The Issue The issue is whether Petitioner has just cause to place Respondent, a classroom teacher, on administrative leave without pay from November 20, 2013, through the remainder of the 2013- 2014 school year due to Respondent’s excessive absenteeism, as alleged in the December 19, 2013, Statement of Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at PSLHS, a public school in St. Lucie County, Florida. Respondent has been employed by the District for approximately 20 years. Respondent has a professional services contract pursuant to section 1012.33. As a classroom teacher, Respondent is charged with instructing high school students. Regular attendance is considered by Petitioner to be an essential function of the position of classroom teacher. Pursuant to Board Policy 6.549(1)(a), Respondent was entitled to four days of sick leave as of the first day of employment of each school year and thereafter earned one sick day for each month of employment, for a maximum of ten sick days per school year. 2012-2013 School Year During the 2012-2013 fiscal year, Respondent was assigned to teach intensive math classes to students who struggle to pass required state exams required for graduation. Hargadine, in coordination with Petitioner’s Human Resources Department, directed Assistant Principal April Rogers (Rogers) to meet with Respondent on October 2, 2012, to address Respondent’s pattern of absenteeism and the impact it was having on students, and to explore the possibility of accommodations if his frequent absences were caused by a health condition. At least one student asked to be removed from Respondent’s class due to the frequency of Respondent’s absences. As directed, on October 2, 2012, Rogers met with Respondent and discussed Petitioner’s concerns that Respondent’s absences resulted in his students missing math instruction for 39 percent of their scheduled classes. Respondent was notified that he had already exhausted his available sick leave and he had not properly filled out leave requests in a timely manner. During this meeting, Respondent acknowledged that his absences had a negative impact on students. This conference was memorialized in a Summary of Conference dated October 2, 2012, issued to Respondent from Rogers. After the October 2, 2012, meeting, Respondent was also absent on October 16 through 19, 2012. On October 23, 2012, Rogers issued a Letter of Concern to Respondent detailing his continued excessive absenteeism and failure to timely request leave. The letter advised that Respondent’s absenteeism amounted to 17 of 42 instructional days and equated to 40 percent of lost instructional time for Respondent’s students. This letter reiterated that Respondent’s absences directly affect his students’ educational success. In addition to Respondent disrupting the continuity of the classroom by failing to attend work, Respondent also failed to supply adequate lesson plans and/or provide for student instruction while he took unapproved leave. On several occasions, Hargadine or her assistant principal had to create or add to the lesson plans to enable a substitute to teach Respondent’s classes. Respondent’s absenteeism and lack of proper notice of his absences resulted in his students being “taught” by individuals who did not have a college degree in mathematics, or even education, as some of these individuals were substitutes (who only need a high school diploma), para-educators, and even clerical workers. When staff members were required to provide coverage for Respondent’s classes, it negatively impacted both students and co-workers. For example, if a clerical worker or para-educator was called to provide coverage for Respondent’s classes, their own work would have to wait and they would not be able to complete their own specific job duties in order to ensure coverage for Respondent’s students. After receiving the October 23, 2012, Letter of Concern, Respondent was also absent on October 31, November 1, November 2, November 5, and November 6, 2012. As the assistant superintendent for Human Resources, Ranew assists site-based administrators (principals and assistant principals) concerning staff discipline and adherence to policies and procedures. Rogers requested Ranew’s assistance in addressing Respondent’s absenteeism. On November 6, 2012, Ranew issued a letter to Respondent regarding his excessive absenteeism. This letter from Ranew reminded Respondent of the importance of him submitting leave requests because his school would not know of his absence even if he properly requested a substitute teacher using the AESOP (computerized) system. By this letter, Ranew also attempted to initiate the “interactive process” required by the Americans with Disabilities Act (ADA). Although Respondent had not identified himself as a “qualified individual with a disability” within the meaning of the ADA, his excessive absenteeism suggested that he might need an accommodation if his absenteeism was being caused by a medical condition. The November 6 letter stated, “to the extent that your absenteeism is being caused by medical condition, the District may be agreeable to allowing you to take a leave [of absence] to accommodate such a condition, if that would help. In the event you realize that you are unable to regularly be at work due to a medical condition, you should consider promptly requesting an extended leave of absence (e.g., for this semester or the school year), and the District would be willing to consider such a request.” To determine Respondent’s potential eligibility for an accommodation pursuant to the ADA, Ranew specifically requested that Respondent’s doctor provide documentation clarifying: “a) any specific condition/impairment that Respondent has, as well as the cause; b) any restrictions/limitations on Respondent’s work duties as a teacher; c) the expected duration for each limitation or whether it is permanent; d) whether the condition is controllable with the use of medication, and if yes: what is the mitigating effect of this medication; and whether Respondent could fully perform his job duties, with the aid of such medication.” In response to Ranew’s letter, Respondent provided the District with a doctor’s note from Dr. Kenneth Palestrant dated November 7, 2012, stating that the majority of Respondent’s visits to the clinics occur between the months of January through May and September through December (effectively during the calendar school year) and speculated that Respondent “may” be exposed to allergens in the school building or in his classroom. Dr. Palestrant explained that Respondent was being treated with antibiotics and allergy medications and recommended Respondent receive an allergy test from an allergist to identify the specific allergens. Dr. Palestrant found that other than the potential environmental exposure to an allergen, he found “no reason [Respondent] cannot perform his full duties as a school teacher as he has no impairment and the medications he has been given have no mitigating effect upon his performance.” After receiving Dr. Palestrant’s November 7, 2012, note, and after receiving an e-mail from Respondent in which he wondered if something in his classroom might be causing his medical condition, Ranew asked Sanders to inspect Respondent’s classroom. Sanders’ job duties would require him to facilitate any remedial action with regard to Respondent’s classroom, should one be needed. In response to this request, Respondent’s classroom was inspected but nothing of concern was discovered within the room. Nonetheless, the classroom was sanitized using two methods: with an ozone machine to kill bacteria and other germs, including mold, and also with a fogger using disinfectant that kills microorganisms, bacteria, and mold, as a precaution. On November 15, 2012, Respondent sent an e-mail to Ranew, informing her that he was “being evaluated by an Allergist, and will be setting up a colonoscopy per doctor’s orders Tuesday, [November 20, 2012].” On November 15, 2012, Ranew sent an e-mail to Respondent requesting that he provide her with an allergist report when complete. On November 16, 2012, Respondent sent an e-mail to Ranew in which he discussed beginning to take a new allergy medicine, and promised to fax the allergist report to her. Ranew issued a letter to Respondent dated December 21, 2012, advising him that she had yet to receive an allergist report, again requesting such a report or medical clarification. Ranew’s December 21, 2012, letter also reminded Respondent that regular, consistent, punctual attendance, and working a full assigned workday are essential functions of his position as a classroom teacher. Although Respondent did not request leave under the Family and Medical Leave Act (FMLA), when he failed to provide the requested allergist report five weeks after Ranew requested it, and Respondent continued his pattern of excessive absenteeism, the District advised that it intended to designate his absences as FMLA-qualifying. Ranew’s December 21, 2012, letter to Respondent again requested clarification from Respondent’s doctor/allergist, with a focus on “whether there is a modification or adjustment to the work environment that will enable you to perform the essential functions of [your] position (classroom teacher).” Respondent was told, “[i]n the event that you believe that something such as trees, grass, or something else near your current classroom/school may be causing your condition, which has resulted in many absences, the [School] District is willing to consider a request to transfer you to another location.” Notably, Respondent did not provide any information from a health care provider which suggested any work modification would enable him to perform the essential functions of his job, nor did he take advantage of Petitioner’s offer of a transfer to another location. In response, Respondent emailed Ranew on December 29, 2012, advising that his allergy test would be conducted on January 3, 2013, and he would provide the results to her as soon as he received them. Respondent also expressed interest in obtaining information regarding short-term disability leave. On January 8, 2013, Ranew advised Respondent that if he desired to take leave in connection with his private insurance company’s short-term disability policy, she requested that he advise her “as soon as possible as the [School] District may be able to accommodate you with an extended leave.” There is no evidence that Respondent pursued Ranew’s offer for an accommodation in connection with short-term disability. By letter dated January 8, 2013, Ranew advised Respondent that she still had not received a copy of his allergist’s report, and she “had been trying to accommodate [Respondent], but it is difficult to do when the information [the School District] need[s] is still not provided.” Ranew again reminded Respondent that his students needed continuity in the classroom and, if he was unable to provide that, other arrangements would need to be made for the upcoming semester. Respondent provided Ranew with an allergist report dated January 18, 2013. The report explained that Respondent tested positive for multiple allergens, and recommended treatments, including immunotherapy (allergy injections), prescribed medications (nasal sprays), and surgery (balloon sinuplasty). Respondent’s allergist identified Respondent being allergic to 42 antigens, including cats, dogs, various grasses, weeds, trees, dust mites and cockroaches, and mold. Respondent’s allergist recommended Respondent undergo surgery, and Petitioner permitted Respondent to take FMLA leave for such surgery. Respondent was also permitted to intermittently use all remaining FMLA leave available to him, which he exhausted and which expired on March 28, 2013, due to the conclusion of his FMLA designated 12-month period. In addition to utilizing all FMLA leave available, the District also provided an additional 21 days of unpaid leave during the remainder of the 2012-2013 school year to Respondent, which was above and beyond his allotted sick leave, as well as above and beyond the 60 days of FMLA leave to which he was entitled. During the 2012-2013 school year, Respondent was absent 89 out of 191 possible work days, which accounts for an absenteeism rate of 48 percent. During the 2012-2013 school year, Respondent only worked 772.50 hours. Although Petitioner designated additional unpaid days as FMLA, Respondent was not eligible for additional FMLA leave beginning in March 2013 through March 2014 because he had not worked the requisite number of hours in the preceding 12- month period to be eligible for FMLA leave. 