The Issue Whether the Respondent, Gladys Young-Smith (Respondent), committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, the Respondent was a teacher employed by the Miami-Dade County Public School District. She was assigned duties as a third grade elementary teacher at North Miami Elementary School on the date the matters complained of took place. The Respondent holds a Florida Educator’s Certificate (Certificate No. 147509) that is valid through June 30, 2007. On April 25, 2002, Lonell Segars (Ms. Segars) was employed at North Miami Elementary School (the school) as a school secretary. Among her duties were those associated with being the school treasurer. As school treasurer, Ms. Segars handled the processing of paperwork in order to procure school supplies. Each teacher at the school was given an allowance of sorts from which school supplies could be purchased for the classroom. There were two ways to draw on this “allowance.” A teacher could purchase supplies with her own money and seek reimbursement by submitting a receipt with the items fully described or the teacher could submit a purchase order for the supplies and process the request through the office. In either instance the amount of the purchase was then applied back against the teacher’s “allowance.” An allowance not used by a certain date was forfeited. Near the end of the allowance deadline, the Respondent presented to the school’s office and sought to obtain school supplies, but did not want to use either of the methods described above to secure the supplies. Ms. Segars attempted to resolve the issues regarding the procurement but was not successful. In a second effort to resolve the issue, Ms. Segars sought to obtain a supply list from the Respondent so that she could obtain the prices from an office supply company, obtain a check for the Respondent (to cover the items sought), and assist in the procurement of the items. Ms. Segars and the Respondent did not communicate well regarding the supply list and the prices attributable to the items. The Respondent became incensed with Ms. Segars and claimed she was “pissing her off.” The Respondent did not want to work with Ms. Segars on the procurement of the school supplies. Ms. Segars later saw Ms. Vanbeverhoudt, the assistant principal, with the Respondent in the school hallway and attempted to explain the matter to her. The Respondent left the hallway (where Segars and Vanbeverhoudt were talking) and stormed off with the procurement problem still unresolved. The Respondent entered the office of another school secretary, Ms. Wilson, followed by Ms. Segars and Ms. Vanbeverhoudt. In Ms. Wilson’s office, in full view of Ms. Wilson and Ms. Vanbeverhoudt, an altercation between Ms. Segars and the Respondent ensued. The Respondent was talking to Ms. Wilson about the difficulties with the procurement when Ms. Segars and Ms. Vanbeverhoudt entered the office. Upon seeing Ms. Segars the Respondent became irate. She mumbled that she was going to hurt Ms. Segars. Ms. Segars did not call the Respondent “dumb,” but claimed the situation (the confusion over the procurement process) was “dumb.” In clear view of both Ms. Wilson and Ms. Vanbeverhoudt, the Respondent violently punched Ms. Segars about the head and rammed her into the door jam. Ms. Segars did not do anything to provoke the attack, did not retaliate or hit the Respondent back, and did not present in any way a physical threat to the Respondent. The attack was senseless and completely uncalled for. The Respondent lost her temper and in a moment of extremely poor judgment resulted to physical violence to resolve a problem. While the Respondent may have been frustrated at the continuing issue to resolve the supply procurement, there was no immediate threat or harm to the Respondent posed by the matter. Ms. Segars is a petite, slightly built person who did not present a physical threat to the Respondent. The Respondent left the office shortly after the attack and did not respond to an “all call” over the public address system for her to report to the office. After the fact it was discovered that the Respondent left the school property without permission and without signing out as was required by school procedure. As a result of the attack, Ms. Segars left school employment and has a permanent impairment (loss of hearing and vertigo). On May 28, 2002, a conference for the record was scheduled with the Office of Professional Standards. The Respondent was afforded an opportunity to present her side of the incident in order to clarify the facts at issue. The Respondent did not offer any detail or fact to support the attack on Ms. Segars. Shortly thereafter, facing disciplinary action by the Miami-Dade County School Board, the Respondent resigned her position with the school district and retired. Prior to the incident complained of, the Respondent had enjoyed a long, favorable career with the Miami-Dade County Public Schools. She had taught at several elementary schools and had received good work evaluations. Public school teachers are held to a high standard of conduct. Violent physical outbursts are not tolerated. Such incidents significantly diminish an educator’s effectiveness. The Respondent’s conduct on April 25, 2002, impaired her ability to effectively maintain her stature as an educator within the Miami-Dade County School District. Moreover, since the Respondent never admitted her acts, never showed remorse for her behavior, and never took responsibility for her behavior, such lack of acknowledgement further demonstrates she does not appreciate the severity of her conduct or the extent to which it has impaired her credibility and effectiveness within the School District. Finally, it is determined that the Respondent’s sworn testimony as set forth in her deposition (filed in this cause as Petitioner’s Ex. 1) demonstrates a lack of truthfulness regarding the incident with Ms. Segars and is not a credible account of the events of April 25, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order suspending the Respondent’s teaching certificate and prohibiting her from seeking re-certification for a period of not less than three years. DONE AND ENTERED this 2nd day of May, 2006, in Tallahassee, Leon County, Florida. S 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 2nd day of May, 2006. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard B. Marx, Esquire Richard B. Marx and Associates Concord Building, Suite 800 66 West Flagler Street Miami, Florida 33130 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Fred J. Miller, currently holds Florida teaching certificate number 150969, covering the areas of elementary education, business education and administration, which is valid through June 30, 1992. At all times material hereto, respondent was employed as a teacher at Miami Park Elementary School in the Dade County School District. In the summer of 1990, S.L., a minor female student, was in respondent's fourth grade class at Miami Park Elementary School. On one occasion during such term, respondent observed that S.L. was not doing her school work and was instead drawing, contrary to instructions he had given earlier in the day. In response, respondent grabbed the paper upon which S.L. was drawing, crumpled it up and directed S.L. to stand in the corner. S.L. then opened the top of her desk to put her books away, and while her head was under the desk top respondent pushed the top down striking the back of S.L.'s head. Such contact apparently hurt S.L., since she then began to cry, but there was no compelling proof offered at hearing from which any reasonable conclusion could be drawn regarding the severity of the blow or any injury sustained. S.B. a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. On two occasions during such term, respondent made physical contact with S.B. The first occasion arose when S.B. and the other students in the class were lined up to go to lunch. During such time, S.B. was apparently talking and whispering to other students and respondent grabbed him by the arm, above the elbow, yanked him out of the line, and made him walk on the side of the line. S.B. averred at hearing that such action hurt and embarrassed him; however, there was no compelling proof regarding the severity of any harm or the degree of any embarrassment beyond what one would reasonably expect from having been disciplined. The second occasion arose when S.B. was apparently not doing his school work and was instead drawing. In response, respondent tore up the drawing, grabbed S.B. by the ear, pulled him up from his seat, and made him stand in the corner. Again, there was no compelling proof regarding the degree of harm, if any, occasioned by such contact, and S.B. offered no testimony that such action on respondent's part caused him to suffer any embarrassment. A.S., a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. At hearing, A.S. offered testimony regarding two occasions on which respondent made physical contact with him. The first occasion arose when A.S. was talking when he should not have been, and respondent pulled him by the ear and made him stand in the corner. There was, however, no proof at hearing that such conduct harmed or embarrassed A.S. The second occasion arose when the respondent "jacked up" A.S.; a phrase used to describe respondent grabbing the front of A.S.'s shirt and pulling him up. No proof was offered regarding the circumstances which surrounded this incident, and no showing of harm or embarrassment to A.S. In addition to the foregoing incidents, S.B. and A.S. also offered testimony regarding other occasions during the summer of 1990 when respondent made physical contact with other students in their fourth grade class. In this regard, S.B. offered testimony that respondent "snatched . . . [E.W.] . . . out of line about two times and yanked his ear too." And, A.S. offered testimony that respondent also "jacked up" other students when they misbehaved in class. There was, however, no proof offered regarding the circumstances surrounding these incidents, and no showing that such students were harmed or embarrassed by respondent's conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which finds respondent guilty of having violated the provisions of Rule 6B-1.006(3)(a), Florida Administrative Code, and thereby Section 231.28(1)(h), Florida Statutes, with regard to his conduct toward S.L.; which imposes the penalty recommended in paragraph 5 of the foregoing conclusions of law; and, which dismisses all other charges against respondent. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of February 1992. WILLIAM J. KENDRICK 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 27th day of February 1992.
Findings Of Fact Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if such an incident did in fact occur, it could not have happened until after 9:57 a.m. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983. DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 W. Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132 Mr. Donald Griesheimer Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Respondent should be dismissed or otherwise disciplined for the reasons set forth in the Miami-Dade County School Board's Amended Notice of Specific Charges.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board, Respondent, and his Supervisors The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including Gertrude K. Edlelman/Sabal Palm Elementary School (Sabal Palm), Miami Norland Senior High School (Norland), and North Miami Senior High School (North Miami). The principals of these schools have ultimate supervisory authority over all School Board employees assigned to their schools, including custodial employees. Raul Gutierrez is now, and has been for the past three years, the principal of Sabal Palm. Mr. Gutierrez succeeded Gertrude Edelman, after whom the school is now named. Mr. Gutierrez had served as an assistant principal at the school under Ms. Edelman for five years before he became the school's principal. Selma McKeller is now, and has been for the past 11 years, the head custodian at Sabal Palm, having supervisory authority over all other members of the school's custodial staff. Willie Turner is now, and has been for the past four years, the principal of Norland. Gladys Hudson was an assistant principal at Norland during the 2002-2003 school year. Among her responsibilities was to oversee the school's entire custodial staff, including the head and lead custodians. Respondent has been employed by the School Board since March of 1989. Respondent was initially hired as a custodian and assigned to Sabal Palm. In August 1998, while still assigned to Sabal Palm, Respondent was promoted to his present position, lead custodian, which is a supervisory position. Respondent remained at Sabal Palm until August 2002, when he was placed on "alternate assignment" at Norland, where he worked under the direct supervision of the school's lead custodian, Leaford Harris. In December 2002, Respondent was placed on "alternate assignment" at North Miami. The Collective Bargaining Agreement As a lead custodian employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II of the AFSCME Contract is the contract's "[r]ecognition" article. Section 3 of Article II provides as follows: The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees for just cause; and (3) the designation of the organizational structure of the MDCPS and the lines of administrative authority of MDCPS. It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; I. Contract out for goods or services; and J. Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Definitions are set forth in Article V of the AFSCME Contract. They include the following: * * * Section 17. Working Hours-- Those specified hours when employees are expected to be present and performing assigned duties. Section 18. Workday-- The total number of hours an employee is expected to be present and performing assigned duties. * * * Section 27. Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. Section 4A of Article IX of the AFSCME Contract addresses the subject of "[n]ewly-[h]ired [e]mployees." It provides as follows: Newly-hired employees in the bargaining unit (except temporary, hourly, or substitute employees) shall be considered probationary for the first three calendar months; thereafter, they shall be considered annual employees, subject to annual reappointment. During such probationary period, employees may be terminated without recourse under this Contract. If, at any time during the probationary period, the newly-hired employee's performance is considered unacceptable, the probationary employee shall be terminated. Section 13 of Article IX of the AFSCME Contract discusses the School Board's Employee Assistance Program. It provides as follows: AFSCME, Local 1184 and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME, Local 1184 and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article XI of the AFSCME Contract addresses the subject of "[d]isciplinary [a]ction." Section 1 of Article XI is entitled, "Due Process," and it provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal. A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (i.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary. The parties agree that discharge 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 action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled, "Dismissal, Suspension, Reduction-in-Grade," and it provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled, "Cause for Suspension," and it provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI describes the "[t]ypes of [s]eparation." It provides in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of four [sic] distinct types of separation. Voluntary-- . . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling ten or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- . . . . AFSCME, Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause. Layoff-- . . . . Section 6 of Article XI addresses the subject of "[p]ersonnel [f]iles," and it provides as follows: A. Pursuant to Florida Statutes, Chapter 231.291 Personnel Files - Public school system employee personnel files shall be maintained according to the following provisions: Except for materials pertaining to work performance or such other matters that may be cause for discipline, suspension, or dismissal under laws of this state, no derogatory materials relating to an employee's conduct, service, character, or personality shall be placed in the personnel file of such employee. Materials relating to work performance, discipline, suspension, or dismissal must be reduced to writing and signed by a person competent to know the facts or make the judgment. No such materials may be placed in a personnel file, unless they have been reduced to writing within 45 calendar days, exclusive of the summer vacation period, of the school system's administration becoming aware of the facts reflected in the materials. The employee shall have the right to answer any material filed hereafter in his/her personnel file and the answer, if submitted, shall be attached to the file copy. No anonymous letter or material shall be placed in an employee's personnel file. The validity of items of a derogatory nature placed in an employee's personnel file shall be subject to the grievance procedure. There shall be no statements placed in an employee's personnel file unless the employee has been given a copy. Upon request, the employee, or any person designated in writing by the employee, shall be permitted to examine the personnel file. The employee shall be permitted, conveniently, to reproduce any materials in the file, at a cost no greater tha[n] five cents per page. Such request should be made to the custodian of a personnel file, who shall permit examination of the records at reasonable times, under reasonable conditions, and under supervision of the custodian of the record. The custodian of the record shall maintain a record in the file of those persons reviewing the file each time it is reviewed. "Personnel [i]nvestigations" are the subject of Section 7 of Article XI, which provides as follows: The Board shall take steps to ascertain the identity of the complainant, prior to authorization of an investigation. No investigation of an allegation against an employee shall be made on the basis of an anonymous complaint. In the event of allegations and/or complaints being made against any employee, an investigation which may result in information being placed in the employee's personnel file shall not be concluded by the Miami-Dade County Public Schools Police (MDCPSP) or any person prior to the time that the employee receives identification of the complainant and the nature of the complaint. In all Board investigations which may lead to suspension or dismissal of an employee, only the Superintendent or his/her designee may authorize such an investigation. When a formal investigation has been authorized, all personnel involved will be advised by the MDCPSP investigator of their legal rights, and the procedures available to them for representation. Information that is not substantiated will not be used for disciplinary action against the employee. In all Board investigations resulting in discipline, the employee shall be provided with a copy of the report. With the permission of the employee, the Union shall also receive a copy. When investigatory reports are provided, said reports shall be transmitted within a timeframe consistent and harmonious with basic due process. In all cases in which the preliminary investigation is concluded, with the finding that there is no probable cause to proceed further and no disciplinary action taken or charges filed, a statement to that effect signed by the responsible investigation official shall be attached to the complaint and the complaint and all such materials shall be open, thereafter, to inspection. Where allegations have not been proven against an employee, no reprisal or punitive action shall be taken against an employee. Pertinent School Board Rules As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,1 including School Board Rules 6Gx13-4-1.08 and 6Gx13-4A-1.21. School Board Rule 6Gx13-4-1.08 is a "[g]eneral [p]ersonnel [p]olicy [s]tatement" regarding "[v]iolence in the [w]orkplace." It provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but it is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools employees have a right to work in a safe environment. Violence or the threat of violence by or against students and employees will not be tolerated. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. September 1989 Investigation In September of 1989, Respondent was the subject of an investigation conducted by what was then referred to as the School Board's Special Investigative Unit (S.I.U.). The investigation culminated in an investigative report being issued on September 27, 1989 (in S.I.U. Case No. T1684). The report was written by Detective Sergeant Miriam McNeil-Green and read as follows: Allegation: On Wednesday, 09-13-89, Steven S. Newbold was arrested at Northwest 191 Street and 37 Avenue at 11:50 p.m. for driving with a suspended license, citation #55136-IR. The above allegation was reported to central S.I.U. office on September 14, 1989, by Sergeant Rudolf, Metro-Dade Police shift commander. Mr. Henry Hortsmann, Director, Office of Professional Standards, authorized a records check on September 14, 1989. I [Detective Sergeant McNeil-Green] responded to Metro-Dade headquarters building on September 20, 1989, in reference to the above offense. However, the traffic offense was not on file. I went to the Metro-Dade justice building, traffic division and was given a copy of the printout for the arrest of Steven Spencer Newbold. A copy of the printout is attached to this report. The arraignment date will be set. While at Metro-Dade headquarters building it was discovered that Steven Newbold has a felony and misdemeanor past as follows: On 02-24-88, Steven Newbold was arrested at Northwest 22 Avenue and 90 Street, Miami, Fl. 33142, for (1) No valid drivers license; (2) Driving with license suspended; (3) Grand theft auto; (4) Possession of marijuana (11 grams). On March 16, 1988, Newbold pled guilty to possession of marijuana. Adjudication was withheld and Newbold was placed on probation for one year. On March 16, 1988, Newbold pled nolo contendere to one count of grand theft auto and was placed on one year probation. Certified copies are attached. On May 11, 1988, Steven S. Newbold was arrested at 1461 N. W. 60 Street, apt. #5, Miami, Fl. 33141 for trespassing of structure. On July 14, 1988, Newbold pled guilty and was fined $78.75. Certified copies are attached. Vault information: Steven Spencer Newbold was hired on 03-22-89 as a custodian at Sabal Palm Elementary. On his application for employment, Mr. Newbold stated he had never been arrested. Conclusion: The allegation against Steven S. Newbold is substantiated, [in that] he was arrested on September 13, 1989 for a traffic offense. He also falsified his employment application by stating he had not been arrested. On October 1, 1990, Henry Horstmann, the director in the School Board's Office of Professional Standards referred to in the investigative report, authored a memorandum concerning the report for placement in Respondent's personnel file. The memorandum read as follows: SUBJECT: DISPOSITION OF INVESTIGATIVE
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment with the School Board pursuant Article XI of the AFSCME Contract. DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2004.
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent.
Findings Of Fact Petitioner first employed Respondent, as a custodian, in late 1991. Respondent's first job was as a substitute custodian, which was a temporary assignment offering few benefits. Petitioner assigned Respondent to Sarasota High School. The substitute position is also known as a non-appointed position. On February 1, 1994, Petitioner changed Respondent's status from non-appointed to appointed. Respondent successfully completed the six-month probationary period. Two years later, Petitioner transferred Respondent from Sarasota High School to the Oak Park School. This transfer resulted from the settlement of a grievance proceeding concerning a matter unrelated to the issues in this case. At the end of the 1996-97 school year, Petitioner transferred Respondent to Sarasota High School. By this time, Respondent had sufficient seniority to be able to bid for a job at a school of his choosing, and Respondent desired to work at Sarasota High School. Respondent began to experience serious job-related problems during the 1997-98 school year. He did a poor job cleaning the classrooms and other assigned areas. His supervisor estimated that Respondent would complete about 60 percent of his assignment. Frequently, Respondent was a "no call, no show," meaning that he neither appeared for work when scheduled nor called in advance of his nonappearance. On at least one occasion in December 1997, Respondent left work early, without permission, so that his supervisor had to have another custodian finish Respondent's job. From the 1997-98 school year until Respondent's departure from employment with Petitioner, he was repeatedly late, absent, or early in departing. On the many occasions on which Respondent was a "no call, no show," Petitioner was required to assign Respondent's work to another custodian working the same shift. This custodian would have to complete his or her own work and Respondent's work in the same shift. This repeated situation undermined the morale of Respondent's coworkers, who resented the extra work for which they received no additional compensation and their inability to do a good job, in the available time, on their assignment and Respondent's assignment. By letter dated April 16, 1998, Petitioner suspended Respondent for one day without pay due to his insubordination. After receiving this discipline, Respondent continued to require reminders from Petitioner about Petitioner's policies for requesting leave and documenting sick leave. Respondent's repeated failure to comply with these policies constituted insubordination. In January 1999, another custodian was serving as acting head custodian during the night shift that Respondent worked. A vendor representative visited the high school to examine some equipment. When the acting head custodian asked Respondent to show the representative a piece of equipment normally used by Respondent, Respondent refused. Angry at the persistence of the acting head custodian in repeating the request, Respondent then attacked the acting head custodian, grasping the man's neck so hard as to leave marks. Respondent was again disciplined for his insubordination. By letter dated March 17, 1999, Petitioner suspended Respondent for three days without pay. On March 3, 1999, Petitioner transferred Respondent from Sarasota High School to "Regional," which refers to an area encompassing several schools. During the summer of 1999, Respondent worked at the Sarasota County Technical Institute. On July 13, 1999, the senior head custodian could not find Respondent, who had already displayed the same work habits and attendance problems that had characterized his earlier employment with Petitioner. When the head custodian finally found Respondent, the head custodian accused Respondent of shirking his work. The record does not permit a finding as to whether Respondent was really performing his work. However, about an hour after giving Respondent a new assignment of cleaning some windows, the senior head custodian checked up on Respondent. Finding him productively at work, the senior head custodian complimented Respondent by saying, "Good job." Respondent replied, "You don't know who you are messing with." Respondent left the job early, without permission. The next day, Respondent called the regional manager for the Facilities Department, who is the supervisor of the senior head custodians. He warned her that if she sent him back to Sarasota County Technical Institute, he might do something bad to the senior head custodian. The regional manager immediately reassigned Respondent so that he could work at Riverview High School. After initially proposing to terminate Respondent, by letter dated August 18, 1999, Petitioner suspended Respondent for one day with pay for insubordination. As the 1999-00 school year proceeded, Respondent continued his pattern of "no call, no show," tardy appearances, and early departures. For example, from October 11, 