The Issue The issue in this case is whether the School Board of Lee County (School Board) should terminate the Respondent, Christel Freeman, for fighting with another school bus employee on School Board property.
Findings Of Fact The Respondent, Christel Freeman, has been a school bus driver employed by the School Board since 2002. There was no evidence that she was anything other than an exemplary employee until an incident that occurred at the School Board’s Leonard Street bus compound at the end of the work day. She and her boyfriend, Mike Ortes, were driving their personal vehicle from the back of the compound to the front, where the employees clock out and usually visit for a while before going home, when she spotted another employee, Ashley Thomas, who had just recently been transferred to Leonard Street. The Respondent approached Thomas, who was visiting with co-workers at a picnic table, because she suspected that Thomas was having sexual relations with her boyfriend and wanted to tell Thomas to stay away from her boyfriend, stop interfering with the Respondent’s family unit, and stop “talking trash about her.” When she got within earshot, the Respondent asked Thomas if they could talk in private. Thomas said, yes, and the two walked away from the co-workers at the picnic table. The Respondent began to tell Thomas what she wanted to talk about, and the conversation soon became heated. After they left the view of the co-workers at the picnic table, they passed another co-worker who was sitting in a vehicle and who said something to Thomas. As Thomas turned to respond to the speaker, the Respondent struck Thomas with her hand or fist on the side of the face, near the eye. Thomas was carrying her car keys, cell phone, and purse and was surprised by the blow. When the Respondent followed up with another blow, Thomas began to defend herself by hitting back. The nearby co-workers very quickly ran to the combatants to separate them. In the process, the combatants fell down, with the Respondent landing on top. The scuffling continued for a brief time until the combatants were separated. By this time, Thomas’s shirt had been torn open at the front buttons, her face was bruised and swelling, and her eye was hurt. The Respondent also had an eye injury from being hit with Thomas’s car keys. The police were called, but the Respondent left the scene with her boyfriend by the time the police arrived. After some leading questions by the Respondent, Ortes supported her testimony that they went to the hospital for emergency treatment for her eye and, once there, called the police, who responded to the hospital. After discussing the incident with the police, neither woman pressed charges. The Respondent’s primary defense is that after she called Thomas a “nasty bitch,” Thomas struck her first with the car keys, and the Respondent defended herself. However, the other witnesses to the incident saw it the other way around, with the Respondent hitting first without provocation. The Respondent attempted to undermine that testimony by saying those witnesses were family and friends of Thomas. To the contrary, the evidence was that the family and friends of Thomas were not the eyewitnesses who testified; rather, Thomas’s family and friends either did not testify or testified that they were not eyewitnesses to the incident. While the Respondent attempted to downplay the state of her emotions at the time of the incident, it is clear from the evidence that she was angry at Thomas and initiated the conversation in that state of mind. It is possible that what triggered the Respondent’s violence was Thomas saying the Respondent should ask her boyfriend for the answers to her questions, which the Respondent took as flaunting an admission that they were having sexual relations. According to the Respondent’s testimony, her job with the School Board is very important to her and her family. Notwithstanding that she has not admitted instigating the fight with Thomas and throwing the first blow, she understands that the consequences of engaging in similar conduct again would certainly be the permanent loss of her job. For that reason, it is unlikely that she would put herself in that position in the future. There is a collective bargaining agreement between the School Board and the Support Personnel Association of Lee County (SPALC) that governs the Respondent’s employment. The procedure followed in the Respondent’s case is set out in sections 7.10 and 7.103 of the SPALC agreement. Section 7.10 of the SPALC agreement provides: The parties agree that dismissal is the extreme disciplinary penalty, since the employee’s job seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary actions(s) taken against SPALC bargaining unit members shall be consistent with the concept and practice of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee’s record. Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause. Section 7.10 also states that employee misconduct is a ground for suspension without pay or termination of employment. The SPALC agreement does not define misconduct. The School Board has policies that govern employee conduct. Policy 4.09 adopts a “zero tolerance” policy for threats of violence. It prohibits “any verbal, written or electronically communicated threat, suggestion or prediction of violence against any person.” Id. “Any serious threat of violence shall result in immediate disciplinary action and referral to the appropriate law enforcement agency.” Id. School Board Policy 5.29(1) states: “All employees are expected to exemplify conduct that is lawful and professional ” School Board Policy 2.02(2) describes and prohibits “unacceptable/disruptive behavior.” This includes “[u]sing unreasonable loud and/or offensive language, swearing, cursing, using profane language, or display of temper.” Id. at ¶ (b). It also includes “[t]hreatening to do bodily or physical harm to a . . . school employee . . . regardless of whether or not the behavior constitutes a criminal violation.” Id. at ¶ (c). It also includes “[a]ny other behavior which disrupts the orderly operation of a school, school classroom, or any other School District facility.” Id. at ¶ (e). Section 7.103 of the SPALC agreement allows an employee being terminated to either file a grievance under Article 5 or request a hearing before the School Board, but not both. Section 7.13 of the SPALC agreement provides that employees “shall not engage in speech, conduct, behavior (verbal or nonverbal), or commit any act of any type which is reasonably interpreted as abusive, profane, intolerant, menacing, intimidating, threatening, or harassing against any person in the workplace.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding the Respondent guilty of employee misconduct and either terminating her employment, or suspending her without pay and reinstating her upon entry of the final order. DONE AND ENTERED this 27th day of June, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 27th day of June, 2014. COPIES FURNISHED: Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Nancy J. Graham Superintendent of Lee County Schools 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Christel Freeman 2119 French Street Fort Myers, Florida 33916-4434
