Respondent taught Television (TV) Production at Haines City High School and supervised the school's TV news program. In the program, students film events on campus before and after school, learn how to edit the film, and then prepare videos for school use. Mr. Lane is the school principal. Based on an allegation that he was observed sleeping in class on November 29, 2017, coupled with a three-day suspension, without pay, that he served a month earlier, the School Board seeks to terminate Respondent's employment. Specifically, the termination letter alleges that on November 29, 2017, Respondent "was found sleeping at [his] classroom desk," "students [were] unsupervised and scattered about [the] classroom," and this conduct constitutes "serious misconduct." Sch. Bd. Ex. 4. To terminate Respondent, the School Board relies upon the fourth step in the four-step progressive discipline process found in the Teacher Collective Bargaining Agreement (CBA), which governs the employment of instructional personnel. Article 4-4.1 provides that, "except in cases where the course of conduct or the severity of the offense justifies otherwise," a teacher may be terminated only after progressive discipline has been administered in Steps I, II, and III. Sch. Bd. Ex. 8. On October 24, 2017, Respondent received a three-day suspension without pay for making inappropriate comments during a discussion with students in his class. Due to the serious nature of the incident, the School Board accepted the principal's recommendation that it bypass the first two steps of progressive discipline and invoke discipline under Step III. Respondent did not contest or grieve that action. Therefore, Respondent has not been given progressive discipline under Step I (a verbal warning in a conference with the teacher) or Step II (a dated written reprimand following a conference). In the fall of school year 2017-2018, Respondent taught TV Production-Editing during fourth period. The TV Production area encompassed a large suite of rooms, including a main classroom, a TV news room, a control room, and two hallways with lockers for equipment. Typically, there were between 25 and 30 students in the class. Respondent wears contact lenses, but because of chronically dry eyes, he must use artificial tears four to eight times per day in order to avoid swelling of the eyelids. To properly hydrate his eyes, after using the artificial tears, Respondent tilts his head back, closes his eyes, and rolls his eyes for a few minutes to allow the eyes to absorb the solution. Midway through his fourth-period class on November 29, 2017, Ms. Young, the assistant principal, entered Respondent's classroom to do an unannounced walk-through. She observed the lights off and Respondent sitting at his desk with his eyes closed and "leaned back" in his chair with his mouth open. Ms. Young assumed he was asleep so she cleared her throat, then waved her hand, and finally knocked on his desk twice, but he did not open his eyes. She then knocked louder on the desk and called his name. This appeared to startle Respondent and he sat up and looked around the class. After she informed him that she was performing a walk-through in his class, Respondent replied "okay," and said he was aware she was there. Ms. Young was in Mr. Smith's classroom area approximately five minutes. After getting his attention, she walked through the entire suite of rooms and observed "some" students on their phones, "some" on the computer, and "some" walking in the back of the room. Even though Mr. Smith testified at hearing that his students were "absolutely malicious" and "they'll do anything," Ms. Young did not report seeing any unusual or unsafe conditions that might result in placing any student's safety in jeopardy. Mr. Smith denies that he was asleep. He testified that just before the assistant principal did her walk-through, he had put drops in his eyes, cocked his head back, closed his eyes, and was in the process of rolling his eyes to rehydrate them. A few minutes earlier, he had given permission for a student to use the restroom. When Ms. Young entered the classroom, he knew someone had entered the room but assumed it was the student returning from the restroom. When he opened his eyes, he greeted Ms. Young, who replied that she was "walking through [his] classroom." According to Ms. Young, it was "very evident" that he was asleep, "100 percent," and it was not possible that he just had his eyes closed. Ms. Young's testimony concerning her observations is the most persuasive and has been credited. The incident was reported to Mr. Lane the same day. After the incident was reported to Mr. Lane, he recommended that Respondent be terminated for serious misconduct. Sch. Bd. Ex. 4. Mr. Lane explained that this action was justified because of concerns over the "safety of the children" in Respondent's class, given the large suite of rooms under his supervision. He also testified that the incident brought into question Respondent's effectiveness as a teacher. The School Board's attempted reliance at the hearing on a few other times when Respondent allegedly was sleeping in class has been disregarded for two reasons: they are based mainly on hearsay testimony, which does not supplement or corroborate other competent evidence; and, more importantly, they are not included as charges in the termination letter or parties' Pre-hearing Stipulation. Pilla v. Sch. Bd. of Miami-Dade Cnty., 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995) (the teacher must have fair notice and an opportunity to be heard on each of the charges brought against him). On December 13, 2017, the School Board's human resource services department informed Respondent by letter that he was suspended, with pay, pursuant to Article 4-4.1 of the CBA pending the School Board's consideration of a recommendation that he be terminated, effective January 24, 2018. Sch. Bd. Ex. 5. According to the termination letter, the School Board determined that Respondent's actions "constitute serious misconduct" for which "just cause" for termination exists, and "[t]ermination constitutes Step IV of Progressive Discipline as outlined in Article 4-4.1 of the [CBA]." Sch. Bd. Ex. 5.