1999, through March 24, 2000, Respondent was "no call, no show" on 11 occasions. The other custodians increasingly resented Respondent's unreliability because they had to perform Respondent's work without additional pay. Evidently learning of the dissatisfaction of one custodian, Respondent angrily confronted her by getting in her face, shaking his finger at her, and warning her that if she did not have anything good to say, she should not say anything at all. Despite the exhortations of his supervisors and coworkers, Respondent continued to disregard Petitioner's attendance and notification policies. Finally, on March 24, 2000, Respondent showed up with 15 minutes left in the eight-hour shift that he had specifically requested the night before and explained that he had had car trouble. He did not offer an explanation for why he had failed to call his supervisors and Petitioner's district office to notify them of this claimed problem. This incident effectively ended Respondent's employment with Petitioner. By letter dated June 19, 2000, Petitioner terminated Respondent's employment, effective July 12, 2000, due to insubordination. During his employment with Petitioner, Respondent repeatedly disregarded Respondent's policies regarding notification and documentation of leave, repeatedly disregarded the reasonable requests of his supervisors that he comply with these policies, repeatedly ignored the reasonable requests of his supervisors to perform specific assignments in a competent manner, and repeatedly abused coworkers, to the point of grasping one by the throat. In context, these behaviors by Respondent constituted gross insubordination.
Recommendation It is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent's employment with the school board effective July 12, 2000. DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 18th day of September, 2000. COPIES FURNISHED: Dr. David Bennett, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231 Honorable Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Charles D. Bailey, III Bowman George 22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237 Wayne Goff 107 20th Street West Palmetto, Florida 34221
The Issue The issue in this case is whether a district school board is entitled to suspend for 30 workdays, without pay, a paraprofessional for just cause based upon the allegation that he kicked an autistic student and struck the student with an umbrella.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Robert Blanc ("Blanc") had worked in the Miami-Dade County Public School System for more than 20 years. During the 2006-07 school year, and at all times relevant to this case, Blanc was employed as a therapeutic paraprofessional at South Miami Senior High School, where he provided educational services to students with disabilities. The alleged incident giving rise to this case occurred on Friday, October 12, 2007. The School Board alleges that on that date, at approximately 2:30 p.m., Blanc kicked an autistic student named C. R. in the leg, and then used his umbrella to strike C. R. on the arm. This allegation is based on the accusations of two purported eyewitness (hereafter, collectively, the "Accusers")——Julie Ann Rodriguez and Nemy Aimable——both of whom were (and as of the final hearing continued to be) education paraprofessionals working at South Miami Senior High School. Blanc consistently has maintained his innocence, denying that he kicked or struck C. R. as charged. Moreover, he claims——and testified at hearing——that C. R. kicked him, and that he (Blanc) then used verbal commands to redirect C. R. and get the student to sit down, thereby protecting himself and others. This case boils down to a credibility contest between the Accusers and Blanc. If the Accusers' account is truthful and accurate, then Blanc is guilty of at least one of the charges against him and should be disciplined. On the other hand, if Blanc's account is believed, then he is not guilty of misconduct. Given that the credibility determination drives the outcome, the undersigned will first, as a predicate to evaluating the evidence, set forth the competing accounts of the incident in question, and then make determinations, to the extent possible, as to what might have happened. It is important to note, however, that unless otherwise specifically stated, the findings in the next two sections merely report what the respective witnesses said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place on October 12, 2007. The Accusers' Story While the respective accounts of Ms. Rodriguez and Mr. Aimable concerning the incident in question differ as to some nontrivial details, they agree on the big picture. Their story begins at about 2:30 on a Friday afternoon. The Accusers were on "bus duty," as were other staff members, as was Blanc. Ms. Rodriguez and Mr. Aimable were sitting next to one another on a wall or ledge overlooking a field of grass that lay between them and the road where a line a buses stood waiting for children to clamber aboard. This was a busy time of day, and many people were moving about the bus loading area. Sitting on the long wall with the Accusers were a number of other school employees——at least 25 teachers and aides in all, maybe more, Ms. Rodriguez recalled (and the undersigned finds). Blanc, however, was not sitting on the wall; he was standing on the grass, among the students. Ms. Rodriguez and Mr. Aimable were engaged in conversation, when suddenly each noticed Blanc——who was located about 10 feet in front of them——kick C. R. on the leg and strike the student with an umbrella across the upper body. Ms. Rodriguez recalls that C. R. was sitting down on a ledge, near other faculty members, when Blanc attacked. Mr. Aimable, in contrast, remembers C. R. standing in the grass when Blanc struck. According to Ms. Rodriguez, Blanc yelled at C. R., threatening to "beat up" the student if C. R. ever hit Blanc again. Mr. Aimable does not recall Blanc making such a threat, although he vaguely remembers Blanc uttering something about not letting C. R. get away with hitting him. By their own admissions, which are accepted as credible and found as fact, neither of the Accusers saw anything that transpired between Blanc and C. R. before the alleged battery. The altercation upset Ms. Rodriguez, and she began to cry. She and Mr. Aimable continued talking——but not about the battery they had just witnessed. It is undisputed that neither of them made any attempt to protect C. R. or other students from Blanc; nor did they examine C. R. for injuries or offer any assistance.1 No one else did either. Apparently none of the other staff members on the scene saw Blanc attack C. R., and the Accusers (it is found, again based on undisputed evidence) did not mention to anyone sitting near them on the wall the remarkable event they had seen. About ten minutes later, the Accusers rose from the wall and walked to the office, where they would "sign out" for the day. Blanc's Testimony Blanc, who was on bus duty the afternoon of Friday, October 12, 2007, was standing in the middle of the grassy area near the buses, chatting with another teacher, when he felt a sharp pain in