The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent for 15 days without pay and return her to an annual contract.
Findings Of Fact Ms. Gabriele has been employed by the School Board since October 13, 1997. As a member of the School Board's instructional staff, Ms. Gabriele's employment was subject to section 1012.33, which provides that her employment will not be suspended or terminated except for just cause. During the 2010-2011 school year, Ms. Gabriele was a teacher at Bashaw Elementary School (Bashaw). As a teacher, Ms. Gabriele was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures Manual of the School Board. On February 17, 2011, an Office of Professional Standards (OPS) file was opened regarding Ms. Gabriele based upon allegations that, on February 9, 2011, Ms. Gabriele asked a teacher's aide, Brenda Twinem (Ms. Twinem), in the presence of students, "Can I kill a kid today?", and, on February 16, 2011, Ms. Gabriele called a female student to the front of the classroom and yelled at her in the presence of other students and a parent. On April 18, 2011, another OPS file was opened regarding Ms. Gabriele based upon an allegation that she made intentional contact with a witness (Ms. Twinem) who was involved in a recent OPS investigation into the alleged misconduct of Ms. Gabriele. On April 19, 2011, the School Board notified Ms. Gabriele of its intent to place her on paid administrative leave pending the OPS investigation. On June 3, 2011, the superintendent notified Ms. Gabriele of his intent to recommend the suspension of her employment for 15 days without pay, the dates of which to be determined by her principal, and a return to annual contract status. The June 2011 AC notified Ms. Gabriele of the School Board's intent to suspend her employment and set forth the basis of the superintendent's recommendation for suspension. In the AC, the School Board charged that Ms. Gabriele had engaged in actions which constituted just cause under Section 6.11 of the Policies and Procedures Manual of the School Board. These actions included: immorality, misconduct in office, corporal punishment, excessive force, and violation of Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e). Joshua Bennett (Principal Bennett) became the principal of Bashaw in September 2010. Among his many other duties during the 2010-2011 school year, Principal Bennett was responsible for the supervision of the Bashaw teachers, including Ms. Gabriele, who was a fifth-grade teacher. Ms. Gabriele's class size fluctuated from 18 to 22 students during the 2010-2011 school year. It was noted that, during the math instruction period, there were changes in the number of students in her classroom, and it changed when Principal Bennett moved a student out of her class. Principal Bennett received some parent complaints and concerns regarding Ms. Gabriele shortly after he became Bashaw's principal. Based on these complaints, Principal Bennett collected information from the parents and decided to have an informal conversation with Ms. Gabriele. He also determined to walk through her classroom more frequently during the school year. Further, Principal Bennett recommended to Ms. Gabriele that she take some behavior management classes. Ms. Gabriele had the services of a paraprofessional (a/k/a a teacher's aide), Ms. Twinem, for a specific amount of time (40 to 50 minutes) during a particular day each week. While working for Ms. Gabriele as a paraprofessional, Ms. Twinem would check off homework, sort papers, grade papers, or work with groups of students as she was directed. In February 2011, Ms. Twinem approached Ms. Gabriele to provide her information. There were several students engaged in conversations in close proximity to Ms. Gabriele as she sat at her desk. According to Ms. Twinem, Ms. Twinem was standing beside Ms. Gabriele's desk when Ms. Gabriele looked at her and, in a frustrated tone, stated, "Can I kill a kid?" (Gabriele's Statement). Ms. Twinem was speechless because she thought it was inappropriate for Ms. Gabriele to make that statement in front of students. Ms. Twinem told Principal Bennett of Gabriele's Statement shortly thereafter. Ms. Twinem wrote her own account of Gabriele's Statement. Ms. Twinem's account contained her thought that Ms. Gabriele was joking, but she (Ms. Twinem) did not "know how it [Gabriele's Statement] was interpreted by the students." Clearly, at that time, Ms. Twinem had concerns about what the students thought of Gabriele's Statement. Ms. Gabriele admitted to making Gabriele's Statement. At hearing, she testified that, at the time she made the statement, the students were working with their partners, and it was loud in the classroom. After a student had asked her the same question several times, Ms. Gabriele made Gabriele's Statement. Although Ms. Gabriele testified that she was not frustrated, mad or upset when she made the statement, that she just made the statement "off-the-cuff kind of thing," this is not credible. According to Ms. Gabriele, the student's question involved a long-standing classroom practice of the students placing their completed assignments in a pink bin. If the student was indeed asking or questioning this long-standing practice, it would be natural for some type of frustration or exasperation to be expected. Ms. Gabriele conceded that, even if Gabriele's Statement had been made in jest or in a joking manner, it was inappropriate. Also in February 2011, Principal Bennett had a specific complaint involving a parent's (E.B.) observation during a visit to Ms. Gabriele's classroom. With Ms. Gabriele's knowledge that she was in the classroom, E.B. had come to pick up her student and to search for some misplaced homework in the classroom. E.B. observed a female student (later identified by the initials N.A.) go to the front of the classroom where Ms. Gabriele was yelling at her. E.B. described Ms. Gabriele's actions as ". . . really reaming the kid, . . . And she just didn't seem like she was letting up, and the child was just very distraught." E.B. observed N.A. to be "really teary eyed . . . Not in a full cry, but looked like she would break down." E.B. thought Ms. Gabriele's behavior was "pretty harsh," loud in a real demanding way, and fierce. E.B testified that, had Ms. Gabriele been yelling at E.B.'s student, she "probably would have yanked her in the hall and had a few words." E.B. was appalled at Ms. Gabriele's behavior and reported her observation to Principal Bennett. As a result of her conversation with Principal Bennett, E.B. followed up with a letter to the principal detailing what she had witnessed in Ms. Gabriele's classroom, as well as other observations she had while chaperoning a school field trip with Ms. Gabriele's class. E.B. requested to be kept informed of what action was being taken and volunteered to be in the classroom when her scheduled permitted. Shortly thereafter, an OPS investigation was opened regarding Ms. Gabriele. Debra Horne (Ms. Horne) is a specialist in the OPS. Ms. Horne conducted an investigation of E.B.'s classroom observation and Gabriele's Statement by interviewing Ms. Twinem; 