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Polk County School Board enter a final order issuing a verbal warning (Step I) or a dated written reprimand (Step II) to Respondent for being observed sleeping in class on November 29, 2017. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 6th day of March, 2019.
The Issue The issue for determination is whether the School Board has proven the allegations set forth in the Notices of Specific Charges dated April 3, 2001, and, if so, what penalty should be imposed.
Findings Of Fact The incident giving rise to this case occurred on November 14, 2000. At that time, Respondents Gregory Adams (Adams) and Brett T. Scanlon (Scanlon) were employed as teachers by the School Board and assigned to William Chapman Elementary School (Chapman). Adams has been employed by the School Board since August 1996, and has taught at Chapman since 1998. Scanlon has been employed by the School Board at Chapman since October 1999. Adams and Scanlon shared a second grade classroom during Scanlon's first year at Chapman, and Adams became a mentor to him. At the start of the 2000/2001 school year, Scanlon was assigned to teach third grade, while Adams continued to teach second grade. The complaining witness against Adams and Scanlon, Miguel Suarez (Miguel), was nine years old at the time of the incident. Like many of the teachers and administrators at Chapman, Miguel is of Hispanic origin. English is his second language. Miguel's academic functioning is quite low. In terms of expressing himself, he functions at a four or five-year-old level. His memory functions no better than that of a five- year-old. He was not sure, for example, what school he had attended last year. Miguel is unable to reliably sequence events. He is eager to please and, at least in the presence of the undersigned, attempted to ascertain what adult authority figures wanted and to give it to them. Miguel's learning disabilities are not the first thing one notices about Miguel. Indeed, Miguel began the 2000/2001 school year as a second grade student in a regular education class. It was not until mid-October that the professional educators who worked with him daily mustered sufficient evidence to identify his learning disabilities and appropriately place him into a learning disabilities (LD) program for part of the day. Miguel's family is not adept at communicating effectively with school teachers and administrators. Miguel's mother, Silvia Gomez (Gomez), does not strive for a united front between home and school. In addition to his mother, Miguel resides with her live-in boyfriend. Both are irregularly employed. Sometime prior to the incident on November 14, 2000, Miguel's father had committed suicide. Miguel was aware that his father had died, but had never received counseling directed to this loss. Adams is an African-American from an impoverished, hardscrabble background. Out of seven siblings, he and one other have achieved a college education. Adams feels an obligation to encourage children of similar background. Scanlon is a white male, who previously served in the armed forces. His professional bearing is reminiscent of what official Miami used to look like. He too is committed to teaching. At the time of the final hearing, Chapman’s racial and ethnic composition, as well as the mix of English and Spanish spoken as first languages, typifies the rich diversity of Miami-Dade County in the 21st century. But it also provided fertile ground for misunderstanding, miscommunication, and mixed signals. Compounding the potential for trouble at Chapman, at the time of the incident, some teachers employed a practice called ”time-out” to deal with students with whom they were having a problem at a moment when they were not able or willing to deal with the problem themselves. Time-out, though not part of the officially approved discipline program at Chapman, was widely known in the school. The practice was discontinued after and as a direct result of this incident. At the time of the incident, Adams and Scanlon had a good faith belief that it was a form of professional courtesy within the school, and not an act which would place one’s career in jeopardy. Time-out was initiated by the teacher having difficulty with a particular student. She would take or send the disruptive student to a fellow teacher who would use his own discretion in returning the child to a compliant mode. Sometimes, the mere act of sending the child to another teacher was sufficient to inspire contrition. Sometimes it wasn't. Sometimes a child would join the time-out teacher's classroom. Sometimes the child would be taken to a private area and given a stern lecture. Miguel, due