2013-2014 School Year On August 9, 2013, prior to the beginning of the 2013- 2014 school year, Ranew sent a letter to Respondent regarding his excessive absenteeism; explaining that his regular attendance was expected during the upcoming 2013-2014 school year; that his students need continuity in the classroom and if he was unable to provide that continuity, that other arrangements needed to be made for the next school year; that he should not expect to be automatically extended any additional unpaid leave during the 2013-2014 school year; and he would only receive the sick leave to which he was already entitled. Ranew advised Respondent that when he returned for work at the beginning of the 2013-2014 school year he would have four days of permitted sick leave advanced to him, and would accrue one additional day at the end of each month from August through February. In this letter, Ranew also told Respondent that it was her understanding that the sinus surgery that he underwent was part of his treatment plan to resolve the sinus and allergy issues which seriously impacted his attendance (during the 2012- 2013 school year) and that his chronic sinusitis was expected to improve post operatively. Respondent did not challenge or correct Ranew’s understanding on these issues and did not indicate that additional absences were anticipated. Ranew had serious concerns about the lack of consistent instruction for Respondent’s students due to Respondent’s absenteeism. Only 11 of Respondent’s 94 students passed the standardized math examination required for graduation in the 2012-2013 school year, which is approximately a 12 percent pass rate. This was significantly lower than the 50 percent pass rate of Respondent’s colleagues who also taught the same type of “struggling” math students. In order to minimize the potential disruption to students caused by excessive absenteeism, Respondent was assigned to teach accounting classes for the new school year which are not courses required for graduation. Respondent was also assigned to a different classroom, in a different building, for the 2013-2014 school year. As of October 3, 2013, Respondent was absent on August 27, 28, 29, 30, and September 5, 9, 20, 23, 25, 26, and October 2, 2013, well in excess of the sick leave that he was permitted to take in accordance with Board policy. By letter dated October 3, 2013, Ms. Ranew wrote to Respondent advising him that his pattern of absenteeism has a direct negative impact on an orderly learning environment and referring to her August 9 correspondence wherein she directed Respondent to advise the District if he needed leave above and beyond the sick days that he was permitted to take. Ranew advised Respondent that he had not provided the requested medical documentation that would support that he had a medical condition necessitating leave from his job, but that the District was continuing its attempt to engage Respondent in an interactive process concerning his medical condition, and again requested documentation from Respondent’s doctor addressing his recent absences and his current condition. In response to Ranew’s October 3, 2013, letter, Respondent submitted a doctor’s note dated October 9, 2013, which advised that Respondent’s condition “can be treated with nasal sprays and intermittent antibiotics” but raised the potential for future treatment to include additional surgical procedure(s). Importantly, the doctor’s note clearly explained that Respondent “can perform as a teacher with [his medical conditions], though he may notice hearing loss changes whenever he has middle ear fluid.” The October 9, 2013, doctor’s note Respondent submitted accounted for four of his absences in August and two of his absences in September, but failed to address the other eight absences which he incurred during September and October 2013. Even after receiving Ms. Ranew’s October 3, 2013, letter, Respondent was absent on October 9, 21, and 22, 2013. As of October 24, 2013, Respondent was absent 14 days out of 46 instructional days for the 2013-2014 school year. Ranew worked with Yost in the decision to recommend to the Board that Respondent be placed on administrative leave without pay. The basis for that recommendation was Respondent’s excessive absenteeism and failure to follow protocol for sick leave. By letter dated October 24, 2013, Yost advised Respondent that she was recommending his placement on a leave of absence specifically because of his continual excessive absenteeism, which had been a constant disruption to the classroom and directly impacted an orderly, continuous learning environment for his students. Yost believed that recommending Respondent be placed on leave without pay was not disciplinary in nature, but rather done to provide him an accommodation to resolve any issues which had caused his excessive absenteeism. On October 24, 2013, Yost placed Respondent on “home assignment” with pay through November 19, 2013, at which time the Board voted to accept Yost’s recommendation to place Respondent on leave without pay for the remainder of the school year. The Charges Against Respondent In its Statement of Charges in Support of the Placement on Administrative Leave Without Pay filed on December 19, 2013, the District advanced four theories for Respondent’s leave without pay: incompetency, gross insubordination, willful neglect of duty, and misconduct in office. “Incompetency” is defined in Florida Administrative Code Rule 6A-5.056(3) as, “the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.” “Gross insubordination” is defined in rule 6A-5.056(4) as “the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties.” See Fla. Admin. Code R. 6A-5.056(2)(c). “Willful neglect of duty” is defined in rule 6A-5.056(5) as the “intentional or reckless failure to carry out required duties.” “Misconduct in Office,” according to rule 6A-5.056(2), is satisfied by a showing of one or more of the following: a violation of the adopted school board rules, a violation of the Code of Ethics of the Education Profession in Florida (as adopted in Florida Administrative Code Rule 6B-1.001), or behavior that disrupts the student’s learning environment. The Board’s Policy 6.301(3)(b) identifies a variety of terminable offenses including: Insubordination * * * (x) Failure to follow a direct order in normal performance of employee’s job * * * Failure to notify supervisor and receive permission for one or more consecutive workdays’ absence Unsatisfactory work performance Excessive absences or tardiness Neglect of duty Unauthorized absences * * * (xix) Violation of any rule, policy, regulation, or established procedure * * * (xxix) Any violation of the Code of Ethics of the Education Profession, the Principles of Professional Conduct for the Education Profession, the Standards of Competent and Professional Performance, or the Code of Ethics for Public Officers and Employees * * * (xxxiv) Failure to correct performance deficiencies The finding that Respondent violated one and/or multiple Board policies relating to his excessive absenteeism necessarily shows that he is guilty of “misconduct in office.” Respondent’s Defenses Reason for Absences Respondent does not dispute his record of absenteeism or the District’s record of communicating its concern regarding his chronic absenteeism and its effect on his students. Rather, Respondent asserts that his absenteeism was related to the environmental conditions at PSLHS. Respondent believes that he suffered from chronic sinus problems, headaches, and repeated scratchy throats due to possible exposure to mold or other allergens at the school which caused many of his absences. According to Respondent, PSLHS suffered storm damage in 2008 that resulted in mold growing around his classroom door. After school authorities were notified by Respondent of the mold issue, the door and mold was removed. Respondent has not worked in that classroom in more than three years. Respondent admitted that some of his absences during the 2012-2013 and 2013-2014 school years were not related to sinus problems. For example, Respondent missed work when he stayed up late with a new puppy. Respondent also missed work to get massage therapy on several occasions. Several of Respondent’s absences were attributed to stomach issues. None of Respondent’s doctors identified any need for Respondent to be extensively absent from work due to any medical condition, other than his recommended sinus surgery which occurred in early 2013 and was covered by FMLA. No evidence was introduced at the hearing that any of Respondent’s doctors actually determined that anything either at PSLHS or within Respondent’s classroom caused Respondent’s excessive absenteeism, or that Respondent could not work at PSLHS due any medical reason. To the contrary, during the 2012-2013 school year, Respondent provided 30 doctor’s notes returning him to work with no restrictions. During the 2013-2014 school year, Respondent provided four doctor’s notes returning him to work with no restrictions. Respondent admitted he was allergic to various grasses and trees common to Florida, and even admitted he was allergic to the grass in his own yard. When Respondent was asked if anything changed in his home environment between the 2011-2012 and 2012- 2013 school years where his absences skyrocketed, he testified that he had just gotten a puppy. During the relevant time period, approximately 70 percent of Respondent’s absences occurred on days when the proceeding day was not a school day, which suggests it was unlikely that Respondent’s absences were due to the environment at his work site. Although Respondent claimed his school environment exacerbated his allergies, his absences at issue are full-day absences where he called in sick for the entire day rather than leaving work during the workday. At no time did Respondent or his healthcare providers suggest that PSLHS or Respondent’s classroom should have air quality testing. Respondent admitted, on the days he was absent, he felt worse when he woke up at home than when he was at work in his classroom and when he was too sick to come to work he would wake up “hacking.” Further, while on administrative leave without pay, Respondent showed up to PSLHS in January 2014 to oversee a wrestling tournament that he previously helped organize. It is illogical that Respondent would voluntarily return to the very place which he now suggests made him so sick that he needed to continuously take days off without available leave or sick time. No credible evidence was presented to suggest that Respondent’s chronic absenteeism was as a result of the District’s failure “to provide a suitable working environment,” as alleged by Respondent.1/ Use of Administrative Leave Rather Than Discipline The Board asserts that Respondent’s chronic pattern of absences during the 2012-2013 school year and the first few months of the 2013-2014 school year resulted in “just cause” for termination. However, in lieu of termination, Ranew proposed, and the Board accepted, her recommendation for administrative leave without pay. Ranew credibly testified that she believed this would give Respondent the opportunity to take care of any problems that were causing his absenteeism and allow him to successfully return to the classroom in the 2014-2015 school year. There is no provision under any statute, rule, or policy specifically providing the Board with the authority to place an employee on administrative leave without pay instead of a suspension without pay or termination.2/ Because of this, Respondent argues that he was deprived of due process by the Board and that the Board’s action constitutes the improper use of an unpromulgated rule. A “rule” is defined in the Administrative Procedure Act (APA) as an: agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of rule. § 120.52(16), Fla. Stat. No evidence was presented regarding any alleged Board “statement of general applicability” regarding the use of administrative leave without pay as a substitute for disciplinary action. Further, it is clear from the record that Respondent received all the process to which he was entitled--notice and an opportunity to be heard prior to the implementation of the leave without pay. Respondent was provided a letter by hand delivery on October 24, 2013, from Yost in which he was advised that he was being placed on temporary duty assignment until the next Board meeting and that she intended to recommend he be placed on administrative leave without pay through the remainder of the school year due to his excessive absenteeism. He was notified that he had exhausted all paid leave yet continued to be absent. It was also noted that Respondent’s physician indicated he could perform as a teacher but may have a hearing loss when middle ear fluid is present. Notably, his physician’s letter accounted for four of his absences in August and two of his absences in September 2013, but did not address the other eight absences which he incurred during September and October 2013. This letter advised Respondent that if he had any information to provide regarding why this action should not be taken, he could do so in a meeting or in writing. Accordingly, Respondent had notice and an opportunity to be heard prior to the implementation of the leave without pay. Additionally, the Statement of Charges issued on December 19, 2013, and the formal administrative hearing before DOAH constituted notice and an evidentiary hearing-–the post adverse employment action due process to which Respondent was entitled. The undersigned has no doubt about the sincerity of the Board’s desire to see Respondent take time to address whatever was resulting in his absences and return to work successfully. However, to call Respondent’s “administrative leave without pay” a non-disciplinary action is an exercise in form over substance. While on leave, Respondent was not receiving his normal wages for teaching. He was not allowed to return to the school to teach for the balance of the school year.3/ Understandably, Respondent does not perceive his leave as beneficent. For all intents and purposes it is, in fact, a “suspension” without pay which, pursuant to the Board’s policies, applicable rules, and statutes, can only be imposed for “just cause.”4/ Determinations of Ultimate Fact The greater weight of the evidence establishes that Respondent engaged in a pattern of excessive and chronic unexcused absenteeism during the 2012-2013 and 2013-2014 school years, despite the District’s repeated reminders regarding the disruption caused by Respondent’s absences and its multiple attempts to accommodate any medical condition that might have been causing the absences.5/ This pattern resulted in a variety of terminable offenses as described in Board Policy 6.301(3)(b). It is determined, as a matter of ultimate fact, that Respondent is guilty of incompetency, as defined by rule 6A- 5.056(3)(a)5. by virtue of his excessive absenteeism--a pattern which was not resolved after FMLA leave, 21 additional days of leave without pay during the 2012-2013 school year, and which continued into the new school year of 2013-2014. It is determined, as a matter of ultimate fact, that Respondent is guilty of gross insubordination by virtue of his failure to perform his required duties, excessive absenteeism despite having no paid leave available, and failing to return to work on a consistent and regular basis after repeated and extensive counseling by the District regarding the consequences of his actions. It is determined, as a matter of ultimate fact, that Respondent engaged in willful neglect of duty by failing to regularly report to work or to properly request time off from work or make arrangements to have lesson plans available for substitute teachers. It is determined, as a matter of ultimate fact, that Respondent engaged in misconduct in office by virtue of his violation of School Board policies and disrupting his students’ learning environment by his chronic absenteeism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, St. Lucie County School Board, enter a final order upholding Respondent’s suspension without pay from November 20, 2013, through the end of the 2013- 2014 school year; denying back pay for the full period of his suspension; and reinstating Respondent’s employment as a teacher at the start of the 2014-2015 school year. DONE AND ENTERED this 12th day of June, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 12th day of June, 2014.