11 students from Ms. Gabriele's class, including N.A.; and Ms. Gabriele. Ms. Twinem and the students' statements were taken on February 18, 2011, making them almost contemporaneous with the events. During the OPS interviews with the 11 students, all 11 stated that Ms. Gabriele yells at the students, and one student said her yelling was "extreme." Five of the students stated Ms. Gabriele embarrassed them or other students by her actions; four stated Ms. Gabriele called students different names, such as "toads," "toadettes," "hillbilly," or "baby"; and three said she made them cry or other students cry. During her OPS interview, N.A. stated that Ms. Gabriele had made her cry and that it embarrassed her a lot. N.A. further stated that Ms. Gabriele yelled at her and other students a lot.2/ During Ms. Twinem's OPS interview regarding Gabriele's Statement, she described Ms. Gabriele as being frustrated and using a frustrated tone when it was spoken. At the hearing Ms. Twinem also testified that she thought Gabriele's Statement was made "out of frustration," but that it was "inappropriate" nonetheless. Ms. Gabriele's OPS interview occurred on March 17, 2011. Ms. Horne conducted the OPS interview and followed her standard procedures in telling Ms. Gabriele the substance of the investigation. Aside from being told what her rights and duties were regarding the investigation, Ms. Gabriele was also reminded of the School Board policy regarding her cooperation with the investigation and her responsibility to not interfere with it or communicate with any witnesses to the investigation. Ms. Gabriele's interview included questions about E.B.'s letter, including E.B.'s classroom observations, and Gabriele's Statement. Ms. Gabriele confirmed she was aware that E.B.'s letter was sent "downtown." Ms. Gabriele maintained that she thought the only issue in the initial investigation was E.B.'s letter. This position is thwarted when one reviews her OPS interview wherein Ms. Gabriele was questioned about both E.B.'s letter and Gabriele's Statement. Although during the OPS interview Ms. Gabriele stated she did not remember the incident with N.A. crying, she did admit that if E.B.'s recollection of the incident with N.A. was correct that she, Ms. Gabriele, could "have handled it differently" by calling the student off to the side to discuss the issue. Also, during the OPS interview, Ms. Gabriele admitted that Gabriele's Statement was inappropriate when made to a coworker in the presence of students. Ms. Gabriele received a copy of the School Board's initial OPS investigative report in April 2011. Within that report, and through Ms. Gabriele's testimony, she acknowledged receipt of that investigative file,3/ which included all the information obtained during the initial OPS investigation, including her own interview regarding E.B.'s letter and Gabriele's Statement. In Section III of the initial OPS investigative report (for E.B.'s letter and Gabriele's Statement) and through her hearing testimony, Ms. Horne detailed her standard routine with respect to the description given to each witness at the start of his/her interview. Further, Ms. Horne advised School Board employees of their obligation to cooperate with the investigation as well as the School Board's Policy 6.13.4/ Ms. Gabriele testified that she was aware of the policies. On Monday morning, April 18, 2011, when Ms. Twinem reported to Ms. Gabriele's classroom to sort papers and check homework, she was subjected to questions by Ms. Gabriele regarding whether or not Ms. Twinem had, in fact, reported Gabriele's Statement to Principal Bennett. Ms. Gabriele testified she found out that Ms. Twinem was upset or bothered by Gabriele's Statement during one of her meetings with Principal Bennett. However, neither her testimony nor Principal Bennett's testimony reflected upon any meeting between those two on that Monday morning or the week prior for Ms. Gabriele to make that connection. Further, as Ms. Gabriele testified, she "obviously" knew that Ms. Twinem was the person who reported Gabriele's Statement, as she was the only other adult in the classroom at the time it was uttered. Ms. Twinem testified that she felt like "a deer in the headlights" when Ms. Gabriele asked her about reporting Gabriele's Statement. Ms. Twinem admitted to Ms. Gabriele that she had reported Gabriele's Statement to the principal "a long time ago." Ms. Twinem testified she was "anxious and nervous and like just didn't feel good" when Ms. Gabriele confronted her. Ms. Twinem reported this first encounter to Principal Bennett because she thought it should not have occurred. Later that same morning, Ms. Gabriele came into Ms. Twinem's office and told Ms. Twinem that she shouldn't tell anyone about their prior conversation because Ms. Gabriele could get in trouble. Ms. Twinem reported this second encounter to Principal Bennett. Still, later that same day when Ms. Twinem was in her office, Ms. Gabriele stood at the door and said that Ms. Twinem had gotten her (Ms. Gabriele) in trouble, because she had reported the second contact to the principal. Ms. Twinem reported this third contact to Principal Bennett. Principal Bennett testified that, after Ms. Twinem reported the first contact by Ms. Gabriele, he conferred with the OPS personnel as to what he should do. Based on direction from OPS, Principal Bennett hastily attempted to arrange a meeting with Ms. Gabriele to give her a verbal directive about contacting any witnesses involved with the investigation. Before the meeting could occur, Ms. Twinem reported that Ms. Gabriele had contacted her again. Prior to the third encounter, Principal Bennett issued a verbal directive to Ms. Gabriele about contacting any witnesses involved in the investigation. His directive included an admonishment "to cease and desist talking to the other employees about the OPS matter." Principal Bennett recounted that he told Ms. Gabriele that she was "not to talk to any other employees about the open investigation." Ms. Gabriele admitted she spoke with Ms. Twinem three times on April 18, 2011. Ms. Gabriele claimed that she did not understand who she could or could not talk to with respect to the investigation and that she only wanted to apologize for making Ms. Twinem upset about Gabriele's Statement. Ms. Gabriele admitted she knew it was Ms. Twinem who reported Gabriele's Statement to the principal. In the event Ms. Gabriele had questions about who she could or could not talk to, she had the opportunity to ask either Principal Bennett or Ms. Horne. Such dialogue apparently did not occur.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Manatee County School Board enter a final order suspending Ms. Gabriele for 15 days without pay and returning her to an annual contract. DONE AND ENTERED this 8th day of December, 2011, 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 8th day of December, 2011.
The Issue Whether Petitioner is entitled to an unpaid leave of absence from employment as a teacher of the Flagler School District, from July 1, 1996 until expiration of her commission as School Board member on November 19, 1996.