to his learning disabilities and in particular his extremely poor communication skills, was not a good candidate to respond positively to a stern lecture. Rather, it was frightening to him, particularly when delivered by two adult male teachers previously unknown to him. Adams, on the other hand, had good results in the past with students referred to him for time-out. Adams was experienced in administering time-outs for fellow teachers, and the record reflects no complaints about either Respondent's techniques with reference to their handling of time-outs. Adams and Scanlon had no knowledge of Miguel’s limitations and special circumstances on November 14, 2000, when one of Miguel’s teachers, Leah Gilliard (Gilliard), was angry at Miguel for “helping” to collect books without permission. Gilliard delivered Miguel to Adams, who in turn sought the assistance of his colleague Scanlon. Miguel’s time-out ended in a student bathroom, where Respondents used language and metaphors which may have been effective with a third grader of average communication skills, but which served only to frighten Miguel. In particular, Scanlon asked Miguel why he wanted to throw his life away and if he wanted to flush everything down the toilet. Asked by Scanlon questions to the effect of why he was throwing his education away like he was flushing it down the toilet, Miguel started laughing. It may well be that Miguel laughed out of fear, or confusion, but Scanlon and Adams perceived disrespect. Rather than switch metaphors, Adams took Miguel to a child-size toilet stall and said “This is your life going down the drain if you don't get serious about education.” As he said this, he flushed the toilet with his foot. Miguel was sufficiently chastened to obey Adams' direction to apologize to Scanlon for having been (in Respondents' perception) rude. Miguel did not cry or exhibit other signs of distress to Respondents as they escorted him from the bathroom. Scanlon returned to his own classroom and Adams returned Miguel to Gilliard. At Adams' direction, Miguel apologized to Gilliard and the time-out ended. Miguel said nothing of the incident until later that night. At bedtime, Miguel told Gomez that “a brown man and a white man” had “put his head in the toilet.” Gomez did not take the claim seriously, and Miguel was not agitated or upset. Gomez told Miguel to go to sleep and he did so. The next morning, however, Miguel said he did not want to go to school, so his mother went to school with him. In the presence of Miguel, she first met with Gilliard, and next with teacher Millie Johnson (Johnson). Johnson, on hearing the toilet story, said to Miguel in a loud and “forceful” voice, “They didn't really do that, did they?” Miguel answered, “They almost.” Adams was summoned, and admitted to having had Miguel in his custody for time-out, but not to any type of physical abuse. By this time, Miguel had told at least three adults, his mother, Gilliard, and Johnson, that he, Adams, Scanlon, and a flushing toilet were all in proximity to one another while Miguel was being sternly double-teamed on the subject of his behavior—-a fact which Adams and Scanlon do not dispute. Dissatisfied with Adams’ explanation, an angry Gomez left an upset Miguel behind at school to be cared for by teachers, administrators, and counselors who were busy with their regular work. As the day progressed, Miguel was required to tell his story to no fewer than four more teachers and administrators. Miguel began to add substantially and horrifically to the story he had told his mother the night before. Meanwhile, Adams and Scanlon were immediately transferred out of Chapman and assigned to a district office. At different times and places, Miguel has claimed that Adams kicked walls and slammed doors; that Scanlon threatened to cut off his tongue and his fingers; that Adams threatened to cut out his tongue and teeth; and that Adams pushed his head just inside the rim of the toilet seat, near the water, and asked, “Do you want to drown?” In addition, Miguel has claimed that both teachers took him to a stairwell where Adams told Miguel that he would drop him down the stairs, pull out his teeth, and do "something" to him if he told his mother. Miguel's story has grown to include allegations that one or both teachers made him stand on one foot and pretended to push him down the stairs. It is also alleged that Adams made him run up and down the stairs chasing an unidentified boy that they had picked up on their way to the stairs. For reasons not reflected in the record, a couple of days after the incident, Miguel's mother's live-in companion came to the school office screaming, “How could teachers do this!” For several days following his mother's visit to Chapman, Miguel was agitated and did not want to go to his homeroom. The record is unclear as to whether his agitation was the product of the November 14th incident, or adult reaction to it as horrific details were added, or being simply overwhelmed by the attention. Soon after the incident, Miguel was administratively promoted to a third grade homeroom. He continues to be enrolled at Chapman. Gomez retained an attorney to pursue a civil action on Miguel's behalf. At the time of the final hearing in this case, the incident which occurred on November 14 is in active litigation and requires a significant amount of Miguel's time. He is fearful of failing this year because he is missing a lot of school