Findings Of Fact The Respondent, Lesley A. Baker, was suspended from his employment as a teacher on continuing contract with the Orange County School Board on February 5, 1981. The Respondent was charged with misconduct in office and gross insubordination for administering corporal punishment without following the guidelines established by state law, school board policy, local school policies and the specific instructions of his principal. At the time of his suspension, Respondent Baker was a fifth grade teacher at Blankner Elementary School. Edd W. Taylor, is principal of Blankner Elementary School and has been in that position since the Respondent came to Blankner three years ago. Mr. Taylor has been a principal for over twenty years and a teacher for twenty eight, all of which occurred at the elementary school level. As principal of Blankner Elementary, Mr. Taylor maintains a copy of all school board policies and rules, including those relating to the administration of corporal punishment. The rules and policies consist of three bound volumes which are kept in the principal's office where they are available to teachers or any other persons who need to refer to them. Additionally in his capacity as principal Mr. Taylor adopted guidelines for the use of corporal punishment at Blankner Elementary which were included in a faculty handbook provided to each teacher prior to the school year. The handbook was reviewed with the teachers at the beginning of the 1980-81 school year and special emphasis was given to the policies found in the handbook concerning corporal punishment. Respondent Baker was provided with a copy of the faculty handbook which he read including that portion relating to corporal punishment. The Blankner Elementary policies established by Mr. Taylor provide that only the principal or the principal's representative may administer corporal punishment. The only representative designated to administer corporal punishment in the principal's absence is the sixth grade representative. The Respondent Baker is not the sixth grade representative and was never authorized by the principal to administer corporal punishment. On November 21, 1980, Mr. Taylor delivered a written note to the Respondent which stated: "As you know, for other than CP [corporal punishment] or suspension offenses, you handle most of room discipline since this is your responsibility. See me on this note. EWT" (Petitioner's Exhibit 5) 2/ The Respondent has been employed as a teacher in the Orange County School District since 1964. Despite being employed by the school system for a substantial length of time, the Respondent was not aware of the Orange County School Board's policies and requirements concerning corporal punishment at the time of the incidents in question. Although the Respondent read the Blankner Elementary faculty handbook, he was unaware of any policies or requirements in the handbook concerning the administration of corporal punishment. Similarly, the Respondent was unfamiliar with the Florida Statutes relating to corporal punishment. In response to inquiries from the Board attorney, Respondent's understanding of corporal punishment policies and requirements were stated as follows: MR. BOWEN: Were you aware of any require- ments with respect to the administration of corporal punishment? RESPONDENT: Yes. MR. BOWEN: What requirements were you aware of? RESPONDENT: Mutilation. MR. BOWEN: Mutilation? What do you mean by that? RESPONDENT: Where you just beat up on a kid. MR. BOWEN: What about that? RESPONDENT: That's not right. MR. BOWEN: That's not right? Are there any other requirements that you're aware of other than that? RESPONDENT: There are none that I know of. MR. BOWEN: As far as you know, the only requirements of you with respect to the administration of corporal punishment is that you can't mutilate the kids? RESPONDENT: As far as I know. (Petitioner's Exhibit 5 at 5-6) In October, 1980, the Respondent supervised a student field trip to the John Young Planetarium. During the bus ride to the Planetarium, the students were advised by the Respondent to be quiet. Two fifth grade students, Chris Yavanovich and Richard Hamilton, attracted the Respondent's attention by talking and pointing to a passing car. The Respondent approached the two boys and struck Richard Hamilton on the arm two or three times with his fist for disobeying his instructions. 3/ In his classroom the Respondent kept a wooden dowel approximately one yard long and one-half inch in diameter which was used primarily as a pointer. On at least two occasions, however, the Respondent used the dowel to discipline students in his class. When the dowel was used for this purpose, no other adult was present to act as a witness and the discipline was administered without authorization from the principal. On February 4, 1981, the Respondent Baker was standing outside the boys' restroom. A group of boys had gathered in the restroom prior to going to lunch. The students in the restroom were shouting, screaming and being generally disruptive which prompted the Respondent to enter the restroom to restore order. Once inside the restroom, the Respondent observed a group of boys yelling, pushing, swinging on bars and playing with lights. When the students did not respond to his commands to settle down, the Respondent removed his belt and attempted to strike each of the students as they exited from the restroom. At least nine students were struck by the Respondent between one and three times. Three of the boys were struck with sufficient force to leave marks on their legs which were visible the following day. None of the bruises or marks were serious enough to require any of the students to miss school or consult a physician. 4/ Once outside the restroom one of the students who had been struck, Chris Yavanovich, called the Respondent a "bitch". The comment was overheard by another teacher who reported it to the Respondent as he left the restroom. The Respondent grabbed the student by the upper right arm and took him to the principal. The students' upper right arm was grabbed with sufficient force to leave bruises or finger marks which were visible the afternoon of the incident. The Respondent denied grabbing Chris Yavanovich by the upper arm. The Respondent asserted that he grabbed the boy by the wrist and any injury to the upper arm occurred either in the restroom or at some other time. While the incident in the restroom was occurring, the principal was standing in a corridor approximately 50 feet from the restroom. After discussing the incident with Chris Yavanovich, the principal went to see the Respondent in his classroom. Outside the classroom the principal overheard the Respondent tell his class that ". . . next time, it may be three or four licks from him." (Vol. I - TR-21). The Respondent denied making this comment to his class and could not recall the principal coming to his room at that time. The principal of Blankner Elementary, Mr. Taylor, stated that based upon his training and experience in the elementary schools, there was no justification for the Respondent's actions. Mr. Taylor does not want the Respondent to return to Blankner Elementary or any other school in the Orange County School District and concurs with the Superintendent's recommendation regarding termination. 