Findings Of Fact Petitioner is a teacher employed by the Flagler County School District. Petitioner has been employed for more than three years, has been recommended by the School Board and reappointed and has become eligible for, and has received, a Professional Services Contract with tenure. Petitioner has been employed by the Flagler County School System for six years. She is enrolled in the Florida Retirement System, and her eligible employment under that system consists entirely of her service in the Flagler County School System. Petitioner was appointed by the Governor as a School Board member on or about September 5, 1995. She had just begun School Year 1995-1996 as an elementary teacher at Bunnell Elementary School. Petitioner was appointed to serve as a School Board member until November 19, 1996. Her appointment expires upon the election and start of a member to fill the remaining two years of the term of a deceased member of the School Board. Following her appointment to the School Board, Petitioner applied for a leave of absence as teacher in order to take her position as a School Board member. Petitioner sought an unpaid leave of absence from the time of her appointment to the School Board until the end of the 1995-1996 School Year. The Superintendent recommended that her request be approved and the School Board approved it. At that time, the Superintendent made clear to her that any leave of absence beyond June 30, 1996 would be subject to the School Board's approval, notwithstanding the Superintendent's current or future recommendations. Petitioner's request for leave of absence near the commencement of School Year 1995-1996 presented no administrative inconvenience to the School District, and minimal disruption of the routine of her students. Petitioner was tendered renewal of her teaching contract for the 1996- 1997 School Year, apparently effective August 13, 1996. Petitioner timely applied to the Superintendent for an extension of her leave of absence as a teacher for that part of School Year 1996-1997 that overlapped the time up to the expiration of her term as a School Board member, November 19, 1996. The Superintendent recommended that Petitioner's request for extension of leave of absence without pay for the applicable portion of School Year 1996- 1997 be granted. In considering Petitioner's request for an extension of her leave of absence into School Year 1996-1997, the Superintendent considered the requirements of efficient operation of the School District, including tentative discussions with his staff about possible positions suitable to Petitioner's experience upon her projected return November 19, 1996 from her requested extended leave of absence. The position to which Petitioner has been appointed at Bunnell Elementary School commencing August 13, 1996 is not being held open by Respondent, but has been filled by another teacher irrespective of these proceedings. There is a tentatively identified position suitable to Petitioner's experience. Mr. Bowen, Director of Personnel, Transportation, and Insurance, opined that if the tentatively identified position were not filled until November 19, 1996, it might be disruptive to good education of the particular type of students targeted for the program. The School District has no imminent need to fill the tentatively identified position, but there is no guarantee it still will be available on November 19, 1996. In the interim, other positions may open through maternity leave, illness, death, etc. or they may not. On average, there are three or four teaching positions that open and that must be re-filled every school year. There is no evidence that a position which opens, if any, will be one for which Petitioner is qualified. If there is no position for which Petitioner is suitable available on November 19, 1996 she cannot be placed in Flagler County. Seniority has no effect; suitability by educational qualifications and credentials does. If Petitioner's leave of absence is not approved and she fails to commence work on August 13, 1996, she will forfeit her contract as a teacher. If, after November 19, 1996, Petitioner is neither a School Board member nor a teacher on approved leave of absence, she will no longer be covered by the Florida Retirement System. If Petitioner is denied leave and returns to the position which is now available she will lose no employment benefits. The Superintendent recommended to the Respondent Board that the extension of Petitioner's leave of absence be approved because of the extraordinary circumstance of her gubernatorial appointment to the position of School Board member, and because the requested leave period was for such a short portion of School Year 1996-1997, (approximately 96 days including weekends and autumn holidays when no teaching occurs), that it was acceptable within his expert educator administrative experience. On April 23, 1996, the Respondent School Board voted to refuse the Superintendent's recommendation to extend Petitioner's leave of absence without pay for the additional time she would otherwise be teaching. Petitioner's request was the only recommended leave request not approved at that School Board meeting. An extended leave for over one school year has not been granted by the Flagler County School Board since 1978. The Respondent Board had no evidence before it other than the Superintendent's recommendation when it considered the extension of Petitioner's leave. During the Superintendent's thirteen-year experience which has been since 1983, the Board has always accepted his recommendations with respect to leaves of absence. Due to the death of another School Board member and the inability of Petitioner to participate in the vote, only three Board members participated in the vote on the Superintendent's recommendation for extension of Petitioner's leave of absence. Member Dance moved that the leave be denied because the Board had never before granted an extended leave for an employee to accept a full time salaried position. The motion was approved by two members, Ms. Dance and Mr. Marier. The only "concerns" expressed by Ms. Dance and Mr. Marier, who testified at formal hearing, related to speculation and assumptions that Petitioner presented a case of first impression, certainly for their School Board and probably for the State of Florida, and that if Petitioner were granted an extended leave of absence, it might be difficult to administer the system in the event of a deluge of similar requests from teachers requesting leave without pay to take other salaried positions. Ms. Dance has served on the School Board for twelve years and felt that in a growing school system, such as the Flagler County School District, it is inefficient to remove teachers and then attempt to have positions made available to them upon return from leave. If extended leave is granted, Petitioner will not teach for roughly 96 days of the 1996-1997 School Year and will only teach in Flagler County if re- employed in a position actually available on November 19, 1996. See, Findings of Fact 12-16 supra. Superintendent Kaupke shared Ms. Dance's concern for orderly administration but still recommended approval of extended leave for Petitioner. On average, leaves of absence of varying duration are recommended and granted for a dozen or more teachers each School Year, and there are three to four permanent teacher replacements each year without any significant effect on efficiency of the system or disruption of the education of even elementary school students. In the past, the Superintendent has consistently denied requests of employees to take other salaried positions and the School Board has not granted any. In one instance, a teacher lied to Dr. Kaupe about his reason for requesting a leave of absence without pay and took a salaried teaching position in another state. The Superintendent would not have recommended a leave of absence be granted had he known the true circumstances. During her employment as a teacher, Petitioner also worked part-time in a separate job as a child care apprenticeship instructor. The School Board has no rules, policies or past precedents which forbid dual employment by school teachers, so long as the second job does not interfere with their responsibilities under their teaching contracts with the School Board. For the balance of 1996, all regular School Board meetings are scheduled to be held at 7:30 p.m. on the third Tuesday of each month. Although this schedule is subject to change, at the time of formal hearing herein, there were no scheduled events for School Board members during a school teacher's normal duty hours. Petitioner's requested extended leave of absence was volitional, but was not submitted for the purpose of accepting another salaried position which would physically prevent the performance of her duties as a teacher. Rather, it was submitted in order to conform to the requirements of Section 112.313(10) F.S. and the holding in Wright v. Commission on Ethics, 389 So.2d 662 (Fla. 1980).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Flagler County enter a Final Order granting Petitioner's request for extension of unpaid leave of absence through November 19, 1996. DONE AND ENTERED this 8th day of August, 1996, in Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1996.
The Issue The issue to be determined in this proceeding is whether Respondent is entitled to back pay following reinstatement to employment after suspension without pay.