due to the legal proceedings. Gomez and her lawyer sought and received publicity for their claims against Petitioner. In seeking media coverage they knowingly and voluntarily made Miguel's identity a matter of public notoriety for purposes of influencing the outcome of the litigation. Because Petitioner's case rests entirely upon Miguel's claims that he was subjected to criminal conduct far beyond the time-out described by Adams and Scanlon, the undersigned paid careful attention to his demeanor under oath. Miguel attended a significant portion of the final hearing accompanied by his mother and his lawyer, and listened again to teachers' accounts of what he had allegedly told them about the incident. Miguel's time on the witness stand was prolonged because he had significant difficulty understanding questions and even more difficulty in recalling and recounting facts crucial to the allegations against Respondents. On several occasions his attempted answers were simply unintelligible. Miguel's family, by virtue of its lawsuit against Petitioner, had an obvious financial stake in telling as horrifying a tale as possible. Similarly, Adams and Scanlon, whose careers and livelihoods are at stake, are motivated to downplay the extent of their efforts to intimidate Miguel into improving his behavior. The undersigned, therefore, carefully observed Respondents' demeanor as they testified. The testimony of the Respondents and of Miguel, when evaluated in the context of the entire record, reveals that Petitioner has failed to establish that Miguel was abused in the manner described in the Notice of Specific Charges. Rather, the version of the incident recounted by Adams and Scanlon is far closer to the truth. The Petitioner's allegations are utterly inconsistent with any evidence presented about the character and professional career of Adams and Scanlon. In addition, they are so horrific that one would expect that a child who had suffered such treatment would be far more traumatized than the cheerful, if intimidated, little boy who testified at the final hearing. The undersigned attaches particular significance to Gomez' claim at the final hearing that on the night of the incident, Miguel reported to her most, if not all, of the abuse allegations against Adams and Scanlon. Yet, all of Petitioner's witnesses agree that when Gomez confronted Adams and school authorities the following day, she said nothing of the alleged threats of violence and death made against her son. Gomez claims she did not mention the abuse allegations the next day because she deemed them unimportant when measured against the fact that--taking the evidence in the light most favorable to the Petitioner--Miguel's head had been placed near, but not in, the toilet water. The undersigned rejects Gomez' testimony that Miguel in fact claimed, on the night of November 14th, that he had been subjected to violence, physical abuse, and death threats. Not only did Gomez fail to mention these most serious charges to any of the teachers or administrators, she never mentioned them to school police. It is also significant that the day after the incident, Miguel did not suggest to anyone that any other children were present on the stairs. It was not until his deposition was taken in May 2001, that Miguel stated that another little boy was on the stairs and that the “Brown man” pulled the little boy from class and made both of them run up and down stairs. There is no corroborating evidence that this child exists, or this incident took place on November 14th nor at any other time. Neither is there any corroboration of any kind for Miguel's testimony that several children were in the bathroom at one time or other during the course of the incident and each of these children was ordered out by Adams or Scanlon. Such witnesses, if they existed, would be of obvious value in providing disinterested testimony as to, at a minimum, the demeanor of the Respondents during the incident. Being kicked out of a bathroom by a teacher is not a daily occurrence. Had multiple children been subjected to this unusual behavior by two teachers who were preparing to or were in the process of abusing a second grader, it should not have been difficult to identify them 24 hours later. Petitioner attempted to corroborate Miguel's testimony through a school psychologist, Diane Cotter (Cotter). She opined that the alleged abuse actually occurred. Cotter has no personal knowledge of the incident, does not treat Miguel, and has no credentials in forensic psychology. With deference to the witness, the undersigned disagrees with her opinion as to Miguel's reliability. The record as a whole establishes that Miguel's story grew in direct response to the attention and reinforcement he was receiving as the flushing toilet story was embellished with allegations of criminal child abuse. Petitioner, at its duly-noticed meeting of March 14, 2001, took action to suspend Adams and Scanlon without pay and to initiate dismissal proceedings against them pursuant to Sections 230.23(5)(f) and 231.36(6)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board issue a final order reinstating Gregory Adams and Brett T. Scanlon with back pay. DONE AND ORDERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida. _______________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2001.