5/ The principal's views are also shared by the area administrator, Lola Brady, an individual with forty years experience in the school system. Superintendent Schott testified that in his twenty years in education, he had never encountered a situation in which a teacher administered corporal punishment randomly with a belt and without authorization from a principal or other person in charge. The Superintendent regards the restroom incident as an inexcusable and unjustified assault upon the involved students which is too serious to justify any penalty less than termination. In the Superintendent's opinion, the correct approach to the problem would have been to order the group of boys to be quiet and refer those who continued to misbehave to the principal who was nearby. The Respondent proffered copies of reports and records relative to a number of employees of the Orange County School Board (Respondent's Exhibits 3- 10). 6/ The proffered exhibits consist of all of the files maintained in the Office of the Superintendent concerning complaints of alleged misuse of corporal punishment by teachers and the disposition of the same. The proffered exhibits reflect situations in which employees were given written reprimands or allowed to resign following investigations by administrators concerning the alleged misuse of corporal punishment. None of the factual situations outlined in the proffered exhibits is substantially similar to the instant case. In the two cases in which teachers resigned, the students who were struck suffered injuries serious enough to consult physicians. The School Board of Orange County does not have a policy, written or verbal, that specifies when a person will be reprimanded or terminated for failing to follow procedures concerning corporal punishment. The Respondent Baker has been employed as a teacher for approximately twenty years and is certified to teach elementary education, the educably mentally retarded and driver's education. He has a good reputation in the community and is active in Little League, Cub and Boy Scouts and church activities. During his tenure at Blankner Elementary, the Respondent received satisfactory evaluations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found to have committed misconduct in office as alleged in the notice of charges dated February 9, 1981 and May 29, 1981 and that as a consequence of such a finding, his employment with the Orange County School Board be terminated. DONE and ORDERED this 16th day of September 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1981.
The Issue Whether Respondent, Barbara Aboushahba, committed the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent was employed by Petitioner as a kindergarten teacher pursuant to the terms of a professional services contract with Petitioner. Respondent is a member of the bargaining unit covered by the Collective Bargaining Agreement between the School Board of Orange County and Orange County Classroom Teachers Association. On June 25, 2003, Respondent received a written directive "to provide clarification or guidance" from the principal of the school where she taught that she "must avoid touching students except as is absolutely necessary to effect a reasonable and lawful purpose," and "to avoid even the appearance of verbal intimidation of students." On May 18, 2005, Respondent received a letter of reprimand for misconduct from her principal, because she "grabbed a student to get his attention." In the letter she was warned that "should there be another incident of a similar nature, discipline, up to and including dismissal, may be recommended." On May 31, 2005, Respondent received a letter of reprimand for violating "prior directives and [that you] again placed your hands on a student in a manner that could be interpreted as punitive." In addition, on that date Respondent received a directive that she avoid "touching a student in a manner that serves no educational or lawful purpose" and that she "must exercise care and professional judgment to avoid the appearance of the inappropriate use of physical intimidation." She was urged to "carefully consider when and how to respond to student behaviors." On May 26, 2006, Respondent was suspended without pay for five days as a result of "allegations that you used inappropriate force against a student" and that she "violated two previous directives regarding placing your hands on a student." On March 26, 2007, Respondent executed a Settlement Agreement to resolve an Administrative Complaint that had been filed by the Education Practices Commission in John L. Winn v. Barbara Aboushahba, Case No. 056-0009-V. The Settlement Agreement included a letter of reprimand and a $400.00 fine. On April 22, 2007, E.B., a ten-year-old student in Respondent's computer lab, had not completed his assignment. Respondent grasped E.B.'s hand and placed his hand on the computer keyboard and/or mouse, with her hand superimposed on his hand. This apparently upset E.B., who then pulled his shirt up and over his head. Respondent then pulled E.B.'s shirt down from his face and told him to "stop crying like a baby." E.B. was crying as a result of being upset by Respondent's actions. Respondent's touching of E.B. was minimal, but unnecessary and inappropriate. Her comment to him was callous and insensitive. Given the fact that this incident occurred less than one month after the above-referenced settlement with the Education Practices Commission, it is apparent that Respondent has not responded appropriately to the directives, reprimands, and guidance directed to similar inappropriate conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Barbara Aboushahba's, "gross insubordination" constitutes "just cause" under Section 1012.33, Florida Statutes, to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 7th day of March, 2008. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Lindsay N. Oyewale, Esquire deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP 332 North Magnolia Avenue Post Office Box 87 Orlando, Florida 32802-0087 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether just cause exists to suspend Respondent from her employment with the Broward County School Board.