his lower right leg. C. R. had just kicked him hard, without warning, and was now pressing very close, invading his personal space. C. R. is a special education student who has been diagnosed with autism. He is reportedly nonverbal. (C. R. did not appear at the final hearing.) It is an undisputed fact that C. R. has a history of violent and assaultive behavior: he has injured teachers and once broke a bus driver's nose; in addition, he hurt a student by striking her in the stomach. Also material are the undisputed facts that C. R. is an adult- sized male who, at the time of the incident, was 17 years old, stood approximately six feet tall, and weighed about 200 pounds. Blanc, who is blind in one eye, was taken by surprise when C. R. attacked him. Though his hands were full——Blanc was holding a collapsible umbrella in one hand and a coffee mug in the other——he raised his arms to protect his face, yelled at C. R. to sit down, and began backing C. R. toward the ledge, where he could be seated. This approach worked. C. R. sat down, and the situation was defused. At this point, Isidro Alfonso, who is C. R.'s one-on-one paraprofessional, took charge of C. R. Blanc immediately reported to his supervisor, Yvette Williams, that C. R. had kicked him. Ms. Williams was (and as of the final hearing continued to be) a special education teacher at South Miami Senior High School. She, too, was on bus duty that day but had arrived on the scene after the incident took place. Blanc told Ms. Williams that he was going home to put ice on his ankle, which hurt. Ms. Williams saw no need to report the incident because C. R. was known to lash out at teachers and others. Blanc, for his part, declined to make a formal report out of concern for Mr. Alfonso, who, he felt certain, would be disciplined for inattentiveness if the matter were brought to the attention of the administration. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict that both cannot simultaneously be considered fully accurate. The fact-finder's dilemma is that neither account——the Accusers' on the one hand, Blanc's on the other——is inherently incredible, impossible, or patently a fabrication; neither, in short, can be readily or easily dismissed as false. Of course, it is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true. As the fact-finder, the undersigned therefore must consider how likely it is that the incident took place as described by the respective witnesses. In evaluating the credibility of the witnesses who testified against Blanc, the undersigned has considered the relationship that existed between Ms. Rodriguez and Mr. Aimable, as well as their post-incident conduct. As mentioned above, after the incident, the Accusers walked to the office together, arriving at about 2:45 p.m. At some point, they agreed to report what they had observed, namely that Blanc had physically attacked a disabled student. Yet, once the two were in the office, they decided that it was "too busy" there——and so, rather than waiting to be seen, they left after at most ten minutes, without telling anyone in authority that Blanc had (at least as they understood the situation) committed a battery on a minor. This impatience seems a bit strange, given the circumstances. The undersigned supposes that a reasonable school employee, having witnessed an incident as serious as the one the Accusers claim to have seen, would have been insistent about speaking to someone in the administration about it. That the Accusers lacked such persistence does not completely discredit them, but it does raise doubts about their veracity. Leaving the office, Ms. Rodriguez and Mr. Aimable walked to the parking lot, got into Ms. Rodriguez's car, and drove off the premises together, around three o'clock. This was not unusual for them: they carpooled to work. Ms. Rodriguez and Mr. Aimable were not, in other words, merely co-workers; they were co-workers who spent off-duty time together. The Accusers made two stops on the way home that day, to pick up Ms. Rodriguez's children from their respective schools. Ms. Rodriguez then dropped off Mr. Aimable at his place. By that time, it was about 3:35 p.m. At home, Mr. Aimable continued to stew about the incident, he says, and after about an hour, around 4:30, he called Ms. Rodriguez to ask that she pick him up and return with him to the school to report the matter. According to Mr. Aimable, Ms. Rodriguez assented; she arrived at his residence around 4:50 p.m. From there, they proceeded to the school, where they eventually found an assistant principal, Ms. Tudor. It was now around 5:30 Friday evening, some three hours after the alleged event. Each of the Accusers prepared for Ms. Tudor a written statement about the incident. According to Mr. Aimable, this process took until about 6:45 p.m., at which time the Accusers went home. Later Friday night, at a homecoming dance, Ms. Tudor notified the school's principal, Gilberto Bonce, about the complaint made earlier against Blanc; she also let him know that the Accusers' statements were on his desk. Mr. Bonce took no action that night, however, nor did he do anything in reference to alleged incident over the weekend or during the following Monday, October 15. Curiously, in view of the possibility (if the Accusers were believed) that one of his staff might have committed a crime against a student, Mr. Bonce did not report the matter to the school police until Tuesday, October 16, 2007. All in all, the circumstances——especially the following——give the undersigned reasons to discount the Accusers' testimonies. The failure of Ms. Rodriguez and Mr. Aimable to take any immediate action at the scene of the incident not only is inconsistent with their claim to have seen Blanc beat C. R., but also it ensured that there would be no better evidence than their eyewitness accounts of a sudden and unexpected, fast-moving event whose duration can be measured in seconds. Had the Accusers gone to the aid of C. R., as a reasonable, responsible adult in their position should have done, they could have examined him for injuries. If Blanc had given C. R. a hard kick in the leg and struck him with an umbrella, the blows likely would have left at least a red mark somewhere on the student's body. Mr. Aimable, for example, could have studied such a mark or welt, not for a moment, but long enough to form a firm, lasting impression, one less subject to misinterpretation or distortion than the mental image left behind after catching a fleeting glimpse of activity that occurred unexpectedly in his field of vision, while focused on something else. Testimony about such an injury would have been compelling. But there was none. The Accusers' decision not to report the incident immediately because it was too "busy" in the office is inconsistent with the gravity of the alleged misconduct. But more than that, because Ms. Rodriguez and Mr. Aimable left the premises together before telling anyone about what they claim they saw, the two had ample opportunity to talk privately for a couple of hours——plenty of time to "get their story straight." One does not need to believe that the Accusers consciously intended to harm Blanc to realize that