The Issue Whether the Respondent should be disciplined as alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, Respondent, Willie Vance, was employed as a lead custodian at Ponce de Leon Middle School in Dade County, Florida. Over the course of several years, starting as early as 1986, Respondent was counseled regarding the personnel rules and employment requirements for continued employment with the School Board. More specifically, Respondent was advised that absenteeism presented a hardship in the workplace and that he would not be permitted to adversely affect the normal operation of the school. In this regard, Respondent was referred to the Petitioner's Employee Assistance Program on at least two occasions. In May 1990, Respondent was cited for excessive absenteeism and reminded of the collective bargaining agreement provisions which outline when absences may be grounds for termination. In the years that followed, Respondent continued to have difficulty complying with the regulations regarding absences. He was cited for failing to adhere to the procedures for reporting absences. As lead custodian Respondent was responsible for opening the school at the beginning of each school day. On several occasions, school staff were left to wait for Respondent to arrive to open the school or turn off security alarm systems. Respondent's attendance problem increased and in 1995 he received verbal and written directives regarding his attendance and work performance. By January 1996, Respondent's conduct had not improved. Instead, his continued failure to abide by the directives regarding attendance and work performance led to an incident wherein Respondent used profane and vulgar language and threatened a member of the school staff with bodily harm. These acts occurred in the presence of students and staff members. On February 9, 1996, Respondent was directed to refrain from threatening and/or verbally abusing other staff members. More important, Respondent was advised that continued behavior would result in further disciplinary action. On February 29, 1996, Respondent was absent from work, failed to timely alert school staff that he would not be at work, and, as a result, the school did not open on time. On March 18, 1996, Respondent was absent from work without prior authorization and did not report his absence to school administrators. On March 19, 1996, Respondent failed to sign out on the payroll sheet as all employees had been directed. On March 20, 1996, Respondent failed to report to work without prior authorization from the school principal. On March 26, 1996, Respondent was issued a written warning that his continued failure to perform his assigned duties and repeated indifference to the directives regarding attendance would result in further disciplinary measures. On April 2, 1996, Respondent was advised that continued failure to follow directives would be considered insubordination. On April 11, 1996, Respondent failed to report for work, failed to give notice of his absence, and failed to open the school timely. Since no one knew Respondent would be absent, no administrator could cover for Respondent. As a result, on this date the school mail was not delivered (including employees' paychecks). On April 24, 1996, Respondent was notified that if his performance did not improve by the end of the 1995-96 school year, that a recommendation for disciplinary action would be made to the School Board by the principal. In May 1996, the principal was notified that Respondent had failed to follow through with the Employee Assistance Program's recommendations. Subsequently, Respondent's conduct deteriorated. On May 31, 1996, he made a threat to another staff member; on June 4, 1996, he had a verbal altercation with another custodian; on June 7, 1996, he was absent without prior approval; on July 9, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 17, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 22, 1996, he was absent from work without prior authorization; and on July 23, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time. On July 24, 1996, Respondent was issued a written warning again advising him that his continued failure to comply with procedures could not be tolerated. He was advised that his performance was unacceptable, that it was having a detrimental effect on his co-workers, and that continued failure would be considered neglect of duty and gross insubordination. On September 11, 1996, in the presence of students, Respondent was verbally abusive and threatening to an assistant principal. On September 25, 1996, Respondent had another altercation with a co-worker. Respondent threatened the employee by holding a gasoline container and suggesting he would pour gasoline over the worker and light a match. Despite additional warnings and conferences with Respondent, Respondent failed to abide by the directives from school administrators. The directives were reasonable in nature and related to the offensive and inappropriate behavior exhibited by Respondent. Nevertheless, Respondent did not improve. From October 1996 through January 6, 1997, Respondent continued to exhibit an indifference to the directives from school personnel. He continued to fail to report to work and, on January 6, 1997, did not report his absence. On February 5, 1997, the School Board took action to suspend Respondent from his employment with the school district and to initiate dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a Final Order sustaining the suspension without pay previously entered, and dismissing Respondent from his employment with the School Board. DONE AND ENTERED this 31st day of March, 1998, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1998. COPIES FURNISHED: Dr. Roger C. Cuevas Superintendent Dade County Public Schools 1450 Northeast Second Avenue Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Luis M. Garcia, Esquire School Board of Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Willie Vance, pro se 3682 Grand Avenue, No. 3 Miami, Florida 33133