Findings Of Fact Background Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times relevant to this proceeding, Respondent was employed as an art teacher at Western High School ("Western High"). Respondent's career with the School Board, which spans some 21 years, has not proceeded entirely without incident: on January 31, 1997, Respondent uttered profanity in the presence of her students, which resulted in the issuance of a written reprimand that directed her to "cease and desist from inappropriate remarks"; several months later, Respondent's further use of colorful language led to a second written reprimand; and, in August 2009, Respondent agreed to serve a three-day suspension "for inappropriate language." The School Board now seeks to suspend Respondent for five days based upon an allegation that, on August 16, 2013, she used profanity and "aggressively grabbed" a female student's arm during an episode in Western High's parking lot. The facts relating to the instant charges are recounted below. Instant Allegations On the morning of August 16, 2013——the final weekday before the start of the 2013-2014 school year——Respondent arrived at Western High's campus to place the finishing touches on her classroom. On several occasions throughout the day, one of Western High's assistant principals announced that the school's parking lot would be locked at 5:30 p.m. The final such warning, which was made at 5:15 p.m., prompted Respondent to exit the building approximately five minutes later. As she headed toward her vehicle, Respondent (accompanied by her mother, Carol Fischer, herself a longtime educator) noticed several groups of students decorating parking spaces in the school lot. As explained during the final hearing, the students' presence was not unusual, for incoming seniors at Western High were authorized, pursuant to a school fundraiser, to "purchase" a parking space and adorn it as each saw fit. Mindful that the school gate would soon be locked, Respondent walked toward the groups and, from a distance of approximately 50 yards, loudly directed them to pack up their belongings and leave the campus. Each of the groups complied, save for one, which prompted Respondent to approach the stragglers and repeatedly announce——with diminishing volume as she made her way closer——that they needed to go home. Suffice it to say that these importunings had no discernable effect on the group's activities; as a result, Respondent continued toward the parking spot where the students were working. Now in their immediate vicinity, Respondent informed the group (which included two female students, N.S. and T.C., both of whom were incoming seniors at Western High) that they had two minutes to gather their possessions and leave the campus. During the ensuing interaction, T.C. began to argue with Respondent and, to make matters worse, acted as if she intended to continue painting. Her patience understandably waning, Respondent reached toward T.C. and, in a non-violent fashion, placed her hand on the student's upper arm. This brief physical contact, intended to secure T.C.'s complete attention and gesture her in the direction of the exit, was instantly met with a vocal objection. Respondent immediately reacted by stepping backwards,1/ at which point the group began to gather up the painting materials. T.C. and the other students departed the parking lot a short time later. Contrary to the complaint's allegations, the credible evidence demonstrates that, although Respondent addressed the students with an elevated voice (but only as she approached from a distance), she at no point used profanity or any other inappropriate language.2/ Further, the record is pellucid that Respondent's momentary, gesturing contact with T.C. was completely innocuous and in no way constituted an "aggressive grab."3/ Indeed, T.C. acknowledged during her final hearing testimony that Respondent plainly intended no harm.4/ Finally, and with respect to the charge of insubordination, there has been no showing that Respondent's behavior ran afoul of any direct order. Although the School Board attempted to prove the existence of a "no touching whatsoever" rule, the testimony on that point was internally contradictory and ultimately unpersuasive. In any event, and as discussed shortly, a general policy——i.e., one applicable to all employees——does not constitute a direct order for the purpose of sustaining an insubordination charge. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent is not guilty of misconduct in office. It is determined, as a matter of ultimate fact, that Respondent is not guilty of insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: exonerating Respondent of all charges brought against her in this proceeding; and awarding Respondent any lost pay and benefits she experienced as a result of the five-day suspension. DONE AND ENTERED this 3rd day of June, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 3rd day of June, 2014.
Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK 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 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
The Issue Whether Jose R. Bustos (Respondent) committed the acts alleged in the Revised Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on March 6, 2015, and whether the School Board has good cause to terminate Respondent’s employment as a school security monitor.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Braddock High is a public school in Miami-Dade County, Florida. The School Board hired Respondent on September 19, 2001, as a school security monitor assigned to Braddock High, the position Respondent continuously held until the date of the disciplinary action at issue. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. Braddock High is a large school in terms of student population and campus size. Braddock High employs 12 full-time security monitors. While it is common practice to hire a substitute for an absent teacher, Braddock High does not employ a substitute security monitor to replace an absent security monitor. If a security monitor is absent on any given day, the schedules of the other security monitors must be adjusted to avoid a breech in security. Respondent has been documented for poor attendance since April 2006. DECEMBER 4, 2009, MEMORANDUM Manuel S. Garcia has been the principal of Braddock High for the last 13 years. On December 4, 2009, Mr. Garcia issued to Respondent a memorandum on the subject “Absence from Worksite Directive.” From October 2009 to December 2009, Respondent accumulated 13.5 absences1/ of which 7.5 were unauthorized. The 7.5 unauthorized absences were categorized as “Leave Without Pay Unauthorized (LWOP-U)”. The memorandum issued by Mr. Garcia as Respondent’s supervisor, provided, in part, as follows: Because your absence from duties adversely impacts the work environment, particularly in the effective operation of this worksite, you are apprised of the following procedures concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to a designated site supervisor, Mr. Manuel S. Garcia, principal or Dr. Edward G. Robinson, assistant principal. Absences for illness must be documented by your treating physician and a written note presented to the designated site supervisor upon your return to the site. Your future absences will be reported as LWOU [sic] (unauthorized) until you provide the required documentation to show that you qualify for Family Medical Leave Act (FMLA) or other leave of absence. If it is determined that future absences are imminent, leave just [sic] be requested and procedures for Board approved leave implemented, and the FMLA or ADA requirements, if applicable, must be complied with. These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program and to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities. APRIL 23, 2010, CONFERENCE FOR THE RECORD On April 23, 2010, Respondent was required by Mr. Garcia to attend a Conference for the Record. The purposes of the conference were to address Respondent’s non-compliance with School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties) and his insubordination to attendance directives. Between January 19, 2010, and April 6, 2010, Respondent was absent 14.5 days without communicating his intent to be absent to the principal or the assistant principal. As part of the conference, Mr. Garcia reiterated in writing to Respondent the directives pertaining to attendance set forth in the December 4, 2009, memorandum. Mr. Garcia advised Respondent that “[a]ny non-compliance with these directives will compel [sic] gross insubordination and will compel further disciplinary measures.” Mr. Garcia provided Respondent with a copy of School Board rules 6Gx13-4A.1.21 (Responsibilities and Duties) and 6Gx13-4E-1.01 (Absences and Leave). Mr. Garcia issued Respondent a referral to the School Board’s Employee Assistance Program (EAP). There was no evidence that Respondent used that referral. For the 2009-2010 school year, Respondent was absent a total of 28.5 days of which 17.5 days were unauthorized. DECEMBER 8, 2011, MEMORANDUM OF CONCERN On December 8, 2011, Mr. Garcia issued to Respondent a Memorandum of Concern addressing his excessive absences. Within less than five months into the 2010-11 school year, Respondent had accumulated 15 absences of which 8 were unauthorized. Respondent was informed that he was in violation of School Board Policy 4430 - Leaves of Absence.2/ Additionally, he was directed to report any future absence to Mr. Medina, the assistant principal. DECEMBER 5, 2012, MEMORANDUM On December 5, 2012, Mr. Garcia issued Respondent another memorandum addressing his absences. Mr. Garcia noted that Respondent had been absent a total of 11 days during the 2012-2013 school year. Respondent’s absence on November 21, 2012, was unauthorized. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009, and April 23, 2010. SEPTEMBER 10, 2013, MEMORANDUM On September 10, 2013, Mr. Garcia issued Respondent another memorandum addressing his absences. Between September 27, 2012, and August 29, 2013, Respondent had 36.5 absences, 19.5 of which were unauthorized leave. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009; April 23, 2010; and December 12, 2012. Mr. Garcia stated to Respondent that he considered Respondent’s actions of failing to abide by the attendance directives to be insubordination. OCTOBER 16, 2013, CONFERENCE FOR THE RECORD On October 16, 2013, Mr. Garcia conducted a Conference for the Record with Respondent to address Respondent’s attendance, his failure to abide by the previously issued directives, and his future employment with the School Board. Between September 30 and October 4, 2013, Respondent was absent without authorization. For three of those four days, Respondent did not notify anyone at Braddock High that he would be absent. Mr. Garcia reiterated the directives he had given to Respondent on December 4, 2009; April 23, 2010; December 12, 2012; and September 10, 2013. Mr. Garcia advised Respondent again that failure to comply with directives would be deemed gross insubordination. Mr. Garcia