The Issue The issue to be determined is whether just cause exists to terminate Respondent’s employment as a teacher in the Duval County School System.
Findings Of Fact Background Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the Duval County School System. Petitioner’s authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. At all times material to this matter, Respondent was employed by the School Board as a teacher at Robert E. Lee High School and Raines High School. During the 2016-2017 school year, Respondent was a mathematics teacher. Mr. Perry is subject to the collective bargaining agreement for teaching personnel between the School Board and the Duval Teacher’s Union (“DTU”). On March 17, 2017, the School Board issued a Notice, notifying Mr. Perry of its intent to recommend suspension without pay and termination of Mr. Perry’s position as a teacher. On April 4, 2017, the School Board, at a regularly scheduled meeting, voted to accept the recommendation to suspend without pay and terminate Mr. Perry. The allegations and charges in the Notice served as the bases upon which the School Board members cast their votes. On April 7, 2017, Respondent timely filed a request for an administrative hearing to dispute the allegations in the Notice. Prior Disciplinary Action The School Board has issued prior disciplinary action against Mr. Perry. A School Board teacher may receive progressive or non-progressive disciplinary action. Progressive discipline is formal action that begins with less severe discipline and progresses to more severe discipline. On the other hand, non-progressive discipline is informal action. The Notice listed the prior disciplinary action imposed against Mr. Perry as discussed further below. In October 2014, Respondent was investigated for inviting students to view his Twitter page,1/ which allegedly contained inappropriate and offensive images. Mr. Perry was issued a verbal warning, which is considered non-progressive discipline. In March 2015, Respondent was arrested for Making Repeated Harassing Phone Calls, a misdemeanor, to which he entered into a pre-trial intervention program. On September 25, 2015, Respondent received Progressive Discipline (Step II) of a written reprimand. This was Mr. Perry’s first disciplinary action involving progressive discipline. In January 2016, Respondent was arrested a second time and charged with stalking, a misdemeanor, to which he pled nolo contendere. On May 31, 2016, Respondent received Progressive Discipline (Step II) of a written reprimand. Recent Conduct In addition to the prior arrests resulting in prior discipline, the Notice indicates Respondent had two additional arrests. The Notice references arrests on August 5, 2016, and January 24, 2017. Regarding the August 2016 arrest, the evidence offered at hearing does not support the allegations in the Notice regarding that arrest or the alleged subsequent incarceration. On January 24, 2017, Respondent was arrested for Violation of Injunction for Protective Order. Regarding the January 2017 arrest, Petitioner offered at hearing Respondent’s email (dated February 20, 2017) to Reginald Johnson, in its case-in-chief. In the email, Respondent admits that he was arrested on January 24, 2017. The statement was offered by Petitioner against Respondent, and thus, meets a hearsay exception.2/ In an attempt to explain the circumstances surrounding the January 2017 arrest, Petitioner offered a police report (with attached affidavits), which was included in Mr. Johnson’s investigative report. The police report and affidavits contain hearsay that does not meet a hearsay exception.3/ Therefore, any statements in the police report and affidavits cannot be relied upon to support a finding of fact. Furthermore, since the affiants did not testify at hearing, Respondent did not have an opportunity to cross-examine them. Mr. Johnson also included summaries of the affidavits in his investigative report. The summaries, like the affidavits, are hearsay and are not credible evidence to support a finding of fact. Mr. Perry also accrued a number of unexcused absences during the 2016-2017 academic school year. Between August 29, 2016, through March 6, 2017, Petitioner accrued 58 days of unauthorized leave without pay (“LWOP”). There were approximately 180 days in the academic school year. Based on the number of absences, Respondent was absent approximately 32 percent of the school days, which is excessive. The School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. Mr. Schneider explained the protocol for teachers to report absences. If a teacher is unable to request leave before an absence, the teacher is required to call in to the school and complete a leave request form upon return to work. Mr. Schneider explained that when a teacher does not request leave before an absence, it affects the administration’s ability to obtain a substitute teacher. Mr. Schneider also discussed the impact of Mr. Perry’s absence on parents and students. Mr. Perry’s absences resulted in the inability of students and parents to determine the students’ current grades. Mr. Schneider also testified that he “thinks the students felt a lack of confidence and then they have increased anxiety” regarding lack of knowledge of their grades and test scores. However, Mr. Schneider did not identify any students or parents who confirmed his assertion. Therefore, the undersigned is not persuaded by Mr. Schneider’s unsubstantiated testimony regarding the impact Mr. Perry’s absences had on students. Mr. Perry testified that the LWOP was a result of his incarceration because he was unable to report his absences to the appropriate school officials. However, there was no credible evidence to support Respondent’s assertion that he was unable to report his absences and seek approval for leave for the 58 days he was absent from work. Although he was incarcerated, it was Respondent’s responsibility to properly request leave according to the leave policy. Disciplinary Action Recommendation At the completion of the investigation of the allegations against Mr. Perry, his investigative file was referred to Human Resource Services for review. Ms. Young, the assistant superintendent of Human Resources, is responsible for overseeing the Department of Equity and Inclusion and Professional Standards, which conducts investigations of complaints made against district employees for misconduct. Ms. Young’s duties include reviewing investigative records to determine a recommendation of disciplinary action based on the progressive discipline policy. Ms. Young primarily reviews cases involving allegations that could result in suspension without pay or termination. The progressive discipline policy provides four levels of discipline beginning with a verbal reprimand (Step I), written reprimand (Step II), suspension without pay (Step III), and termination (Step IV). The purpose of progressive discipline is to allow the teacher an opportunity to rehabilitate his or her behavior. However, any of the steps may be skipped if the conduct is deemed severe as determined by assessing the totality of the circumstances. The factors considered include the nature of incident, whether there is a pattern of behavior, whether students are involved, and whether there are mitigating or aggravating circumstances. Ms. Young reviewed Mr. Perry’s investigative file and determined that Mr. Perry’s pattern of numerous arrests and excessive absences resulting in leave without pay demonstrated that he was unable to perform his duties a teacher. Ms. Young explained that a teacher’s conduct outside of work may be considered misconduct because it impacts the teacher’s reputation in the community with peers and with students. Regarding mitigating factors, Ms. Young considered Mr. Perry’s cooperation as a mitigating factor. Although Ms. Young had no information regarding Mr. Perry’s conduct within the classroom, Mr. Schneider testified that Mr. Perry had an effective rating for conduct in the classroom. Ultimate Findings of Fact The undersigned recognizes that Petitioner’s actions arise from a set of events related to a child custody dispute. Based on the facts set forth herein, the preponderance of the evidence supports a finding that Petitioner’s actions resulted in a number of arrests over the course of 18 months. The preponderance of the evidence demonstrates that Respondent accrued excessive absences by accruing 58 absences resulting in LWOP during the 2016-2017 academic school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Duval County School Board, enter a final order terminating the employment of Jason Perry as a teacher. DONE AND ENTERED this 27th day of October, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 October, 2017.
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES 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. At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as follows: Corporal Punishment - Prohibited The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary action depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
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 her employment as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, 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 16th day of December, 2008.
The Issue The issue is whether Respondent’s conduct constitutes just cause for her dismissal from employment with Petitioner.