Findings Of Fact At the final hearing, the parties stipulated to adopting the Findings of Fact from DOAH Case No. 17-4220, which are incorporated herein as follows: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.” Additional Findings of Fact While DOAH Case No. 17-4220 addressed the issue of whether the School Board had authority to suspend Mr. Warren without pay until final resolution of the criminal charge alleging a violation of section 812.014(2)(b)1., Florida Statutes, the issue of reinstatement and back pay were not at issue in that case. There was no evidence offered at hearing that the School Board offered Mr. Warren the opportunity to work in a location that does not have direct contact with students until the charges were resolved. Nearly five months after the Final Order was entered in DOAH Case No. 17-4220, the criminal charges, which served as the basis for Mr. Warren’s suspension without pay, were dismissed. As a result, the School Board reinstated Mr. Warren to his same position as a custodial worker, effective November 17, 2017. The School Board denied Mr. Warren back pay for the period he was suspended without pay. The School Board relied on its Rules and Procedure rule 2.04 (2017), when it approved the recommendation to suspend Mr. Warren without pay for the pending criminal charge. Rule 2.04 provides that “a record clear of disqualifying offenses as defined in section A . . . is required for employment or continued employment.” However, rule 2.04 fails to address the method of reinstatement or the condition upon which an employee would receive back pay if criminal allegations related to a potentially disqualifying offense were resolved favorably for the employee. The School Board has refused to award back pay to Mr. Warren on the basis that his criminal charges resulted from actions outside the scope of his employment. There is no written policy in rule 2.04 or otherwise that an existing employee who is suspended without pay for conduct that occurred outside the scope of his or her work environment is not entitled to back pay upon reinstatement. It is simply general practice. The assistant superintendent of human resources for the School District (Dr. Scott) and the general counsel (Ms. Waters) testified regarding the policy of not awarding back pay to reinstated employees after suspension without pay. Dr. Scott, who has served as the assistant superintendent of human resources for the School District since 2005, testified that “[g]enerally, if an employee is suspended without pay based on criminal charges or investigation of misconduct but in the scope of the employee’s position . . . and the employee is subsequently exonerated and reinstated, back pay will be awarded.” By contrast, “if an employee is suspended without pay pending criminal charges and/or investigation, potentially, unlawful conduct unrelated to the employee’s performance of their duties in his or employment, in the event the employee is reinstated, back pay is generally not award[ed].” Dr. Scott also testified that the District’s practice “can be a substitute” for a properly adopted rule. He acknowledged that the policy has not been approved by the School Board. Moreover, he acknowledged that the policy is not based on any adopted rule. Ms. Waters also testified about the policy of not awarding back pay. She testified that she “was not able to answer the question in the abstract” regarding whether the policy was generally applicable. She stated that it would be “a fact kind of question.” In this case, Mr. Warren was deprived of wages that he would have earned but for the suspension without pay for criminal charges that were later dismissed. There was much discussion at hearing regarding whether the School Board’s action of suspending Mr. Warren without pay should be considered discipline. Ms. Spika testified that the action of suspending Mr. Warren without pay is considered disciplinary action. Discipline is defined in the Collective Bargaining Agreement (“CBA”) as including suspension without pay. Discipline is also defined as corrective action to improve behavior. Here, the School Board did not consider Mr. Warren’s suspension without pay as disciplinary action as it was not intended to correct his work performance or work place conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that to the extent there is authority to do so, Mr. Warren should be reinstated and awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 16th day of May, 2019, 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 16th day of May, 2019.
The Issue The issue is whether Petitioner had just cause to terminate Respondent's employment.
Findings Of Fact At all times relevant to this proceeding, Respondent worked for Petitioner as a custodian at Petitioner's Longleaf Elementary School (Longleaf) in Pensacola, Florida. Respondent worked as a custodian at Longleaf for at least four years. Longleaf provides instruction to students from kindergarten through the 5th grade. The school has approximately 750 students and 37 certified teachers. In total, approximately 75 employees work at the school, including administrative staff, support personnel such as clerk-typists, teacher assistants, bus drivers, kitchen staff, and custodians. Longleaf has 35 classrooms. Five classrooms are located in each of five pods. The other classrooms are freestanding self-contained portables. In addition to the classrooms, Longleaf has numerous offices, halls, buildings, or structures including restrooms, kitchen facilities, and a cafeteria. At all times relevant here, Longleaf's custodial staff consisted of five employees, including Respondent and Willie Walker, the custodial supervisor/head custodian. On a normal school day, the custodian designated as the day mate arrived at the school at 7:00 a.m., to work an eight-hour shift. Respondent, Mr. Walker, and one other custodian began their shift around noon every day. Edward Jones, the fifth custodian, began his eight-hour shift at 3:00 p.m. Regardless of the time that the custodians began their shifts, the custodial team was responsible for cleaning 18,000 square feet of space per day. At the beginning of each school year, the custodians received individual work assignments. Each custodian, including Mr. Walker, was assigned specific rooms and outside areas to keep clean on a daily basis. They were also given additional duties on a weekly, monthly, and annual basis. Each custodian had a full day of work everyday. Occasionally, Petitioner will furnish a school with a substitute custodian when a regular custodian is absent. However, most of the time, substitute custodians are not available unless at least one-third of the staff is absent. Therefore, when only one custodian is absent, the custodial team has to take on additional work to cover the work assignments of the absent colleague. If two custodians are absent at the same time and no substitute is available, the remaining employees have to almost double their work schedule. When one custodian is out of work for a number of successive days, other custodians will also take time off. When the custodians are required to take on additional work assignments for long periods of time, they need time off to recoup from the extra work. The principal and the head custodian at each school are the only employees that Petitioner hires for twelve months. The remaining custodians usually start to work about two weeks before the students begin a new school year. They work for two weeks after the students finish a school year. The school year begins in July of one year and ends in June of the next year. When a school custodian requests a leave of absence for any reason, the school's principal must first approve or disapprove the request. The request form is then sent to Petitioner's human resource department. Next, the human resource department sends the request form to the school superintendent, who must approve or disapprove the requested leave. Petitioner, sitting as a collegial body, makes the final decision whether to approve or disapprove a request for leave of absence, with or without pay. Dr. Joyce Payton has been principal of Longleaf since 1997. In March 1999, Dr. Payton had a counseling session with Respondent. During the meeting, Dr. Payton and Respondent discussed the following: (a) Respondent's failure to record the accurate sign-in time when he arrived at work; and (b) Respondent's excessive tardiness. In June 1999, Respondent expressed his desire to transfer to another school because he could not get along with Mr. Walker. However, Respondent never submitted a formal request for a transfer to posted openings at other schools. In the summer of 1999, Respondent was arrested and charged with domestic battery. Respondent was placed on one year of probation with a $45 per month supervision fee. He was also required to complete 24 domestic violence classes at the cost of $15 per class. On August 9, 1999, Dr. Payton informed Respondent