again provided Respondent with a copy of School Board Policy 4430 - Leaves of Absence. Mr. Garcia provided to Respondent a second referral to the EAP. In addition, Mr. Garcia gave Respondent contact information for four School Board Departments (including the name and telephone number of each department’s director). Those departments were Civil Rights Compliance; Leave, Retirement, and Unemployment; Human Resources – Americans with Disabilities Act; and EAP.3/ On October 18, 2013, Mr. Garcia issued a written reprimand to Respondent based on his absenteeism and his repeated failure to notify administrators in advance of absences. JANUARY 16, 2014, CONFERENCE FOR THE RECORD On January 10, 2014, Mr. Garcia issued to Respondent a Notice of Abandonment based on Respondent’s absence from work for the workweek beginning January 6, 2014, and his failure to communicate in advance with any school administrator about the absences. On January 16, 2014, Mr. Garcia conducted a Conference for the Record to address Respondent’s attendance. Respondent’s unauthorized absence for an entire week and his failure to abide by the previously issued directives prompted the Conference for the Record. Mr. Garcia also discussed Respondent’s future employment with the School Board. Mr. Garcia advised Respondent that the directives that had been repeatedly reiterated to Respondent were still in full force and effect. Mr. Garcia advised Respondent that failure to adhere to those directives would be considered gross insubordination. Mr. Garcia gave Respondent copies of the applicable School Board policies, including a copy of School Board Policy 4430–Leaves of Absence, and 4210-Standards of Ethical Conduct. Mr. Garcia issued Respondent a letter of reprimand. MARCH 12, 2014, CONFERENCE FOR THE RECORD Following the written reprimand in January 2014, Respondent was absent without authorization on six consecutive school days in February 2014. On March 12, 2014, Carmen Gutierrez, the district director of the Office of Professional Standards, conducted a Conference for the Record with Respondent because of Respondent’s history of absenteeism and his unauthorized absences in 2014. Ms. Gutierrez issued to Respondent the same directives Mr. Garcia had repeatedly issued to Respondent. Ms. Gutierrez informed Respondent that his failure to follow directives constituted gross insubordination. The Summary of the Conference for the Record contains the following: You were given the opportunity to respond to your excessive absenteeism. You stated that you had a family problem, a family member that was sick and you were helping them [sic] out. Ms. Hiralda Cruz-Ricot spoke on your behalf stating that you had been diagnosed with fibromyalgia and it impedes your ability to do things. She added that you were recently diagnosed and are not undergoing treatment. Ms. Cruz-Ricot said that you would be producing doctor’s notes since Mr. Garcia remarked that he had only received one doctor’s note dated October 18, 2013 from Broward Psychological Services. MAY 7, 2014, SUSPENSION At the School Board meeting on May 7, 2014, the School Board took action to suspend Respondent without pay for fifteen workdays for just cause, including, but not limited to: gross insubordination, excessive absenteeism, non-performance and deficient performance of job responsibilities, and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. Respondent was notified of the Board’s action via a letter dated September 4, 2014. JUNE 3, 2014, NOTICE OF ABANDONMENT Respondent was due back from his suspension on May 29, 2014. Respondent failed to show up for work on May 29th, May 30th, June 2nd, and June 3rd. Respondent was mailed another Notice of Abandonment. Respondent provided no explanation for his leave. At the beginning of the following school year on August 19, 2014, Mr. Garcia reiterated the directives as to absenteeism that had been repeatedly given to Respondent by Ms. Gutierrez and by Mr. Garcia. OCTOBER 28, 2014, CONFERENCE FOR THE RECORD Respondent failed to report to work for four consecutive school days beginning September 29, 2014. As a result, on October 28, 2014, Ms. Gutierrez conducted a Conference for the Record with Respondent to address Respondent’s absenteeism, gross insubordination, non-performance and deficient performance of job responsibilities and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. On December 9, 2014, Respondent received a letter informing him that the Superintendent of Schools would be recommending that the School Board suspend Respondent’s employment without pay and initiate proceedings to terminate that employment. At its regularly scheduled meeting on December 10, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate his employment. FAILURE TO COMMUNICATE In addition to the excessive absenteeism set forth above, between October 2009 and December 2014, Respondent repeatedly failed to communicate in advance with any administrator that he would be absent on days he failed to appear for work. DEPRESSION Respondent’s only exhibit was a letter from Dr. Maribel Agullera, a psychiatrist. This letter confirms that Respondent has been diagnosed with “Mayor Depressive Disorder, Recurrent, Moderate” and “Alcohol Dependence.” The exhibit also confirms that Respondent is on medication. Respondent testified, credibly, that he was diagnosed with depression before 2001, the year he first started working at Braddock High. Respondent testified he has suffered from depression for most of his adult life and that all of his absences were related to depression. There was no other evidence to support the contention that Respondent’s repeated absences should be attributed to depression. In the absence of competent medical evidence to support Respondent’s contention, the undersigned declines to find that Respondent’s excessive absenteeism and his failure to appropriately communicate with school administrators over a five-year period was attributable to depression.4/
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Jose R. Bustos. DONE AND ENTERED this 11th day of May, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 11th day of May, 2015.