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22 (1)(f), Fla. Stat. According to section 4.4-1 of the Teacher Collective Bargaining Agreement (Agreement): Progressive discipline shall be followed, except in cases where the course of conduct or the severity of the offense justifies otherwise. Unusual circumstances may justify suspension with pay. Progressive discipline shall be administered in the following steps: verbal warning in a conference with the teacher, (A written confirmation of a verbal warning is not a written reprimand); (2) dated written reprimand following a conference; (3) suspension without pay for up to five days by the Superintendent and (4) termination. “Letters of Concern” are not a form of discipline. Progressive discipline is generally recognized as the process of using increasingly severe measures when an employee fails to correct a problem after being given a reasonable opportunity to do so. The measures range from mild to severe, meaning they can be as simple as a verbal warning to correct conduct, to employment termination for repetitive conduct that endangers others. Ms. Hirsch has been employed by the School Board for 14 years. She has been employed pursuant to terms of the Agreement. Ms. Hirsch taught kindergarten at Dundee Elementary School (Dundee) for eight years. In 2013, she took a medical leave of absence to attend to family health matters out-of-state. When Ms. Hirsch returned to Florida in January 2014, she was placed at Eastside Elementary School (Eastside), and assigned to teach first grade. On April 8, 2014, Johna Jozwiak, Eastside’s principal, issued a verbal warning with a written confirmation to Ms. Hirsch regarding her excessive absences. Ms. Hirsch had been absent from school for ten days, two of which were without any accrued leave time. Ms. Hirsch was put on notice that this verbal warning was the first step of Progressive Discipline as outlined in section 4.4-1 of the Agreement. Eight days later, Principal Jozwiak issued a written reprimand to Ms. Hirsch regarding her failure to leave adequate substitute lessons plans on the days of her absences. This written reprimand was the second step of Progressive Discipline as outlined in section 4.4-1 of the Agreement. Principal Jozwiak testified that Ms. Hirsch was mailed a certified copy of the written reprimand; however, no evidence was introduced that Ms. Hirsch actually received a copy of it. Ms. Hirsch’s written request for her second family leave/medical leave of absence without pay indicated a “Beginning Date” of April 17, 2014, and a “Return Date” of August 11, 2014. Principal Jozwiak testified that she was uncertain if Ms. Hirsch would return to Eastside to teach in the 2014-2015 school year.3/ When Principal Jozwiak found out Ms. Hirsch would return, Ms. Hirsch was assigned to teach a fifth grade class.4/ Ms. Hirsch’s fifth grade classroom was the last portable on the far end of the school property. Beyond her portable were private residences separated only by a chain-link fence. Ms. Hirsch felt there were times when her request for assistance was delayed because of the distance to administrative support services at the front of the school. Ms. Hirsch had new curriculum for the fifth grade and a different teaching method to follow called Common Core. Ms. Hirsch had difficulty in controlling her class room, and in utilizing the Common Core teaching method. On September 10, 2014, Ms. Hirsch participated in an instructional assistance conference with Principal Jozwiak. During this conference several aspects of Ms. Hirsch’s teaching techniques were discussed, and seven specific suggestions were provided to improve her teaching techniques. On October 2, 2014, Principal Jozwiak issued a verbal warning with a written confirmation (Petitioner’s Exhibit 5)5/ regarding Ms. Hirsch’s professional performance. The verbal warning reminded Ms. Hirsch of the September 10 conference, and the suggestions offered to improve her teaching techniques. Ms. Hirsch was offered continued support to improve her teaching techniques. Ms. Hirsch was put on notice that the verbal warning was the first step of Progressive Discipline as outlined in section 4.4-1 of the Agreement. Almost four months later, on January 22, 2015, Ms. Hirsch was issued a verbal warning with a written confirmation regarding her failure to follow the prescribed [Common Core] pacing schedule and daily plan. Again, Ms. Hirsch was put on notice that this verbal warning was the first step of Progressive Discipline as outlined in section 4.4-1 of the Agreement.6/ On Friday, February 6, 2015, Eastside was placed in a “lockdown”7/ after the school day started. Although some students helped Ms. Hirsch put up the black paper to shield the windows, the overall class atmosphere was agitated. Students screamed and ran around the classroom. Eventually the students calmed down; however, it was difficult to keep them on task that day. The lockdown ended and the school day progressed. Principal Jozwiak was unable to recall whether there was a lockdown on February 6. Near the end of the school day, the students became agitated again, and would not listen or pay attention to Ms. Hirsch’s lesson. Ms. Hirsch turned the lights off and on, she clapped her hands, and she asked the students to “give me five” (which meant the students were to be quiet for five minutes). The students did not quiet down and Ms. Hirsch became frustrated. In her frustration, Ms. Hirsch swept a basket off a shelf right next to her desk. The basket contained four or five little reader books. When the basket was swept off the shelf, neither it nor the reader books hit any students. The three students who testified corroborated Ms. Hirsch’s statement that it was a little basket that was swept off a shelf. Although two students testified there was nothing in the basket, the third testified a book almost hit her. No testimony was adduced about the size of the books, other than Ms. Hirsch’s testimony that they were “little.” Ms. Hirsch voiced her frustration by calling the students “dumbasses.” Ms. Hirsch immediately apologized to the students, and broke down in tears. Principal Jowiak became aware of the language and book incident at the end of the school day on February 6. Principal Jowiak determined to address the matter on the next school day, Monday, February 9. On Monday, February 9, Principal Jozwiak contacted the School Board’s human resource department. Upon questioning, Ms. Hirsch admitted she slid her arm across a bookshelf and knocked a green and yellow basket off the shelf. In her frustration with the students’ behavior that day, Ms. Hirsch told them they were acting like “dumbasses.” Principal Jozwiak obtained written statements from the students in Ms. Hirsch’s class. Over the next several days, parents called to complain and the School Board then conducted an investigation of the incident. On February 9, Principal Jozwiak wrote Superintendent Kathyrn LeRoy the following: On 2/6/15 it was reported to me that Ms. Hirsch, a teacher at our school, got angry with her students and threw buckets full of books off the shelves. While she was doing this, she called all of her students “dumbasses.” After school on Friday, two students told another teacher about this issue. Two parents also called the office to report this incident. Administration interviewed all students. They confirmed that this happened. I have a statement from the staff member and others, and have verified that this took place as stated. On 2/9/15, administration asked Ms. Hirsch about this issue. She admitted to doing all the above actions. We have documented on-going shortcomings in Ms. Hirsch’s professionalism as a teacher at this school. She received a verbal warning for her failure to follow the procedural schedule and plan. A copy of the documentation for that step of Progressive Discipline is attached.[8/] I am of the opinion that Ms. Hirsch’s recent lack of professionalism rises to the level of serious misconduct and just cause for further disciplinary action. Accordingly, pursuant to Section 4.4-1 of the Teacher Collective Bargaining Agreement, I request that you consider suspending Ms. Hirsch without pay for a period of five days in accordance with the third step of Progressive Discipline. (emphasis supplied). Approximately 10 days later, Principal Jozwiak had a meeting with the head of the School Board’s human resource office, an associate superintendent, and her regional associate superintendent. The decision to terminate Ms. Hirsch’s employment was made based on her admission. On March 16, 2015,9/ Superintendent LeRoy wrote Respondent asserting that the School Board had just cause to terminate Ms. Hirsch’s employment based on the following: On March 6, 2013, you received a verbal warning (Step I) for issues regarding student safety. You received a verbal warning (Step on March 8, 2014 for excessive absenteeism. On April 16, 2014 you received a written reprimand (Step II) for failure to leave lesson plans when required to have a substitute cover your class. You received a verbal warning (Step I) on October 2, 2014 due to performance issues. On February 19, 2015 you received a written reprimand (Step for excessive absenteeism. On February 6, 2015 there was an incident in your classroom where you became angry with your students. According to the witness statements that were collected, during your agitated state you threw or shoved buckets full of books off of shelves in the room and also called your class “dumbasses.” These actions violate The Code of Ethics and The Principles of Professional Conduct of The Education Profession in Florida (3)(a)…”shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety” as well as (3) (e) … “shall not intentionally expose a student to unnecessary embarrassment or disparagement.” Based on these findings, it has been determined that your actions constitute serious misconduct and that there is “just cause” for your termination as a School Board employee. You have the right to request a hearing before the final action is taken by the School Board on this recommendation. Such request must be submitted in writing, addressed to Superintendent LeRoy, sent to the attention of Cynthia Sprouse, Office of Employee Relations, Polk County School Board, 1915 South Floral Avenue, Bartow, Florida 33830 no later than 4:00 p.m. on Wednesday, March 25, 2015. If you request a hearing, you will be suspended without pay at the April 14, 2015 Board Meeting pending the outcome of the hearing and the School Board’s final action on the Hearing Officer’s Recommended Order. The allegations in this case are set forth above. Ms. Hirsch is alleged to have received three verbal warnings and two written reprimands over the course of approximately 23 months. On February 6, 2015, Ms. Hirsch was alleged to have thrown “or shoved buckets full of books off of shelves in the [her class] room” in addition to calling her class “dumbasses.” A careful review of the evidence proves otherwise. While at Dundee Elementary School, Ms. Hirsch received a verbal warning regarding student safety issues. Although a March 6, 2013, letter was submitted into evidence to support this allegation, no direct testimony was received regarding it. Ms. Hirsch was placed at Eastside in January 2014. No testimony was presented about a March 8, 2014, verbal warning with written confirmation about Ms. Hirsch’s excessive absenteeism. Ms. Hirsch was served (and acknowledged receipt of) an April 8, 2014, verbal warning with written confirmation regarding her excessive absenteeism. The April 16, 2014, written reprimand identified Ms. Hirsch’s failure to leave adequate substitute lesson plans when she was absent from school, and was presented as a second step in the Progressive Discipline scheme. Ms. Hirsch testified that she always provided lesson plans when she was absent. Ms. Hirsch’s Exhibit No. 2, an email from February 22, 2015, providing “Lesson Plans for Week of February 23-27” is well after the alleged incident occurred. In early October 2014 of the next school year, Ms. Hirsch received a verbal warning with a written confirmation regarding her professional performance. While Eastside’s administration was continuing to provide support to Ms. Hirsch, this verbal warning was considered the first step of Progressive Discipline. Although a verbal warning with a written confirmation about Ms. Hirsch’s “failure to follow the prescribed pacing schedule and daily plan” was issued on January 22, 2015, this notification was not within the superintendent’s March 16 letter recommending termination. Further, the superintendent’s use of the verbiage that Ms. Hirsch “threw or shoved buckets full of books off of shelves in the room” is not supported by the evidence presented. There is no doubt that Ms. Hirsch used inappropriate language with her students. Further, her sweeping the basket off its shelf was inappropriate behavior. Her demeanor and actions were inconsistent with professional behavior by a teacher. Petitioner has proven by a preponderance of evidence that there is just cause to discipline Ms. Hirsch.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, suspend Ms. Hirsch for five days without pay. DONE AND ENTERED this 1st day of September, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2015.