that all annual leave had to be approved by her in advance. She also stated that she would not approve any more sick leave for Respondent unless he called before 12:30 p.m., or furnished a doctor's note. Respondent was absent for 10 of the first 33 working days for the 1999-2000 school year. These absences took place between July 19, 1999, and September 1, 1999. Dr. Payton did not approve Petitioner's sick leave request form for three of these days, August 10-12, 1999, because he did not have a note containing a doctor's signature. The emergency room discharge instructions dated August 10, 1999, which was attached to Respondent's sick leave request form, states that Respondent should rest and avoid strenuous activity for the balance of that day. This discharge notice was not signed by a doctor and did not explain Respondent's absence on August 11 and 12, 1999. On September 1, 1999, Respondent was in an automobile accident. Between September 2, 1999, and November 30, 1999, Petitioner was out of work on approved sick leave for a total of 52 workdays. The doctor released Respondent to return to work with no restrictions on December 1, 1999. On January 3, 2000, Respondent requested sick leave for two hours on January 3, 2000, and for all day on January 4 and 5, 2000. The record does not contain a doctor's note to explain this absence. Respondent was absent even though Dr. Payton did not approve this leave request. On May 22, 2000, Dr. Payton meet with Respondent to assess his performance for the 1999-2000 school year. The rating form indicates that Respondent met the requirements of his job. However, the form contains the following comment by Dr. Payton: Mr. Sinkfield was out a total of 97 days this year. Fifty-two of these days were a result of a car accident. We have talked about the significance of his time at work improving next year. Respondent signed this document, indicating that he had an opportunity to discuss the assessment with his employer. In July 2000, Respondent was arrested for violation of probation on grounds that he had not completed all of the required domestic violence classes. He was allowed five days to settle his affairs before turning himself in on July 14, 2000. For several days, Respondent visited Longleaf in an effort to notify Dr. Payton about his impending incarceration. No one was in the school office during these visits. On July 14, 2000, Respondent's mother drove him to Longleaf to see if Dr. Payton was there. Finding no one at the school, Respondent's mother drove him to Petitioner's headquarters where Respondent spoke to Ms. Ella Sims, Petitioner's Assistant Superintendent for Human Resources. Respondent explained to Ms. Sims that he was going to be incarcerated and needed to request a leave of absence. Ms. Sims informed Respondent that he needed Dr. Payton's approval for a leave of absence. She did not give Respondent a leave of absence request form. Respondent's mother then drove him to his probation officer so that he could turn himself in. He was jailed without bond. Inmates at the Escambia County Jail are permitted to make outside telephone calls. However, inmates may only call numbers that they write on a list at the time they are booked. Inmates may add telephone numbers to this list only once every six weeks. The inmate telephone system is a fully automated system. Each completed local call costs one dollar. A call is completed when a person, answering machine, or other electronic device answers the call. Inmates may attempt up to ten local calls per day. Indigent inmates are allowed to make one completed telephone call every seven days. Inmates may make telephone calls with the assistance of a counselor or chaplain in certain verifiable emergency situations such as the death of a family member. When taken into custody, Respondent listed the telephone numbers of his family. He also included the telephone number of Longleaf. While in custody, Respondent successfully made telephone calls to his family. He was unsuccessful in completing a call to Dr. Payton at Longleaf. He could not get the counselor or chaplain to help him call the school. During the summer of 2000, Longleaf changed its telephone number. A person dialing the old number would get a recording announcing the new number. For some unexplained reason, Longleaf's change-of-number recording did not play when Respondent called the school using the old number. Respondent was unable to complete a telephone call to the school even when he amended his telephone list to include the school's new number. Because he was incarcerated, Respondent did not report to work on July 17, 2000, as required for the 2000-2001 school year. Respondent's mother called Dr. Payton that day to inform her that Respondent was in jail and would not report to work until at least September 2, 2001. Dr. Payton told Respondent's mother to have Respondent call the school from jail. Dr. Payton did not receive a telephone call from Respondent. She did not authorize leave for Respondent from July 17, 2001, forward in time. Instead, Dr. Payton decided to seek termination of Respondent's job. Respondent's mother visited Longleaf early in August of 2000. While she was at the school, Respondent's mother told Dr. Payton that Respondent could not call the school from jail. After talking to Respondent's probation officer, Dr. Payton told Respondent's mother that Respondent could call the school from the jail and that he needed to do so personally. Dr. Payton sent Respondent a memorandum dated August 4, 2000. The memo advised Respondent that disciplinary action was being considered due to his unauthorized absence and/or his excessive absence. Specifically, the memo states as follows: You failed to return as scheduled for further employment July 17, 2000. You did not notify your employer that you would not be at work as scheduled. You have been absent without authorization or approved leave since that date. You have previously been counseled regarding excessive absences. The memo gave Respondent the right to appear with a representative for a meeting in Dr. Payton's office on August 8, 2000. Petitioner hand-delivered the memo to Respondent. On or about August 10, 2000, Respondent sent Dr. Payton a letter. The letter states that Respondent expected to be in jail until he went back to court on September 1, 2000. Respondent requested Dr. Payton to keep his job if he could not get out of jail. Respondent did not request Dr. Payton to furnish him with leave-of-absence request forms. By letter dated August 29, 2000, Dr. Payton informed Respondent that a disciplinary action was being considered because of his unauthorized absence and/or his excessive absence. The letter reviewed the history of Respondent's absences for the 1999-2000 school year. The letter also stated that Respondent failed to notify Dr. Payton at home or at work that he would not be at work on July 17, 2000. Finally, the letter advised Respondent that there would be a meeting in Dr. Payton's office on September 1, 2000, and that Petitioner and his association representative had a right to attend the meeting. Petitioner hand-delivered this letter to Respondent. Petitioner sent Respondent a Notice of Disciplinary Action dated September 6, 2000, advising him of proposed action to dismiss him effective September 20, 2000. The proposed dismissal was based on the following: (a) excessive absences in the 1999-2000 school year; and (b) failing to report for work on July 17, 2000, and being absent without authorization since that time. On or about September 11, 2000, Respondent wrote a letter directed to Ms. Sims. In the letter, Respondent sought to postpone the consideration of his termination by Petitioner on September 19, 2000. On September 19, 2000, Petitioner approved Dr. Payton's recommendation to terminate Respondent's employment. Respondent was incarcerated until September 24, 2000. In extreme cases in which an employee is physically incapable of requesting a leave of absence in person, such as when an employee is in the hospital or in jail awaiting trial, Petitioner's department of human resources will, upon proper request, make accommodations to provide the employee with the necessary forms to request a leave of absence. In this case, Respondent was serving a sentence previously imposed; he was not awaiting trial. According to Petitioner's practice and procedure, being absent from work because of incarceration does not constitute an excused absence. If Respondent had asked Dr. Payton after he was incarcerated for a leave-of-absence form, she would have directed him to Petitioner's human resource department. She would have made this referral because she had already made the determination to seek termination of Respondent's employment. Under the facts here, Petitioner had just cause to terminate Respondent's employment even if he had timely applied for a leave of absence.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 June, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Mr. Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32597-1470 Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Mary F. Aspros, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301