Findings Of Fact The Petitioner herein, Joann I. Lewis, began working for the Respondent, Tampa General Healthcare and Health Park as a unit coordinator at its Genesis project located at 5802 N. 32nd Street in Tampa in December, 1979. Her duties were to perform general clerical work, to answer the phone, to prepare and copy medical records and reports, and other tasks of a similar nature. Her immediate supervisor was Sharon Steinmetz, who was her team leader. On November 30, 1992, Ms. Steinmetz prepared a memorandum which was forwarded to Ms. Lewis outlining Lewis' unsatisfactory behavior. Specifically in issue was the question of her tardiness, and at subparagraph 5 of the listed reasons, Ms. Steinmetz indicated that from September 24, 1992 through October 19, 1992, Petitioner was tardy 16 times. Ms. Lewis refused to acknowledge receipt of this memorandum. On January 20, 1993, a staff meeting was held at the Genesis office, called by Teresa O'Connor, the program director, for Ms. Steinmetz and all members of the staff. Staff meetings were considered mandatory. The purpose of this meeting was to discuss the company's new tardiness policy which went into effect the first of the year. A copy of the new policy was given to all attendees at this meeting. Petitioner's signature appears on the list of attendees, but she claims she was not given her copy at that time. She claims she received it somewhat later, but no reason was shown as to why she did not get hers when all other employees received theirs. The new policy clearly states that when an employee accumulates 13 incidents within a 365 day period from the inception of the policy, progressive disciplinary action would be taken. All employees participated in the program, including the Petitioner, and though she claims not, her slate regarding tardiness was wiped clean effective January, 1993, as was that of all other employees. However, because Ms. Lewis had been placed in an employee enhancement program as a result of the memorandum and letter given her on November 20, 1992, she was not relieved of the strictures required by that program, with the exception that, as was stated above, her list of tardies and absences was wiped clean prior to January 1, 1993. In May, 1993, Ms. Steinmetz met with the Petitioner about her attendance and at that time again gave her a copy of the tardiness policy and a listing which showed that Petitioner had been tardy six times since January 1, 1993. On July 26, 1993, Ms. Steinmentz again met with Petitioner, this time in Ms. Steinmetz' office and at that time noted that Petitioner had been tardy twelve times since February 1, 1993. This was a written verbal warning, which is the initial disciplinary action under the new tardy policy. The corrective action required was that Petitioner cease further tardiness. Petitioner refused to sign this warning memorandum which had been discussed with Ms. O'Connor prior to its being presented to Petitioner. On August 26, 1993, Ms. Steinmetz again called Petitioner to her office and presented her with a list of nine tardies and two unscheduled absences which occurred during the period between January 1, and August 20, 1993. One tardiness was for one minute; two were for two minutes; one was for fifteen minutes; one for twenty-four minutes,; one for twenty-eight minutes; one for thirty minutes; one for one hour; and one for three hours and thirty minutes. On this same date, Ms. Steinmetz gave Petitioner a written warning, which had previously been approved by Ms. O'Connor, and which Respondent refused to sign. In this written warning, Petitioner was notified that upon the next occurrence of tardiness, she would be given a three day suspension without pay. Thereafter, Ms. Steinmetz met with Ms. O'Connor to see if there was any way they could help Petitioner with her tardiness. When Steinmetz subsequently spoke with Petitioner, Petitioner indicated there was nothing they could do. Petitioner was again tardy in September 1993 and on September 22, 1993, she was given a three day suspension without pay. At that time both Ms. Steinmetz and Ms. O'Connor discussed the reasons for the suspension with the Petitioner and Petitioner agreed and signed the notice of suspension. The dates of the suspension were chosen to accommodate the Petitioner's needs. Apparently her son, who was away at college, had been shot, and she needed to go see him. Therefore, the days of the suspension were imposed consistent with her need to make this trip. Nonetheless, the first day back to work, after the suspension, Petitioner was again tardy. As a result, on October 19, 1993, Ms. Steinmetz and Ms. O'Connor met with the Petitioner, advised her of the fact that she was to be terminated and the reasons therefor. Petitioner refused to sign or take with her a copy of the termination notice, and it was thereafter mailed to her that same day. Petitioner requested a pre-disciplinary hearing on the issue of her termination and claims she was to be advised by the Respondent as to when the hearing would be held. She also claims that she was not advised prior to the hearing and received notice thereof two days after it was held. When Petitioner called Respondent's office about that, she was told she would be notified as to what could be done, but she claims she never heard from Respondent again. Ms. Steinmetz' comments regarding Petitioner's record of tardies and absences is confirmed by the testimony of Ms. O'Connor. The Respondent's policy on tardiness is that any period of lateness is considered a tardy, and at the thirteenth incident of tardiness, progressive discipline will be initiated. Ms. O'Connor claims to have discussed all discipline taken against Petitioner with Ms. Steinmetz before it was imposed, but she did not necessarily sign all actions that were taken. For example, she did not sign any of the records of counseling, but any written disciplinary action which was imposed on Petitioner was signed by her. Both the verbal and written warning were approved by Ms. O'Connor and both, she insists, are consistent with the company's tardiness policy. Ms. O'Connor claims, as does Ms. Steinmetz, that both tried to consider various ways to help Petitioner with ways to overcome her tendency toward tardiness. They suggested some changes to Petitioner who rejected them. These included different work hours or a different work load, but as Petitioner claimed at hearing, these were not "feasible" alternatives. Ms. O'Connor made the decision to terminate Petitioner's employment with the Respondent, and she discussed this with Ms. Steinmetz before the action was taken. This dismissal action was based solely on the Petitioner's continuing series of excessive tardiness, and in no way was based on her race. In that regard, Petitioner, while claiming her dismissal was based on race, admits that many other individuals who had extended periods of tardiness were not discharged and that most of those individuals were black, as is she. In fact, the majority of the employees at the Genesis project are black, but she sees no way that her dismissal could have been based on anything other than her race notwithstanding the fact that she was ten minutes late for the hearing she requested in this instance. Petitioner also notes that subsequent to her dismissal, she filed for unemployment compensation which was denied because, according to the examiner, she was discharged for tardiness and not at the fault of the employer. She also filed the initial equal opportunity complaint with the Commission on Human Relations which was denied. She claims in that regard, however, that the Commission did not contact any of the five witnesses she listed on her complaint form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for relief filed in this matter by Joann I. Lewis against the Hillsborough County Hospital Authority be dismissed. RECOMMENDED this 9th day of August, 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 9th day of August, 1995. COPIES FURNISHED: Joann I. Lewis 6702 North 33rd Street Tampa, Florida 33610-1518 Sandra L. Fanning, Esquire E. John Dinkel, III, Esquire MacFarlane Ausley Ferguson & McMullen 2300 First Florida Tower 111 Madison Street P.O. Box 1531 (Zip 33601) Tampa, Florida 33602 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue presented is whether or not the Respondent should be dismissed from her employment with the Dade County School Board. Petitioner called Mrs. Rose Ann Collum, Keith William Reilly (a minor), Anthony Rossi (a minor), Mrs. Carol Zappi, Robert Staelen, and Desmond Patrick Gray and had admitted Exhibits 1 and 2. Respondent testified on her own behalf. The Pre-Trial Stipulation was admitted as Hearing Officer's Exhibit 1. No transcript was provided and the parties' failure to file proposed Findings of Fact and Conclusions of Law within the time stipulated therefor is deemed a waiver of that right.