The Issue Whether revocation of Respondent's state certification requires his dismissal by the Pinellas County School Board and, if so, has Respondents' certificate been revoked for these purposes by the Education Practices Commission.
Findings Of Fact At all times relevant hereto Respondent was employed on the instructional staff of the Pinellas County School system under a Professional Services Contract. On October 23, 1985, Respondent was issued a Florida Department of Education Teacher's Certificate valid through June 30, 1990. By Administrative Complaint dated October 31, 1988, the Commissioner of Education alleged Respondent violated Sections 231.28 (1)(a), (c), (e), (h), and (2), Florida Statutes, and Rule 6B-1.006(5)(a), (f), (g), and (h), Florida Administrative Code. These allegations constitute grounds for revocation of Respondent's certificate. Respondent waived formal hearing, and requested informal proceedings before the EPC. These informal proceedings resulted in a Final Order filed February 17, 1989 in which Respondent's teaching certificate was revoked for three years. The action of the EPC was announced orally at the informal hearing on January 26, 1989, and on February 3, 1989, Respondent filed a Motion to Rescind Election of Rights previously waiving formal proceedings and to set aside agency action. On February 22, 1989, Respondent filed a motion with EPC for a stay pending final review in which he requested the action of the EPC revoking his certificate be stayed pending action by the EPC on his February 3rd motion. On February 23, 1989, an order was entered by the EPC granting the stay pending reconsideration of the order revoking Respondent's teaching certificate On May 30, 1989, the EPC entered an order denying Respondent's demand for reconsideration and affirming it's final order revoking Respondent's certificate. An appeal from that order had previously been filed with the Second District Court of Appeals, but jurisdiction of the Court of Appeals had been relinquished to allow the EPC to reconsider. On July 25, 1989, Respondent filed in the Second District of Appeals a Motion to Stay the revocation of his certificate pending review by the court of his appeal. By order entered August 9, 1989, the Second District Court of Appeals denied the motion to stay the revocation of Respondent's certificate pending appeal of the EPC order.
Recommendation It is recommended that a Final Order be entered dismissing Lloyd Crossman from the instructional staff of the Pinellas County School system. ENTERED this 13th day of October, 1989, in Tallahassee, Florida. K.N. AYERS 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 13th day of October, 1989. COPIES FURNISHED: Bruce Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, Florida 33675-0638 Dr. Scott N. Rose, Supt. Pinellas County Schools 1960 East Druid Road Clearwater, Florida 33546 Karen Barr Wilde, Exec. Dir. Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of a handicap or disability.
Findings Of Fact The Petitioner became employed on an annual non-renewing contract as a paraprofessional at Park Elementary School during the 1993-94 school year. The Petitioner was assigned to work in a classroom program for developmentally disabled preschool children. The children were three to four years of age and very active. There were between five to nine children in the classroom. The Petitioner was generally assigned to work with two children and was responsible for monitoring their activity. She was also responsible for physically controlling the children and changing diapers when required. The substantial part of the workday was spent standing, bending, lifting, and moving about with the children. The Petitioner continued her employment in the 1994-95 school year and received satisfactory evaluations. During the 1995-96 school year, the Petitioner continued her employment as a paraprofessional. Although there is evidence that the Petitioner's job performance was of some concern to the class teacher and to the school principal, the Petitioner was not formally evaluated because her employment was interrupted as set forth herein. There is no evidence that anyone discussed the concerns with her or that she had an opportunity to remedy any alleged deficit in her job performance. On January 2, 1996, the Petitioner was riding in a car being driven by her husband and was involved in an automobile accident when another driver struck the Petitioner's car. The Petitioner was injured in the accident and was taken to a hospital where she was treated and released. Subsequent to the accident, the Petitioner continued to have pain in her neck and sought treatment from a chiropractor. Eventually, the chiropractor referred the Petitioner to a neurologist in an attempt to determine the cause of the pain. The medical professionals determined that the Petitioner's injuries were not permanent. The Petitioner's chiropractor described the pain as a "typical soft tissue injury" and eventually stopped treating the pain because the pain did not improve and was not supported by diagnostic testing. The Petitioner's neurologist opined that the neck pain was not a "disability." The Petitioner returned to the school on February 14, 1996, and discussed her physical limitations with the school principal. She showed the principal a copy of a letter from her chiropractor to an insurer that stated that she was "able to work in a limited capacity . . . with a 15 pound limit" and that "she is to avoid excessive bending, stooping and standing." The Petitioner asserts that the school principal told her to go home and return a week later. The Respondent asserts that the Petitioner informed the Principal that she could do the job but only under the restrictions set forth in the chiropractor's letter. The evidence establishes that the discussion related to whether or not the Petitioner was able to return to work was centered on her ability to perform her responsibilities and that the Petitioner decided she was unable to return to work at that time and would return a week later. By letter dated February 15, 1996, the School Board's personnel coordinator advised the Petitioner that she had used all of her sick leave and would not receive any additional pay until she returned to work. The letter suggested that she request an official leave of absence effective January 2, 1996, in order to permit her retirement benefits to be maintained because "time spent on an official leave of absence can be bought back by the employee from the Division of Retirement." On February 21, 1996, the Petitioner contacted the school principal and informed him she would be unable to return on that day due to family matters. On February 22, 1996, the Petitioner returned to the campus and spoke with the principal. The Petitioner told the principal she did not feel physically capable of working as a paraprofessional in the preschool classroom and asked him to provide her with other employment. The principal told the Respondent he did not have any open positions at the school for which she would be physically suited. The principal was also concerned that because the Respondent was physically restricted from bending, stooping, and standing for an extended time, she would not be able to perform the responsibilities of her employment. There is no evidence that on February 22, 1996, or at any time during the remainder of the 1995-96 school year, there were jobs available at the school that did not require physical activity beyond the Petitioner's abilities. On February 26, 1996, the Petitioner contacted the school principal and said she wanted to take a leave of absence as suggested by the personnel coordinator. The principal believed there was a misunderstanding about the availability of the leave of absence to an annual contract employee and suggested that she speak to the personnel coordinator. The principal also called the coordinator and requested that he clarify the matter with the Petitioner. On February 27, 1996, the personnel coordinator telephoned the school principal and said that the Petitioner had been informed that she was not eligible for a leave of absence and said that the Petitioner had suggested she would resign her employment. On March 1, 1996, the Petitioner contacted the principal and said she wanted to apply for a leave of absence. The principal contacted the personnel coordinator who suggested that the Petitioner submit to the school superintendent a letter requesting the leave along with a copy of the chiropractor's letter and then let the superintendent decide whether or not he would recommend to the school board that her leave request be granted. The information was relayed to the Petitioner, who stated that she would submit the letter. By letter dated March 7, 1996, the Petitioner relayed the events to the superintendent and requested "any consideration you can give in resolving this matter." In the March 7 letter, the Petitioner writes, "[d]ue to the activeness of the children in this class the possibility of re-injuring myself is very high." She also advises that she informed the principal that the personnel coordinator suggested that she request the leave of absence and that the principal suggested that she write the letter to the superintendent. The Petitioner asserted that she would not resign from her position. Attached to the March 7 letter were past evaluations, a March 6 letter "to whom it may concern" from her chiropractor restating the symptoms of her injury, and the February 15 letter she received from the personnel coordinator suggesting the leave of absence. By letter dated March 19, 1996, the Petitioner referenced a March 15 meeting with the superintendent and states "[i]f there are no reasonable accommodations for a job replacement, I would like to request a medical leave of absence for the remainder of this year." She enclosed the letter from the chiropractor with the letter to the superintendent. There appears to have been no response from the superintendent to the Petitioner's request for a leave of absence. By letter dated June 4, 1996, the personnel coordinator responded to the request for leave of absence by stating that because the Petitioner was on an annual contract, the request for a leave of absence could not be granted. The letter also stated that due to a lack of funding, some employees would not be called back to work in the 1996-97 school year, and suggested that she should apply for a future vacant position "when you are again able " According to the leave policy set forth in the school board's employment handbook, any employee may request a leave of absence. Such requests must be made at least seven days prior to the requested leave period except in the case of emergency when the request must be made "as soon as possible." The policy requires that the leave application be made in writing and on the form provided for such requests. The policy provides that the School Board "may grant leave, with or without pay." The evidence fails to establish that the Petitioner followed the school system policy in requesting a leave of absence after her accident. The Petitioner did not complete and sign a form requesting a leave of absence. The first written request to the school superintendent for a leave of absence was the letter of March 19, approximately 70 days after the accident. The first time the issue of a leave of absence was verbally addressed by the Petitioner was on February 26, 1996, approximately 50 days after the accident, when she told the school principal that she wanted to take a leave of absence as suggested by the personnel coordinator in his letter of February 15. The evidence fails to establish that the Petitioner has a handicap or disability as those terms are defined under applicable statutes and case law. The evidence fails to establish that the Respondent discriminated