their discussing the incident (which they must have done——after all, they returned to the school on a Friday evening to make a report about it) likely helped them reach a consensus about what had happened, potentially corrupting their memories in the process. The Accusers' respective accounts are not, at bottom, independent accounts, and may, in fact, be dependent on one another.2 Indeed, in this case, one eyewitness might have been more persuasive than these two. Finally, it is significant that, while the incident took place in full view of more than two dozen responsible adults, not one of them intervened——and no one (besides the Accusers) even saw the altercation. To be sure, these facts cut both ways: nobody saw C. R. kick Blanc or intervened to help him either. Nevertheless, as between the competing scenarios, it seems more likely that C. R. was the attacker, rather than the other way around, for at least two reasons. First, C. R. had a history of assaultive behavior whereas Blanc did not. Second, if Blanc were inclined to hit C. R., he likely would have refrained from doing so in broad daylight before an audience of his peers. C. R., on the other hand, being severely autistic and physically aggressive in nature, would not likely have been deterred by the presence of witnesses. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Blanc struck C. R. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Blanc described it; in other words, relative to Accusers' account, Blanc's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 12 through 15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Blanc committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Blanc is guilty of the offense of violating the School Board's policy against violence and threatening behavior in the workplace. The greater weight of the evidence fails to establish that Blanc is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Blanc is guilty of violating the School Board's Code of Ethics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Blanc of all charges brought against him in this proceeding and awarding him the back pay, plus benefits if any, which accrued while he served the previously imposed suspension of 30 workdays. DONE AND ENTERED this 6th day of January, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 6th day of January, 2009.
The Issue Whether the Respondent, Alan T. Polite (Respondent), committed the violations alleged and should be disciplined as set forth in the Notice of Specific Charges filed on December 21, 2004.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was the state entity charged with the responsibility of operating and supervising the public schools within the Miami-Dade County, Florida School District. Such responsibility includes the personnel matters such as the one at hand. At all times material to the allegations of this case, the Respondent was employed by the School District as a custodian assigned to work at Miami Park Elementary School. On or about December 11, 2003, the Respondent attended a staff meeting conducted at Miami Park Elementary School. At that time the Petitioner’s “Drug-Free Workplace Policy” was distributed and reviewed. The Respondent does not deny attending the meeting and does not dispute the existence of the Petitioner’s policy regarding drugs and alcohol in the workplace. On February 20, 2003, after the Respondent’s supervisor observed him behaving in an unusual manner, the Respondent was asked to submit to a drug and alcohol test. The Respondent was uncharacteristically disruptive, loud, and confrontational. When asked to take a drug/alcohol test, the Respondent refused unless the supervisor also agreed to submit himself for testing. The Respondent was called to the office and provided with the pertinent forms for drug/alcohol testing. The Respondent refused to acknowledge the forms, refused to sign the forms, and refused to submit himself to the testing. After the refusal was deemed a positive result, the Respondent was prohibited from returning to work until he complied with the return-to-duty requirements of the “Drug- Free Workplace Policy.” The procedures and directives followed the School District policy. On February 28, 2003, a conference-for-the-record (CFR) was conducted to address the refusal to take the drug/alcohol test. At that time the Respondent was given a referral to the Employee Assistance Program (EAP) and was informed that his progress and participation with the EAP would be monitored by the Petitioner’s Office of Professional Standards (OPS). The OPS is responsible for tracking employees so that the Petitioner can be assured that the “Drug-Free Workplace Policy” is being followed. On or about March 19, 2003, the Respondent entered the EAP. On April 10, 2003, the Respondent agreed to subject to unannounced testing for drug/alcohol use. For 60 months following his return to duty, the Respondent agreed to submit to testing on a random basis. It was anticipated that there would be no fewer than six screenings within the first 12 months. Based upon the foregoing, the Respondent was granted permission to return to work and did so on or about April 11, 2003. On June 8, 2004, the Respondent was selected for a random, unannounced follow-up test. The Respondent presented for testing at the prescribed location (an approved laboratory). The alcohol test administered to Respondent produced a positive result. The Respondent does not dispute the result of the test. The Respondent did not dispute that a consumption of alcohol caused the result. On June 22, 2004, another CFR was conducted in the OPS to review the test result with Respondent. At that time, based upon a complete review of the Respondent’s work record, the OPS recommended disciplinary action be taken against the Respondent for a second violation of the “Drug-Free Workplace Policy.” There is no allegation that the Respondent consumed alcohol while on the job at Miami Park Elementary School on June 8, 2004. There is no allegation that on June 8, 2004, the Respondent exhibited any outward sign that he was performing his duties under the influence of alcohol. The Respondent attends church at the Friendship Missionary Baptist Church. The Respondent makes meaningful contributions to the church and is perceived as a sober role model among the congregants. If the Respondent demonstrates he can remain sober for a period of five years, and show appropriate work history for that time frame, he may be eligible to be rehired by the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be terminated from his employment with the School District. The suspension without pay must be sustained. S DONE AND ENTERED this 27th day of April, 2005, 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 27th day of April, 2005. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Pamela Young-Chance, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Alan T. Polite 827 Northwest 118 Street Miami, Florida 33168
The Issue Whether there is just cause to terminate the Respondent, Ronnie Bell (Respondent), from his employment with the Petitioner, Miami-Dade County School Board (Petitioner or School Board).