The Issue Whether the Respondent's employment with the School Board of Dade County should be terminated.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Dade County School Board is responsible for operating, controlling, and supervising all public schools within the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997). Ms. Scott is employed by the School Board as a custodian. She began working for the School Board in 1990 as a part-time food service worker at South Dade, and, in early 1992, she began working at South Dade as a full-time custodian. Custodians are classified by the School Board as maintenance workers, and Ms. Scott was a member of AFSCME at all times material to this action. The school's head custodian is responsible for overseeing the day-to-day performance of the custodians, which includes assigning duties to each custodian and developing a schedule for each custodian identifying the tasks that must be accomplished during specified blocks of time. The schedule is approved by the principal of the school. John Alexander is, and was at all material times, the head custodian at South Dade and Ms. Scott's immediate supervisor. Ms. Scott's job responsibilities and duties included "policing" 2/ all ten girls' restrooms after each class change; policing the girls' locker room; policing certain other areas, including designated corridors, the auditorium lobby, the clinic, and the band area; cleaning five girls' restrooms after 2:00 p.m.; cleaning designated cafeteria windows; removing graffiti from walls, mirrors, and corridors as needed; cleaning and disinfecting the drinking fountains in all corridors; cleaning graffiti off walls and doors in the ten girls' restrooms; and cleaning, dusting, and mopping the audio-visual room. Ms. Scott was also expected to respond to emergencies. These duties were the same as those assigned to the female custodian whom Ms. Scott replaced and as those currently being performed by the woman who replaced Ms. Scott at South Dade. Ms. Scott's training consisted, first, of working for several weeks with the female custodian she was hired to replace. Then, after Ms. Scott's predecessor retired, Mr. Alexander worked with her for approximately two weeks. Mr. Alexander noticed problems in her job performance shortly after Ms. Scott began working as a custodian. In a memorandum dated May 12, 1992, Mr. Alexander identified two specific incidents when Ms. Scott refused to follow his instructions. He notified Ms. Scott in the memorandum that he would recommend her termination as of May 19, 1992, during her probationary period, for lack of motivation and failure to perform her job responsibilities. As a result of this memorandum, on May 19, 1992, Ms. Scott, Mr. Alexander and Dr. Paul Redlhammer, the principal of South Dade at that time, met to discuss Ms. Scott's job performance. After this meeting, Dr. Redlhammer sent Ms. Scott a "Memo of Understanding: Job Performance," in which he summarized the reasons for the concern about her job performance and notified her that Mr. Alexander would work with her for two weeks to help her improve her job performance. Mr. Alexander did not notice any improvement in Ms. Scott's work during the two-week period or thereafter. On February 3, 1993, Mr. Alexander had a discussion with Ms. Scott about leaving work early, failing to empty the trash cans in her areas, and failing to clean the floor in the audio- visual room. On May 21, 1993, Mr. Alexander issued a Notification of Written Warning to Ms. Scott regarding her unsatisfactory performance, which included insubordination, disrespect, and improper behavior. Mr. Alexander proposed that Ms. Scott's file be reviewed and that she be given an opportunity to explain her performance. Mr. Alexander intended to recommend her termination from employment. From September 24, 1993, through October 27, 1993, Mr. Alexander kept a log of the time Ms. Scott reported for work and left work each day. The log reflected that Ms. Scott left work thirty to forty-five minutes early on fifteen days during that period, that she took a forty-minute morning break one day, and that she reported for work between one hour and forty minutes and two and one-half hours late on three days. In Ms. Scott's November 15, 1993, annual evaluation, Mr. Alexander rated Ms. Scott poor in the categories of taking lunch and breaks at the proper times, cleaning bathrooms, washing windows, following orders, following work schedules, and working well with other custodians. Mr. Alexander discussed the evaluation and her deficiencies with Ms. Scott, and she acknowledged by her signature that she had seen the written evaluation. Ms. Scott's job performance did not improve during the 1994-1995 school year. Despite being told repeatedly not to do so, Ms. Scott spent inordinate amounts of time talking with school security monitors in the school's corridors and in the school's north parking lot, sometimes spending an hour or more a day in these conversations. During most of that time, Ms. Scott was not on authorized breaks or lunch period. At the same time, Ms. Scott often did not properly police the girls' bathrooms or clean the areas for which she was responsible, and, on several occasions, she refused to obey direct orders from Mr. Alexander. In September 1994, Orlando Gonzalez, the assistant principal at South Dade, scheduled an informal conference with Ms. Scott to discuss the deficiencies in her work performance, including an incident in which Mr. Gonzalez observed Ms. Scott watching television at 9:30 a.m. in the audio visual room. Ms. Scott left the school before the scheduled conference without permission. As a result of this behavior, Mr. Gonzalez requested that Donald Hoecherl, the new principal at South Dade, schedule a formal conference for the record to discuss "serious deficiencies in her job performance." Mr. Gonzalez later withdrew the request for the conference on the record because he thought he could accomplish more by counseling with Ms. Scott informally to help her improve her job performance. Nonetheless, a conference for the record was held by Mr. Hoecherl in November 1994 for the stated purpose of addressing "continuous incidents of insubordination, failure to complete assigned work, and leaving work early." Ms. Scott was advised by Mr. Hoecherl that, if the problems were not resolved, another conference for the record would be held and that he would formally request her dismissal. Ms. Scott refused to sign the conference summary. Ms. Scott's job performance did not improve after the November 1994 conference for the record. Mr. Hoecherl tried to work with Ms. Scott on an informal basis, but his efforts to improve her job performance were not successful. In April 1995, Mr. Gonzalez received complaints from two parents about the lack of cleanliness in the ladies' restroom in an area which Ms. Scott was responsible for cleaning. Mr. Gonzalez told Mr. Alexander to direct Ms. Scott to clean that restroom. The next day, Mr. Gonzalez found that the restroom had not been cleaned. Mr. Gonzalez prepared a memorandum to Ms. Scott directing her to clean the restroom. In June 1995, a Notification of Written Warning was directed to Ms. Scott because she refused to obey direct orders from Mr. Alexander. Ms. Scott's job performance deteriorated during the 1995-1996 school year. On October 5, 1995, a Notification of Written Warning was issued for "[f]ailure to follow and complete assigned work." On November 8, 1995, a conference for the record was held and was attended by Ms. Scott and two representatives of AFSCME, as well as by Mr. Hoecherl, and Mr. Gonzalez. Three issues were discussed: Ms. Scott's direct and implied insubordination when she refused an order by Mr. Alexander to clean up the clinic area after a student became ill and when she twice refused to comply with Mr. Hoecherl's request that she step into his office to discuss the incident; Ms. Scott's pattern of failing to complete her job assignments; and her pattern of loitering on the job by talking to the security monitors in the corridors and in the north parking lot. The written summary of the conference for the record, dated November 13, 1996, included the following: In an effort to resolve these issues the following directives were outlined: Comply with all requests and directives issued by your immediate supervisor or administrator. . . . In regard to this issue failure to comply with the direction of an administrator or immediate supervisor constitutes insubordination and will result in additional disciplinary action. Follow your job assignments as given to you prior to this conference and again at this conference. The cleaning must be performed in a satisfactory manner meeting the requirements to maintain a clean and healthy