Findings Of Fact At all times pertinent hereto, Respondent was an employee of the School Board of Dade County under a continuing contract of employment as an elementary school teacher at Madie Ives Elementary Community School in Miami, Florida. She has taught there successfully since 1966 or 1967. Beginning on or about September 1, 1983 and continuing through and including May of 1984, Respondent engaged in a course of conduct with the students assigned to her which included paddling, and on multiple occasions during this period she administered this paddling, which is in the nature of corporal punishment, to various students (more than 20) in her class. The type of paddling involved was described variously by the two students who testified live at formal hearing as "did not hurt," "just an attention getter," "not bad," "only a little sting," "only when I was bad," and "I was never injured or hurt." Parents were never contacted in advance of the paddlings which seem to have had a spontaneous quality. These paddlings occurred always in the Respondent's 5th Grade classroom in front of the class at the side of Respondent's desk, and a thin narrow wooden paddle was used. The paddle was applied to the child's buttocks through his/her clothing. Paddlings never occurred in the principal's office or in the presence of any other adult. Respondent made no attempt to hide what was going on, but she admitted that some students would excitedly post "look-outs" at the classroom door, so it appears that there was a belief, at least on the children's part, that the paddlings were contrary to the School Board's or principal's stated policies. These paddlings occurred on an almost daily basis. Some children received a stroke once a week or every other day. It seldom occurred to the same child two days in a row. Keith William Reilly, now 12 years old, described the 1983-84 year's punishment for fighting as 4 strokes and for talking as less. Anthony Rossi, also now 12 years old, testified he was paddled 8 or 9 times in the 1983-84 school year and no one else was paddled more often than he. Most students got no more than two strokes on a single occasion. There is no evidence of physical or emotional harm to these students. The majority of parents contacted by School Board Investigator Robert Staelen indicated that if they had been contacted before the paddling incidents they would have or might have given permission to paddle. The two mothers who testified live corroborated this as to their own children. At least one set of parents, Mr. and Mrs. Zappi, objected to not being noti- fied before their daughter was paddled. They experienced diffi- culty getting the child to return to school after she related to them the paddling incident or incidents. There is no evidence of paddling of any child under psychological or medical treatment. During Conferences for the Record, conducted by Dr. Desmond Patrick Gray, Executive Director, Director of Personnel Control, Division of Management for the School Board of Dade County, after the School Board became aware of the paddling incidents, Respondent acknowledged that she was familiar with School Board Rule 6GX13-5D-1.O7. Normally, Dr. Gray would have recommended that Respondent be given a 10 working days' suspen- sion upon the facts of the paddlings as he understood them, but thereafter, believing that Respondent had been paddling for two school years and had been previously reprimanded for similar incidents, he recommended dismissal. Indeed, on January 29, 1982, Respondent had been formally reprimanded (P-2) by her then-principal, Robert D. Conk, for four apparently unrelated "events," the only pertinent one of which is phrased: "(1) You are frequently out of your room and students were left unsupervised. Upon your return, absences were reprimanded by your students who had misbehaved during your spanking them with a ruler or paddle." Respondent acknowledges that she received this reprimand, but states that it slipped her mind in her discussions with Dr. Gray because it was of a minor nature and the emphasis was not directed against paddling or corporal punishment, because Dr. Conk told her to forget the reprimand as an unimportant formality, and because Dr. Conk frequently sent students to her for discipline, including paddling. On or about August 22, 1984, Respondent was suspended from employment with the Dade County School Board upon grounds of incompetency, gross insubordination, and misconduct in office.
Recommendation That the School Board of Dade County enter a final order limiting the suspension of Respondent to a total of 90 working days, applying that period to the time she has already been suspended and reinstating her thereafter with any appropriate back pay and benefits. DONE and ORDERED this 22nd day of March, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 22nd day of March, 1985. COPIES FURNISHED: Thomas H. Robertson, Esquire McCormick Bldg., 3rd Floor 111 S.W. Third St. Miami, Florida 33130 William DuFresne, Esquire One Biscayne Tower, Suite 1782 Two South Biscayne Blvd. Miami, Florida 33131 Phyllis O. Douglas Esquire Dade County School Board 1410 N. E. Second Ave. Miami, Florida 33132 Dr. Leonard Britton, Superintendent Dade County Public Schools 1410 N.E. Second Ave. Miami, Florida 33132 =================================================================