Findings Of Fact The Petitioner is the authorized entity charged with the responsibility to operate, control and supervise the public schools within the Miami-Dade County school district. Such authority includes the discipline of employees of the School Board. At all times material to the allegations of this case, the Respondent was an employee of the School Board. As an employee of the School Board, the Respondent was subject to the laws, rules, and terms of the union contract pertinent to employment with the Petitioner. Nick JacAngelo is the principal of Miami Coral Park Senior High School. Mr. JacAngelo was directly responsible for the employees at the school and personally knows the Respondent. The Respondent began work at Miami Coral Park Senior High School on October 11, 2004. Employed as a custodian at the school, the Respondent was responsible for cleaning the areas assigned to him. According to Mr. JacAngelo, it came to his attention that the Respondent’s work area was not being properly cleaned and maintained. On November 19, 2004, Mr. JacAngelo informed the Respondent that his work was substandard and unacceptable. Mr. JacAngelo informed the Respondent that his work would need to improve. Additionally, the Respondent was advised as to the standard of work that would be required and expected of him in fulfilling his custodial responsibilities including job attendance. A second conference was conducted with the Respondent on December 7, 2004, to again reiterate the duties and expectations for him. The Respondent did not improve his job performance. In addition to his failure to maintain his assigned area, the Respondent was excessively absent from the work site. On January 13, 2005, the Respondent was again informed of a need to improve his job attendance and work performance. Moreover, the Respondent was advised that he could not leave the work site without authorization prior to the termination of his workday. It was expected that the Respondent perform his duties and attend to his assigned area for the entire workday. The Respondent’s work performance and attendance did not improve. On January 28, 2005, the Respondent was cited for poor job performance and insubordination in his continued refusal to improve his effort. On February 14, 2005, Mr. JacAngelo met with the Respondent to address his insubordination, defiance of authority, failure to complete assigned areas of custodial responsibility, and his unauthorized departure from the work site. Because the Respondent wanted to have his union representative present during the discussion the meeting was rescheduled. The parties met on February 15, 2005, to review the items noted above. At that time, the Respondent was reminded that his workday departure time was 11:30 p.m. He was to present for work at 2:00 p.m., take no more than half an hour break for his meal, and remain onsite the entire time. The Respondent’s work performance did not improve over time. On May 12, 2005, he was observed to be in his vehicle the majority of the work shift. He did not perform his work assignment and made no explanation for his failure to clean his area. This incident was memorialized in a memorandum dated May 18, 2005. As to this and other previous incidents, the Respondent did not deny the conduct complained. Based upon the Respondent’s failure to improve, his continued poor work performance, his numerous opportunities to correct the deficiencies, and his insubordination, Mr. JacAngelo recommended that the Respondent be terminated from his employment with the school district. Mr. JacAngelo had attempted verbal counseling, written memorandums, and official conferences with the Respondent. None of the efforts to remediate Respondent’s work performance proved successful. Mr. Carrera is the principal at South Hialeah Elementary School. Mr. Carrera was the Respondent’s supervisor at a work assignment prior to his reassignment to Miami Coral Park Senior High School. According to Mr. Carrera, the Respondent constantly left his work site early, failed to clean his assigned area, and admitted to stealing a police surveillance camera (there had been 70 cases of theft in the area the Respondent was responsible for so the police set up a camera). In short, the Respondent’s work performance at South Hialeah Elementary School was unacceptable. The Respondent was warned during his tenure at South Hialeah Elementary School that continued failure to perform his work appropriately would lead to disciplinary action.
Recommendation 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 dismissing the Respondent from his employment with the school district. S DONE AND ENTERED this 5th day of June, 2006, 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 5th day of June, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronnie R. Bell 16220 Northwest 28th Court Miami, Florida 33054 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