The Issue Whether Respondent engaged in the conduct (to: wit: "conduct unbecoming a School Board employee" and "misconduct in office") alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing in this case, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent is now, and was at all times material to the instant case, an employee of the School Board occupying a school monitor position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Other than this suspension, he has had no formal disciplinary action taken against him during the period of his employment with the School Board. 1/ Respondent's employment with the School Board began on March 10, 1993, when he was hired to fill an hourly school monitor position at John F. Kennedy Middle School (JFK). At the beginning of the 1993-1994 school year, Respondent became a full-time school monitor at JFK. He remained in that position until he was administratively reassigned in March of 1995, following the incident which led to the initiation of the instant disciplinary proceeding. As a school monitor, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1994, through June 30, 1997 (UTD Contract). Article V of the UTD Contract addresses the subject of a "employer rights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate employees "for just cause." Article VIII of the UTD Contract addresses the subject of a "safe learning environment." Section 1, paragraph A, of Article VIII provides as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph D, of Article VIII provides, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accord- ingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. Article XXI of the UTD Contract addresses the subject of "employee rights and due process." Section 1, paragraph B, of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Section 3, paragraph D, of Article XXI provides that educational support personnel who have completed their probationary period may be dismissed for just cause, which includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality and/or conviction of a crime involving moral tur- pitude. Such charges are defined, as appli- cable, in State Board Rule 6B-4.009. Section 3, paragraph F, of Article XXI provides, in part, that such an educational support employee is entitled to an appeal hearing on the Superintendent's recommendation that he or she be terminated and is further entitled to be served by the School Board with a Notice of Specific Charges prior to the hearing. Valerie Carrier is now, and was at all times material to the instant case, the principal of JFK. As principal, Carrier is responsible for the overall operation of the school. It is her obligation to take the necessary measures to maintain a safe environment for the school's students. There is a security staff at the school, comprised of school monitors, that assists Carrier in carrying out this responsibility. According to their job description, the school monitors on the school's security staff have the following "basic objectives" and "job tasks/responsibilities:" BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures that appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school admini- stration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the pre- sence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gathering areas (before, during and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Carrier assigns each school monitor a post at which the monitor performs these job duties. If a monitor observes, from his or her post, a student engaging in inappropriate behavior, the monitor may attempt to verbally redirect the student, but the monitor is not permitted to impose consequences for the student's behavior. Each monitor is issued a hand-held radio to be used for communicating with other school personnel. If a misbehaving student fails to comply with a monitor's verbal instructions, the monitor is required to use the hand-held radio to advise an administrator of the situation. Joshua Cummings was a student at JFK during the 1994-95 school year. He frequently engaged in inappropriate behavior. Carrier gave the members of her staff, including Respondent, special instructions regarding how they should respond to acts of inappropriate behavior on Joshua's part. 2/ She told them that they should report any such acts directly to her or, in her absence, her designee. On March 17, 1995, during the first lunch period, Respondent was assigned to a post on the entrance courtyard side of the chain link double-gate that separates the entrance courtyard from the cafeteria spill-out area. The cafeteria spill-out area is, as its name suggests, an area outside the cafeteria where students gather after eating lunch and wait for their lunch period to end. There is a school monitor posted in the cafeteria spill-out area near the door that students use to exit the cafeteria and enter the spill-out area. Another school monitor is