school setting. Failure to complete your job assignments will result in additional disciplinary action. Refrain from loitering while on the job. You are reminded that you may spend your break and lunch time in dialog with others if you wish. You are not entitled to spend an inordinate amount of time talking and not performing your job assignments. Failure to meet this condition will result in additional disciplinary action. Ms. Scott refused to sign the written summary of the conference. Ms. Scott's job performance did not improve after the conference, and she did not follow the directives outlined for her. She continued to talk with other employees at times when she had no scheduled break; she failed to perform or inadequately performed her assigned tasks; and she engaged in a pattern of arriving at work late without authorization, taking time off during her shift without authorization, and leaving work before the end of her shift without authorization. On or about February 16, 1996, Mr. Alexander attempted to discuss these problems with Ms. Scott. She became angry and belligerent. Mr. Alexander stood in front of his office door to prevent Ms. Scott from going out into the corridor because the students were changing classes and he felt it would not be appropriate for them to see her in that frame of mind, but she left his office anyway. Ms. Scott was immediately summoned for a meeting with Mr. Hoecherl and Mr. Alexander. During the meeting, a school police officer arrived in response to a 911 call, which Ms. Scott had made, accusing Mr. Alexander of restraining her against her will. The police officer determined that there was no basis for this charge, and Ms. Scott left the meeting in an angry and belligerent manner. Mr. Hoecherl referred this incident to the School Board's Office of Professional Standards. An administrative review was ordered, and Mr. Hoecherl was assigned to investigate the February 16 incident. On March 25, 1996, at Mr. Hoecherl's request, he and Ms. Scott met in his office. Mr. Hoecherl explained to Ms. Scott that he was trying to learn what had happened and wanted her to tell him her version of the incident. Ms. Scott became very agitated and left Mr. Hoecherl's office, slamming the door behind her. Her behavior as she left his office was very disruptive, but he nonetheless followed her to her car and asked that she return to his office to discuss the February 16 incident. Her response was belligerent and defiant, and Mr. Hoecherl told her to go home and not return to South Dade for the rest of the day. On the morning of March 26, Ms. Scott reported to work at South Dade. She was told that she had been reassigned to the Region VI administrative office and that she was not to return to the South Dade campus. In accordance with directions he received from the School Board's Office of Professional Standards, Mr. Hoecherl instructed Ms. Scott to report to the personnel director at the Region VI office. At approximately 8:00 a.m. on March 27, Ms. Scott appeared at the custodial office at South Dade. Mr. Hoecherl again told her to report to the Region VI office and provided her with written notification of her reassignment. Ms. Scott reported to the Region VI office, but, a short time later, she left and returned to South Dade. Ms. Scott was again told to leave the school grounds and informed that failure to do so would be considered gross insubordination; she refused to leave South Dade despite repeated orders from Mr. Hoecherl and the school police. Ms. Scott was belligerent and disruptive, and she was placed under arrest by the School Board police. She was escorted out of the school building in handcuffs; Mr. Hoecherl covered her shoulders with a jacket to hide the handcuffs from the students, but Ms. Scott attempted to shrug it off. In a memorandum dated March 28, 1996, to the Office of Professional Standards, Mr. Hoecherl detailed Ms. Scott's poor job performance from January 12, 1996, through March 25, 1996. A conference for the record was scheduled for March 29 at 2:00 p.m. by James Monroe, the Executive Director of the School Board's Office of Professional Standards. Ms. Scott failed to report for the conference even though she was contacted at her home by telephone shortly after 2:00 p.m. and told that they would wait for her for one hour. The conference for the record was rescheduled for April 4, 1996, and the topics to be discussed were identified in the notice as follows: "[Y]our failure to report for a conference on March 29, 1996, at 2:00 p.m., as previously directed . . .; failure to comply with site directives; unauthorized departure from the work site; attendance/performance related issues; medical fitness for continued employment and your future employment status with Dade County Public Schools." During the conference, Ms. Scott was advised that her employment status would be reviewed in light of the facts discussed at the conference, and she was directed to report to the Region VI office pending formal notification of the decision of the Superintendent of Schools and to perform all tasks and duties assigned to her. During the time she was assigned to the Region VI office, from April 1996 until September 1996, Ms. Scott disregarded instructions and directives from her supervisors, she failed to perform her job responsibilities or performed them inadequately, and she was absent from work a number of times without authorization. From September 1995 to September 1996, Ms. Scott was absent from her job without authorization for 20 days. She was absent from her job without authorization for three consecutive workdays from March 28 through April 1, August 23 through September 5, 1996. 3/ Ms. Scott was suspended by the School Board at its September 11, 1996, meeting. Mr. Alexander, Mr. Gonzalez, and Mr. Hoecherl tried for several years, through numerous informal memoranda and discussions, to help Ms. Scott bring her job performance up to an acceptable level. Ms. Scott was given several formal written notifications and warnings about the deficiencies in her job performance, and three formal conferences for the record were held to put Ms. Scott on notice of the perceived job deficiencies and of the complaints about her work and to allow her to explain the situation from her perspective. Ms. Scott did not comply with the directives for corrective action developed during the conferences for the record, and her attitude and job performance generally deteriorated from 1992 until September 1996, when she was suspended and dismissal proceedings instituted. The evidence presented by the School Board is sufficient to establish that Ms. Scott's job performance was deficient in that she failed to perform or inadequately performed her assigned job responsibilities; that on numerous occasions she refused to comply with requests and direct orders from the head custodian, from the assistant principal, and from the principal of South Dade; that she accumulated excessive unauthorized absences; and that she abandoned her position with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County issue a final order terminating Gale Scott's employment. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
Findings Of Fact At all times relevant thereto, Respondent, Jesse M. Black, was employed in an instructional capacity teaching mathematics at Nautilus Junior High School in Miami Beach, Florida, by Petitioner, the School Board of Dade County. He has been employed at that school since 1976. On or about March 28, 1979, Black was teaching a mathematics class in which one Bobby Jackson, aged 12 years, was a student. After the "tardy" bell had rung, Jackson entered the classroom. Instead of being seated Jackson went directly to the rear of the room and began "yelling" and "playing" with other students. After being told by Black to be seated all other students except Jackson sat down; however, Jackson continued to remain in the rear of the room to borrow a sheet of paper. He then started towards his desk which was at the front of the room and directly in front of Respondent's desk. By this time, Black was approximately 10 minutes late in beginning classroom instruction. In order to prevent any more disruption in the classroom, Black told Jackson to leave the room and reached over and placed his hands on Jackson to escort him to the hall where an assistant principal would take him to the principal's office. When Black placed his hands on the student, Jackson slipped and fell over his desk; however, Black did not use unreasonable force in dealing with the student. Jackson was later suspended from Nautilus for fighting and other disciplinary problems and new attends an Opportunity School in Dade County. On or about November 13, 1980, Black went to his classroom at approximately 6:45 a.m. to prepare an examination to be given that day to his students. At approximately 7:45 a.m. one Nicholas Catania, aged 13 years, entered the classroom. Because class did not begin until 8:30 