against the Petitioner in any employment decision on the basis of a handicap or disability. There is no credible evidence that the Petitioner filed a Request for Disability Accommodation at any time prior to the end of the 1995-96 school year. For the remainder of the 1995-96 school year, a substitute teacher filled in for the Petitioner. The job remained open and available to the Petitioner through the end of the school year. The position was not filled on a permanent basis because school officials were uncertain about whether the Petitioner would be able to return for work. Paraprofessional employees working for the Highlands County School System are employed as annual employees for the first three years. After successful completion of the third year, the paraprofessional becomes eligible for consideration for continuing contract employment. An employee under an annual contract has no automatic right to re-employment. Continuing contract employment provides increased job security to an employee because termination of employment must be for "just cause" or when required by a "reduction in force." Continuing contract employees also receive preference over non-contract employees when workers are recalled after a reduction in force. The successful completion of the third year does not guarantee that the paraprofessional will receive the continuing contract, but only provides that such employee is eligible to receive such a contract The Respondent requires that in order to work a "complete" year, an employee must work for at least 150 days in a school term. Because the Petitioner did not work for at least 150 days in the 1995-96 school term, she did not complete the third year of employment and is not currently eligible for a continuing contract as a paraprofessional employee. The Respondent may permit a paraprofessional employee to work a fourth year, after which the employee automatically receives a continuing contract. Because there were concerns related to the Petitioner's job performance in the 1995-96 school year, the principal of the school would not likely have recommended that a fourth year of employment (and a resulting automatic continuing contract) be permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Mary Ann Kerney. DONE AND ENTERED this 1st day of June, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Katherine B. Heyward, Esquire John K. McClure, P.A. 230 South Commerce Avenue Sebring, Mary Ann Florida Kerney 33870 4524 Elm Sebring, Avenue Florida 33870 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Wallace Cox, Superintendent Highlands County School Board 426 School Street Sebring, Florida 33870-4048
The Issue Whether Respondent's teaching certificate should be suspended or revoked, or Respondent otherwise disciplined for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B-5, Florida Administrative Code, as set forth in the Administrative Complaint, dated October 21, 1980. This proceeding commenced with the Filing of an Administrative Complaint by the Commissioner of Education alleging that Respondent's teacher's certificate should be revoked or suspended, or other action taken, pursuant to Chapter 231, Florida Statutes, for gross immorality, moral turpitude, and engaging in conduct which seriously reduced his effectiveness, by reason of the alleged sale of cocaine to Tampa Police Department Detectives on November 16, 1979. The complaint also alleged that the Respondent was in violation of Section 231.09, F.S., in that he failed to provide a proper example for students, and of Chapter 6B-5, Florida Administrative Code, in that he had not practiced his profession at the highest ethical standard. The complaint was filed on October 21, 1980, and by an "election of rights" form received by the Professional Practices Services Section of the Department of Education on December 29, 1981, Respondent disputed the allegations of material fact of the complaint and requested a formal hearing before this Division. The case was thereafter referred by the Education Practices Commission to this Division by letter of January 6, 1981. By Order, dated January 15, 1981, the parties were advised of various procedural matters by the Hearing Officer, and paragraph 7 thereof quoted Model Rule of Procedure 28-5.104, F.A.C., concerning representation in administrative proceedings. Notice of Hearing was issued on February 4, 1981, for final hearing on April 23, 1981. Due to the fact that it was later determined that an incorrect address had been used on the notice for Respondent, an Amended Notice of Hearing was issued on March 11, 1981. On April 20, 1981, a letter from Respondent to Petitioner's counsel dated April 12, 1981, was received in this Division after referral by said counsel. The letter requested that Petitioner's counsel inform him of a court appointed attorney to represent him since he could not afford to hire an attorney to defend him. He further asked that he be granted a continuance until the problem could he resolved. Petitioner's counsel informed Respondent, by letter dated April 16, that he was unable to assist him in his request. On April 22, the Hearing Officer advised Respondent telephonically that there was no provision for "court appointed counsel" in administrative proceedings and that due to the lengthy period of time since Respondent had been aware of the pendency of the proceeding and of his rights to representation, and because Petitioner's counsel had orally communicated objection to any continuance, that his request was denied. Respondent stated that he did not intend to appear at the hearing and, in a later telephone conversation on the same date, stated that he was transmitting a telegram withdrawing his request for hearing. Since no such communication was received on April 22, the hearing commenced as scheduled. At that time, Respondent appeared at the hearing and renewed his motion for continuance over objection of Petitioner, and the prior denial was reaffirmed. Upon inquiry by the Hearing Officer, Respondent stated that he did not wish to represent himself and that he would not participate in the proceedings other than to submit a letter and accompanying copy of the decision of the Third District Court of Appeals in the case of Pearl v. Florida Board of Real Estate, Case No. 80-347, opinion issued February 17, 1981. In his letter, Respondent requested that consideration be taken of his record as a counselor for seven years at Sligh Junior High School in Tampa, Florida, and that his certificate not be revoked. (Hearing Officer's Exhibit 1) Respondent was thereupon advised of his rights in administrative proceedings, but although he remained in the hearing room during the course of the hearing, he took no further part in the proceedings. Petitioner filed prehearing discovery requests which were not responded to by Respondent. Petitioner thereafter Filed a Motion for an Order Compelling Discovery and Respondent failed to respond thereto. By Order dated March 26, 1981, the motion was granted and Respondent was provided a period of ten days to either respond to Petitioner's discovery requests or to assert any rights against self-incrimination as to individual requests. Respondent did not respond to the foregoing order and therefore, a subsequent order was issued on April 8, 1981, wherein it was ordered that pursuant to Rule 1.370(a), Fla.R.Civ. P., the matters of which Petitioner's First Requests for Admissions were requested were deemed admitted by the Respondent for the purpose of this proceeding. Petitioner presented the testimony of four witnesses and submitted five exhibits in evidence. Additionally, at the request of Petitioner, official recognition was taken of orders issued by the State Board of Education from 1976-1981 relating to drug-related cases in administrative license disciplinary proceedings. (Hearing Officer's Exhibit 2)
Findings Of Fact Respondent David Michael Knox holds certificate No. 325767, postgraduate rank II, which expires on June 30, 1982, covering the areas of biology, science, junior college and guidance. (Complaint) Respondent's address on December 16, 1979, was 7409 El Encanto Court, Apartment 203, Tampa, Florida. At all times material, Respondent was employed by the Hillsborough County School System as a guidance counselor. As a guidance counselor, Respondent counseled students with drug problems. (Petitioner's First Request for Admissions) On November 16, 1979, Detective Candice Moore, Tampa Police Department, pursuant to information supplied by a confidential informant that cocaine could be purchased from Respondent, telephoned Respondent to arrange such a purchase. During the course of the conversation, Respondent agreed to sell Moore a quantity of narcotics at his residence that evening. Detective Moore arrived at Respondent's residence at approximately 6:50 P.M. and was invited into the house by Respondent. He then showed her two packages and told her that she could choose the one that she wanted. She selected one of the packages. Respondent then brought out a tray on which there was a substance divided into six "lines." Respondent told Moore that she could sample the first and second lines. She simulated "snorting" the substance and also tasted it. Respondent "snorted" two lines of the substance and then told her to take the last two lines. She again simulated that she was taking the drug. Detective Moore had tasted cocaine before in the course of her duties and had determined that cocaine has a distinctive taste. The substance that she tasted at Respondent's residence tasted like cocaine. Detective Moore gave Respondent $85.00 in U.S. currency and put the package, which appeared to contain approximately one gram of the substance, in her purse. Detective Moore and Respondent then spoke of the possibility of future transactions, and he told her that if she wanted more cocaine in the future to provide him several days notice since he only kept two to three grams at his home. He further told her not to tell anyone where she had obtained the cocaine and that everything would then be "cool" and they could do business together in the future. After leaving the apartment, Detective Moore observed another detective at the police station perform a chemical reagent test on the contents of the package which she had purchased. The test was positive for cocaine. The contents of the package was then identified under evidence No. 9E-10250 and a small sample was sent to the State Crime Laboratory for analysis under evidence No. 9E-10251. Laboratory analysis utilizing standard testing procedures established that the substance gas cocaine. (Testimony of Moore, Booth, Wilbarger, Kasten, Petitioner's Exhibits 1-2) Respondent thereafter was charged with delivery of cocaine and possession of cocaine in violation of Sections 893.13(1)(a)(2), and (1)(e), Florida Statutes. On July 9, 1980, Respondent entered a plea of of nolo contendere to the charges in the Hillsborough County Circuit Court, Case No. 80- 780. The Court entered an order that adjudication of guilt and imposition of sentence be withheld, and Respondent was placed on probation for a period of three years. 1/ (Petitioner's Exhibits 3-5) Joseph C. Greco, Supervisor of Guidance Services for the Hillsborough County School System, is of the opinion that a high school guidance counselor who is arrested for the possession of cocaine would set a poor role model example for students and that his effectiveness in the school system would be diminished. He further is of the opinion that such a person would not have adhered to the highest ethical standards required of personnel in the school system. (Testimony of Greco)
Recommendation That Respondent's teaching certificate be permanently revoked, pursuant to Chapter 231, Florida Statutes. DONE and ENTERED this 18 day of May, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1981.