stationed on the other side of the exit door inside the cafeteria. Pursuant to the standard operating procedure at the school, the chain link double-gate between the entrance courtyard and the cafeteria spill-out area remains closed and locked until the end of the lunch period, when the students are picked up by their teacher. At the teacher's request, the school monitor manning the post on the entrance courtyard side of the double-gate unlocks (with a key) and then opens the double-gate 3/ and lets the students waiting in the cafeteria spill-out area go into the entrance courtyard to meet their teacher. If it becomes necessary for a student in the spill-out area to use the restroom before the end of the lunch period, the student must reenter the cafeteria, obtain a pass from an administrator 4/ and then leave the cafeteria through the cafeteria's main entrance. Students are not permitted to use the double-gate to exit the spill- out area before the end of the lunch period. On March 17, 1995, Joshua Cummings had lunch during the first lunch period (which began at approximately 11:30 a.m. and lasted approximately 30 minutes). Jean LaDouceur and Dorys Cadet were among the other students who had lunch during the first lunch period on March 17, 1995. Approximately 100 or more of these students, including Joshua, Jean and Dorys, were in the cafeteria spill-out area, prior to the end of the first lunch period on this date, when Joshua started shaking the chain-link double- gate and yelling at Respondent to unlock and open the gate so that he (Joshua) could go to the restroom (which was located off the entrance courtyard near the gate). Respondent was in the area of his assigned post in the entrance courtyard sitting on the steps leading to the school auditorium. He got up and, as he walked toward the double-gate, he told Joshua that Joshua had to wait until the end of the period if he wanted to exit the spill-out area through the double-gate. Joshua apparently did not want to wait. He continued to shake the double-gate and shout obscenities at Respondent. Respondent responded in an unseemly and inappropriate manner that evinced a reckless disregard for the safety of Joshua and the other students in the spill-out area who were around him. Instead of continuing his efforts to verbally redirect Joshua or radioing for assistance, Respondent, from his position on the courtyard side of the double-gate, responded to Joshua's misbehavior by angrily hurling his hand-held radio (which had a battery pack attached to it) at the gate near where Joshua (who was on the spill-out area side of the gate) was standing. The radio hit the gate and shattered. Jean and Dorys were sitting on a picnic table in the spill-out area approximately twenty feet from the double-gate. There were several other students on or near the table with whom Jean and Dorys were conversing. The battery pack that had been attached to Respondent's hand-held radio before Respondent threw the radio at the gate wound up striking Jean on the right side of his forehead while he was sitting on the picnic table. (It apparently travelled through a space in the center of the gate.) Jean started bleeding. Accompanied by Dorys, Jean went to see Carrier to report what had happened. (To get to Carrier's office, which is off the entrance courtyard, approximately 20 feet from the double gate, they had to reenter the cafeteria because the double-gate was still locked.) Joshua also went to see Carrier. (He had been "nick[ed]" by a piece of Respondent's shattered radio.) After speaking with Jean and Joshua, Carrier called fire rescue. Fire rescue subsequently arrived on the scene and treated Jean's wound. Jean was advised by the paramedic who treated him to have a physician close the wound with stitches. Jean, however, did not seek further medical attention. (The wound eventually healed, but Jean has a small scar on the right side of his forehead as a result of his injury.) Carrier also called Jean's and Joshua's parents. After Jean's and Joshua's parents arrived at school, Carrier met with Respondent to discuss the incident. Respondent told Carrier what had happened. He went with Carrier to the entrance courtyard where he had been stationed and described how and where he had thrown his hand-held radio. Carrier picked up the pieces of Respondent's hand-held radio that were lying on the ground near the double-gate. Respondent also freely and voluntarily, at Carrier's request, prepared a written statement on the day of the incident in which he admitted that earlier that day, at about 11:53 a.m., in response to Joshua's yelling and kicking the double-gate, he had thrown his radio at the gate and that "parts of the radio [had gone] thr[ough] the gate and nick[ed Joshua]." After hearing the students' and Respondent's accounts of the incident, Carrier had legitimate concerns regarding Respondent's ability to effectively carry out his responsibilities as a school monitor. Respondent's conduct had jeopardized the health, safety and well-being of the very individuals it was his job, as a school monitor, to protect. Following the completion of an investigation of the incident, the School Board's Superintendent of Schools recommended 5/ that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its July 12, 1995, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. STUART M. LERNER, 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 19th day of February, 1996.