The Issue The basic issue in this case is whether the employer, School Board of Alachua County, committed an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by discharging or otherwise discriminating against Ms. Bates on the basis of her handicap. At the commencement of the hearing the Petitioner moved for a judgment on the pleadings or a determination that the facts were not in dispute on the basis of the respondent having failed to file an answer in accordance with Rule 22T- 9.008(5)(a), Florida Administrative Code. The Hearing Officer reserved ruling on the motion and provided the parties an opportunity to present their evidence. Both parties presented the testimony of witnesses and both parties offered exhibits. On March 17, 1988, a transcript of the hearing was filed and on March 28, 1988, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Careful consideration has been given to the parties' post-hearing submissions during the formulation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: The Petitioner, Ann Bates, began employment with the Respondent, School Board of Alachua County, on August 15, 1983, as a classroom aide assigned to Stephen Foster Elementary School. In August of 1985, she was transferred to the A. Quinn Jones Center and assigned to the classroom of a teacher named Sue Clarey. The Principal at A. Quinn Jones Center had initially contacted the Petitioner and asked her to work at his school. The Petitioner continued to be employed by the Respondent until March 14, 1986. The Petitioner's last job title was Paraprofessional II. On February 28, 1986, the Petitioner saw Dr. W. Alvin McElveen and was given a definite diagnosis of multiple sclerosis. This diagnosis was confirmed by Dr. Richard Cunningham in early March, 1986. Petitioner has been a patient of Dr. Richard Cunningham for approximately four and a half years. In March of 1986, Dr. Richard Cunningham did not place any restrictions on Petitioner's employment. Petitioner's duties as a Paraprofessional II at A. Quinn Jones included feeding and tutoring students, as well as assisting the teacher in general clerical and administrative tasks. At all times the Petitioner was able to satisfactorily complete the job duties of a Paraprofessional II. On March 3, 1986, the Petitioner notified Mr. Jeff Jones, the Principal at A. Quinn Jones Center, that she had been diagnosed as having multiple sclerosis. In March of 1986, the Petitioner took six days off from work on sick leave (March 4, 5, 6, 7, 10 and 11) and returned to work on the morning of Wednesday, March 12, 1986. On March 12, 1986, the school secretary, Ms. Dorothy Emo, placed a handwritten note in the Petitioner's school mailbox, which stated, in substance, "Please see Mr. Jones at your convenience." It was the common practice of the Principal to speak informally with any employee who was returning from more than a day or two of sick leave to ascertain how the employee was doing and to make sure that the employee felt well enough to return to work. On the morning of Wednesday, March 12, 1986, the Petitioner left the classroom, informing the teacher that she was going to see Mr. Jones, and went to the front office. She met with Mr. Jones at about 10:00 a.m. In the Principal's office, the Petitioner expressed her frustration with her medical condition and stated that it was her desire to resign her employment. In response to the Petitioner's expressed desire to resign, Mr. Jones asked the school secretary to bring in a "resignation form," which she did. It was a new form, with which the Principal was not familiar. The Petitioner and Mr. Jones then discussed her leaving employment and the effect it would have on her ability to collect unemployment compensation. Both the Petitioner and Mr. Jones believed that a voluntary resignation would preclude her from being able to receive unemployment compensation. This belief, as it turned out, was erroneous. The Respondent School District had recently revised its separation form to include all three types of separations (voluntary resignation, involuntary termination, and retirement) on one form. Previously, resignation and terminations were processed on separate, different forms. The Principal, Mr. Jones, had never used this particular separation form. Further, the Principal had never used any separation form which indicated that an employee was being involuntarily terminated. He was also unsure what was meant by the term "involuntary termination." The Petitioner and Mr. Jones believed, albeit erroneously, that for the purpose of permitting the Petitioner to separate from employment and also collect unemployment compensation, the "involuntary termination" selection was the appropriate choice. This was by their mutual agreement. Mr. Jones had the form prepared in that manner and then he and the Petitioner signed the form. Mr. Jones gave a copy of the signed form to the Petitioner (which was contrary to the normal procedure) and then forwarded the original of the form to the district office for processing. Mr. Jones also called Will Griffin, the district supervisor of personnel, informed him of Ms. Bates' resignation, and told him that the form was en route. The above-mentioned form was received by Mr. Griffin around noon on March 12, 1986. Upon reviewing the form, he realized that it had been filled out incorrectly and he immediately so advised Mr. Jones by telephone and told Mr. Jones that the Petitioner would have to complete the proper section of the form. The Respondent's School District's procedures are that "involuntary termination" is used for only three types of separation: (a) dismissal of an employee, (b) job abandonment by an employee, or (c) deletion of a position. A school principal does not have the authority to involuntarily terminate an employee or to fill out a form to that effect. The "involuntary termination" form was, therefore, a nullity and of no effect. That form was not processed by the district office staff and was never acted on by the School Board. Principal Jones told his school secretary of the error on the form and asked her to prepare a corrected form. The corrected form indicated that Petitioner was resigning and was not being involuntarily terminated. The corrected form was signed by the Petitioner and the Principal on March 14, 1986, and it was then processed by the district office. At its regularly scheduled meeting on April 15, 1986, the Respondent School Board acted on the Petitioner's resignation and accepted it in a routine manner. At the time the Petitioner signed the second form on March 14, 1986, she did not indicate to the Principal in any way that she had changed her mind about wanting to resign. If the Petitioner had objected and had not signed the resignation form, she would have remained employed by the Respondent. At any time prior to the School Board's formal approval of a resignation, an employee may withdraw a resignation. At no time prior to the School Board's action on April 15, 1986, did the Petitioner withdraw her resignation or notify Mr. Jones or any other representative of the School Board of any change of mind regarding her resignation. At the time of the Petitioner's resignation, no steps had been taken by Principal Jones, or by any other representative of the School District, to dismiss the Petitioner from her employment. At that time the possibility of dismissing the Petitioner had not even been discussed. The Petitioner applied for and was awarded unemployment compensation on the basis that she had resigned her employment for health reasons. It is the policy and practice of the Respondent to provide all employees with a written notice of deficiencies on a job performance warning record before any dismissal action is begun. It is also the Respondent's policy and practice that prior to initiation of dismissal proceedings, an employee's immediate supervisor takes steps to try to resolve any problem before referring the matter to the district supervisor. Employees are normally suspended with pay pending an investigation of the basis for proposed dismissal, and actual dismissal is only carried out by the School Board after the employee has been given an opportunity for a hearing. None of these things took place with regard to the Petitioner, because the School Board was not trying to and did not dismiss her. The Respondent has a policy of providing for grievances by its employees who believe they have been treated unfairly. The Petitioner did not file a grievance with the School Board.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Ms. Williams has been employed by the School Board for 15 years and is currently a 12-month custodian at Longwood Elementary School (School), located in Seminole County, Florida. As a 12-month custodian, Ms. Williams is allowed sick and annual leave. Ms. Williams requested leave beginning July 7, 2010, to September 29, 2010, for back surgery. On August 10, 2010, the School received a letter dated July 8, 2010, from Ms. Williams's physician, advising that Ms. Williams had undergone surgery for a spinal disorder on July 7, 2010, and would need 12 weeks to recover prior to returning to work. On October 1, 2010, Ms. Williams called the School and advised that she was not able to return to work and requested leave from September 30, 2010, through October 28, 2010. Her physician sent a letter dated September 30, 2010, to the School, advising that Ms. Williams would need an additional four weeks for recovery. By this time, Ms. Williams had exhausted all her paid leave and was on leave without pay. Ms. Williams was unable to come to the School to sign the application for leave; however, the leave was approved by the principal of the School, Virginia Fisher (Ms. Fisher), who was Ms. Williams's direct supervisor. By November 2, 2010, Ms. Williams was still unable to return to work, and her physician sent another letter to the School, advising that Ms. Williams would need an additional four weeks for recovery. Ms. Williams requested leave from November 2, 2010, to November 30, 2010. Again, Ms. Williams was unable to come to the School to sign the application for leave, but it was approved by Ms. Fisher. By December 1, 2010, Ms. Williams was still unable to return to work and requested leave from December 1, 2010, through January 3, 2011. Her physician sent a letter to the School, stating that Ms. Williams needed an additional four weeks for recovery. Ms. Williams was unable to come to the School to sign the application, and the leave request was approved by Ms. Fisher. Ms. Williams's physician sent a letter dated December 27, 2010, to the School, stating that Ms. Williams had not quite reached maximum medical improvement with respect to her recovery and that he would need to see her in four weeks for reevaluation. Ms. Williams signed and submitted an application for leave for January 4, 2011, through January 24, 2011. The leave was approved. Ms. Williams's physician submitted a Return to Work/School Certificate dated January 21, 2011, to the School, stating that Ms. Williams would be able to return to work on January 24, 2011, with the following restrictions: "light duty with no repetitive lifting over her head, lifting restriction of = 30 lbs." Ms. Williams discussed the issue of light duty with Steve Bouzianis (Mr. Bouzianis), director of Human Resources, Staffing and Operations for the School Board. She told him that she had been advised by staff at the School that she needed to come back to work or submit a request for additional leave. Mr. Bouzianis informed her that she could not do the custodial job with the restrictions set by her physician. Ms. Williams was advised to submit a request for leave and was told that it would be approved. By February 18, 2011, Ms. Williams had not submitted a request for leave or submitted a letter from her physician stating that she needed to be absent from work due to an illness. By letter dated February 18, 2011, Ms. Fisher enclosed a leave request form and directed Ms. Williams to complete the form and return it to her, along with a physician's statement substantiating Ms. Williams's need for her absences no later than February 23, 2011. Ms. Fisher further advised that, if Ms. Williams could not obtain a physician's statement, Ms. Fisher would approve the leave for the remainder of the year as personal leave without pay. Ms. Fisher advised in the letter of the consequences for failure to request leave and stated: Should you fail to return to me your signed request for leave form and the supporting physician's statement (if applicable) by the date identified above [February 23, 2011], you will be considered as absent from duty without approved leave, and in violation of adopted School Board policy. In that event, the Superintendent of Schools will recommend to the School Board that you be suspended from your duties and further that your employment with the School Board of Seminole County, Florida[,] be terminated. The School received a letter dated February 22, 2011, from Ms. Williams's physician, who stated that Ms. Williams could return to work on January 24, 2011, with the same restrictions previously listed on the Return to Work/School Certificate. On February 23, 2011, Cynthia Frye (Ms. Frye), who is Ms. Fisher's assistant, attempted to call Ms. Williams at her sister's telephone number, which is the number that Ms. Williams had given the School to contact in case of an emergency. At the time, Ms. Williams was living with her sister and staying some of the time with her son. Ms. Frye called at 2:37 p.m., and got no answer, and called again at 3:15 p.m., at which time she spoke to Ms. Williams's sister. Ms. Frye told the sister that it was important that Ms. Williams call Ms. Frye. Ms. Williams had not called Ms. Frye by the morning of February 24, 2011. Ms. Frye attempted to call Ms. Williams twice during the morning of February 24, 2011, and three times during the afternoon. On the last call, she left a message with Ms. Williams's sister that it was imperative that Ms. Williams call Ms. Frye that night or Ms. Frye could not help Ms. Williams. By March 4, 2011, the School still had not heard from Ms. Williams. Ms. Fisher sent Ms. Williams a letter dated March 4, 2011, stating that, because Ms. Williams had not contacted the School to request leave, Ms. Williams's absences since January 25, 2011, were considered as absences from duty without approved leave. Ms. Fisher advised Ms. Williams that, based on Ms. Williams's third and continuing absences, Ms. Fisher would recommend to the superintendent of schools that Ms. Williams's employment with the Seminole County Public Schools be terminated. When questioned at the final hearing concerning her reasoning for not requesting leave, Ms. Williams indicated that she wanted to work, but the School would not let her come back to work with light duty restrictions. She contacted her attorney and, based on his advice, did not request leave. Ms. Williams's employment is governed by the Official Agreement between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc., and the School Board (Agreement). Article VII of the Agreement provides: Section 4. * * * B. A regular 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. * * * Section 5. A. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following provided that 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 employees 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. * * * Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. * * * Section 15. Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension without pay. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommendation for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Ms. Williams's employment with the School Board. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue Whether or not Respondent is incompetent to teach as defined in Rule 6B-4.009(1)(a), Florida Administrative Code; and whether or not Respondent's alleged incompetency to teach and perform his duties constitutes just cause to terminate his employment and to terminate his continuing contract pursuant to Subsection 1012.33(4)(c), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner operates, controls, and supervises the free public schools of Brevard County, Florida. It has entered into individual and collective agreements with the teachers it employs and has published bylaws and policies that control the activities of its teaching professionals. Respondent is a teacher who was employed by Petitioner from 1976 until his termination in April 2003. He had taught at Palm Bay Elementary from 1984 until 2003. Respondent has a degree in health and physical education. Early in his teaching career he was a classroom teacher; he has taught physical education since 1984. Petitioner conducts annual and interim evaluations of its instructional personnel using a formal Instructional Personnel Performance Appraisal System. The system delineates specific areas of evaluation, the basis for evaluation, and overall performance scores. The system evaluates nine "performance areas": planning, instructional organization and development, presentation of subject matter, instructional communication, knowledge of subject matter, responsibilities, relationships, management of student conduct, and student evaluation. In addition, there is an overall evaluation. Administrative personnel, in the instant case, the principal and assistant principal, are trained to perform the instructional personnel evaluations. Teachers receive one of three ratings in each performance area: unsatisfactory, needs improvement, or effective. Typically, evaluations are done annually. During his teaching career, Respondent served under five principals. In 1998, Joan Holliday became principal of Palm Bay Elementary. An analysis of the performance evaluations of Respondent's first 22 years of teaching reflects that he was an "effective" and "exemplary" teacher (high ratings during the particular rating periods). The same evaluations reflect recurring, but not consistent, shortcomings in the areas of planning and related responsibilities. In Respondent's 1997-1998 annual evaluation, Principal Joseph F. Padula, Jr., who had evaluated Respondent from 1984 to 1998, rated him as unsatisfactory in "planning." Comments by Principal Padula describe Respondent's failure to meet the requirements of the Sunshine State Standards and show evidence of "maintaining pace with new curriculum requirements." Principal Joan Holliday's first opportunity to provide an annual evaluation of Respondent was in the 1998-1999 school year. Her assessment reflects Respondent as a teacher who effectively teaches physical education, but could improve in planning, organization, and "could benefit from newer philosophies in physical education." Respondent responded to his 1998-1999 evaluation by letter dated February 25, 1999. The letter is defensive and reflects his opinion that he is making attempts to improve but that he believes that he is an effective physical education teacher. Respondent's 1999-2000 evaluations (there were two interim evaluations during the 1999-2000 school year) reflect that he was responding positively to the previous critical assessments although he continued to struggle with his lesson plans. The evaluations indicate that he was continuing to effectively teach and interact with students. A 2000-2001 interim evaluation, dated December 11, 2000, contains an unsatisfactory rating. This occurs in the "relationships" assessment area and reflects an apparent problem Respondent has related to "kidding" students which was sometimes not well-received and resulted in sporadic complaints from parents. This rating appears to be incongruous with the effective rating he received in "management of student conduct" in the same evaluation. He continued to receive effective ratings in "presentation of subject matter" and "instructional communication." According to Petitioner's Instructional Personnel Performance Appraisal System, an effective rating describes performance of "high quality" and is the highest rating achievable. The annual evaluation for the 2000-2001 school year rates Respondent unsatisfactory in the "relationships" category. Respondent's "kidding" of students, which caused parental complaints that evoked evaluator's concern and was the apparent basis for the unsatisfactory rating in "relationships" in the 2000-2001 interim and annual evaluations, was clearly subject to interpretation. Testimony did not reveal any "kidding" which would have caused the undersigned to believe Respondent warranted an unsatisfactory rating as defined in the Performance Appraisal System's rating scale definitions. In addition, negative references to Respondent's interaction with "classroom teachers" is not borne out by the testimony. Respondent received five unsatisfactory ratings in his 2001-2002 school year evaluation. He is rated unsatisfactory in "planning," even though it is indicated that Respondent "does turn in his weekly lesson plans," and there is criticism of his failure "to integrate reading, mathematics and writing into [physical education] curricula." At the final hearing, Principal Holliday testified that Respondent's lesson plans for 2001-2002 and 2002-2003 were "adequate." He also is rated unsatisfactory in "responsibilities" and "relationships"; these ratings are supported by comments indicating perceived communications and cooperation problems with other faculty. These perceived communications and cooperation problems were not borne out by the testimony of faculty members. On March 11, 2003, immediately prior to his termination, Respondent received six unsatisfactory ratings on an interim appraisal. This interim appraisal is the only evaluation Respondent received during the 2002-2003 school year. The evaluator observes that Respondent continued to fail to indicate in lesson plans how he was integrating writing, reading, and mathematics into his physical education curriculum and that "developmentally appropriate activities should be planned and taught at each class." Respondent was rated unsatisfactory in "instructional communication"; during Principal Holliday's tenure, Respondent had been rated effective (the highest rating) in this area on five occasions. Comments in this category indicate that Respondent "addresses students in a loud, threatening voice." He was rated unsatisfactory in the "responsibilities" category. "Communication with classroom teachers" is referenced in the comments to this category. The unsatisfactory in "relationships" is referenced by a need to continue to "work on his written and oral communication skills with students, parents, and peers." Principal Holliday had determined late in the 2001- 2002 school year that she was going to recommend Respondent for termination by reason of incompetency. As a result, the evidentiary value of this last assessment is questionable. Principal Holliday acknowledges that most of her concerns with Respondent relate to "lesson planning and communication." If Respondent, in fact, had inappropriate communication with students, such communication reflects teacher misconduct, not incompetence. Her testimony reflects that she formally observed Respondent teaching his class infrequently and that when she formally observed, "he did everything he was supposed to do in a correct manner." Principal Holliday's opinions of Respondent's teaching abilities and utilization of new methodology are largely drawn from her review of his lesson plans, not observing Respondent teaching physical education to students. She is critical of Respondent's failure to implement new (sometimes controversial) physical education methodology; however, she acknowledges that none of these new educational theories are mandated. Respondent's lesson plans for his final teaching years were "adequate." As far as Principal Holliday knows all of Respondent's students met the Sunshine State Standards for physical education; the Sunshine State Standards were all noted in his plan book during the final years she evaluated Respondent. The ultimate goal of a teacher is to teach children, not to write lesson plans. During the period of their relationship as principal- teacher, Principal Holliday wrote 29 letters of reprimand to Respondent. There are 58 faculty members at Palm Bay Elementary; during the five years she was principal, Principal Holliday issued four letters of reprimand to other faculty members. Most of the letters of reprimand concern subjects that appear in Respondent's interim and annual evaluations. Six Palm Bay faculty members testified as witnesses for Respondent. They represent 115 cumulative years of teaching experience; each of their teaching careers at Palm Bay Elementary overlap Respondent's, giving each a familiarity with Respondent. While they did not assess Respondent's lesson plans, record and document production, and other administrative details solely in the cognizance of administration, they had ample opportunity to observe Respondent teaching his physical education classes, his interaction with students, his interaction with faculty, his attention to his faculty responsibilities, and other areas formally assessed by the Instructional Personnel Performance Appraisal System. These informal evaluators collectively report Respondent as "very dependable," having "good rapport with the faculty," appearing to have "well-planned classes," and responsive to suggestions [made by other faculty members] for physical education for younger children, "very helpful." One witness advised, "he jokes with the kids; talks with them in a way they understand." One witness offered the unsolicited comment, "we really consider him to be an asset to the school because of his rapport with some of the older children. It's really nice to have him there." A witness who had early morning bus duty with Respondent reported that he was punctual and dependable. Nothing reported by any of these teacher/witnesses suggests a lack of teaching competency; in fact, their testimony suggests that Respondent was a good teacher. The evidence presented by Respondent's teaching contemporaries, admittedly not trained evaluators, presents a dramatically different assessment of Respondent's teaching performance than does that offered by Petitioner. The testimony of Respondent's teaching peers is credible. The assistant principal, who authored critical interim evaluations, testified that she did not witness Respondent interact with any student in an inappropriate way, except that he spoke loudly on occasion; that when she observed him teaching, the children appeared to be learning; that he conducted class in an appropriate and effective way; and that, recently, he appeared to be complying with Sunshine State Standards in terms of developing students' physical skills.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Brevard County School Board, enter a final order finding that Respondent should not have been terminated and reinstating his continuing employment contract effective the date of his termination. DONE AND ENTERED this 13th day of October, 2003, 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 13th day of October, 2003. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Alan S. Diamond, Esquire Amari & Theriac, P.A. 96 Willard Street, Suite 302 Cocoa, Florida 32922 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699