a.m., Black advised him that he could remain in the classroom to study but otherwise would have to leave. After Catania had placed another student's books on top of a light fixture, Black tapped him on the shoulder and told him to leave the classroom. When class convened at 8:30 a.m. that morning and the Pledge of Allegiance was being conducted, Catania gave a Nazis Salute which prompted laughter in the classroom. After the Pledge of Allegiance was over Black went to Catania, grabbed him on the shoulder, and told him that what the Nazis did was not to be glorified. In the presence of four students, Black then pulled a closed pocketknife out of his pocket, placed it behind Catania's leg, and then replaced it in his pocket. When he did this, he was smiling and did not make the student feel threatened or in danger of physical harm. At no time was the blade on the knife ever opened or exposed. Black has been a public school teacher since September, 1957. His speciality is mathematics and he holds two degrees. His immediate supervisor characterized him as being a dedicated and well-prepared teacher. He was also described by another teacher as having an extensive educational preparation and one who possessed the skills to be a good teacher. Black has had an undisclosed number of problems with discipline in his classroom. He has also been counseled by his principal on several occasions at Nautilus concerning his management skills. However, there was no evidence to show that his effectiveness as a teacher had been impaired by virtue of the incidents herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found not guilty of the allegations in the Notice of Charges dated March 7, 1981, and that he be immediately reinstated be his teaching position with full back pay. DONE and ENTERED this 24th day of August, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 24th day of August, 1981. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3650 Biscayne Blvd., Suite 300 Miami, Florida 33137 William Du Fresne, Esquire 1782 One Biscayne Tower 2 South Biscayne Blvd. Miami, Florida 33131
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto, Respondent Susan L. Duerson was employed by Petitioner Miami-Dade County School Board as a School Clerk II, a position classified as an educational support employee pursuant to Article XXI, Section 3, of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade (the collective bargaining agreement). Respondent was initially employed by the School Board on November 15, 1996, as a part-time "skilled clerical" employee and assigned to Homestead Middle School. On November 10, 1997, Dr. Antonio T. Fernandez, the principal of Neva King Cooper Educational Center (hereinafter "NKC"), hired Respondent on a full-time basis as a School Clerk II. NKC is a special education center which serves profoundly mentally handicapped students. Because of their condition, many of the students at NKC are medically-fragile and require specialized attention. As a School Clerk II, Respondent was required, among other things, to maintain a wide variety of documents, forms, reports, evaluations, and business correspondence. As part of her duties, she was also responsible for maintaining attendance records; scheduling meetings, conferences and appointments between parents and instructional staff; and arranging bus transportation for the students at her school site. Approximately two months after being hired at NKC, Respondent suffered a stroke while hospitalized for kidney stones. From January 12, 1998, through June 19, 1998, Respondent was on medical leave due to a variety of health problems. Although Respondent was not eligible for an extended leave of absence due to her brief employment at NKC prior to her stroke, Dr. Fernandez, along with district administrators, approved Respondent's request for an extended leave of absence. On April 14, 1998, Respondent's treating physician notified Petitioner's Office of Professional Standards that Respondent was capable of performing most of her duties, but that as a result of her stroke, Respondent could not climb, could not grasp, and did not have finger dexterity of her right hand. Respondent also had difficulty remembering the daily tasks and duties that she was required to perform. On June 20, 1998, Respondent returned from her leave of absence and began working at NKC. Because of her physical limitations resulting from her stroke, Respondent sought accommodations from Petitioner in order to fulfill the essential requirements of her job. These requests were presented to Petitioner's District Consultative Committee. The Committee made recommendations in an attempt to provide Respondent with reasonable accommodations. On October 28, 1998, Petitioner approved several accommodations to assist Respondent in fulfilling her responsibilities, including providing a "Wanchik's writer," a "slip-on typing aid," a "day-timer," and a hand-held tape recorder. The tape recorder was provided to Respondent so that she could accurately copy messages for their intended recipients and track her assignments as Respondent frequently was unable to remember them. Respondent was given written instructions for assignments that were not routine in nature, was given the assistance of another employee in removing and replacing files for Respondent's use, and was allowed to leave work early three times a week so that she could attend physical therapy. Respondent's work performance, upon returning from her leave of absence and despite the accommodations provided to her, was unsatisfactory. Assignments were not completed in a timely fashion and were not accurately documented. For example, notices to parents were sent late and with the wrong student's information on them. On December 14, 1998, almost six months after returning from her leave of absence, Respondent was formally observed by her principal. Her work was found to be deficient in the areas of knowledge, quality of work, efficiency, dependability, judgment, attendance, and punctuality. During the December 14 observation, it was noted that Respondent failed to timely schedule conferences, failed to complete assigned tasks, and was unable to correctly process and prepare records required by her work site. Respondent's work was also found to be deficient with respect to her attendance data collection duties. Schools are required by law to maintain accurate attendance records. When they fail to do so, a school can loose funding. Due to Respondent's inability to maintain accurate attendance records, NKC lost funding for some of its programs. Respondent was also found to have problems correctly scheduling transportation for some of the students at NKC. At times, students would not be picked up as the necessary transportation was not requested by Respondent although she was required to do so. Respondent also had difficulty maintaining accurate records for students in the Exceptional Student Education program, particularly with regard to scheduling meetings with parents, staff members, and psychologists. Due to her unsatisfactory rating on December 14, 1998, Respondent was issued an interim evaluation which rated her as unsatisfactory for the 1998-99 school year. On January 11, 1999, a conference-for-the-record was held with Respondent to address her non-compliance with site directives, her unsatisfactory interim evaluation, her prescription for improvement of those deficiencies noted in the interim evaluation, and her future employment status with Petitioner. She was informed that her failure to correct those deficiencies would result in disciplinary action. On April 22, 1999, another conference-for-the-record was held with Respondent to address her non-compliance with site directives and to review her performance to date, together with the status of her prescription and her future employment. She was advised of her continuing failure to complete her duties in a satisfactory and timely manner. Respondent was issued a new prescription for improvement of her performance, which was based upon her supervisor's observations of her performance since Respondent's prior formal observation on December 4, 1998. She was advised that the prescriptive activities assigned to her must be completed by the agreed-upon deadlines and that her failure to remedy her deficiencies would lead to disciplinary action, including dismissal. By the time of the April 22 conference, Respondent had been working at NKC for ten months, exclusive of the period of time that she had been on a leave of absence. Nonetheless, she was still exhibiting the same or similar deficiencies that had been noted in her first evaluation. After student records could not be located at the school due to Respondent having taken them home, she was issued a written directive on May 10, 1999, ordering her not to remove permanent student records from the school site. Respondent had previously been directed not to take student records to her home but had disregarded that directive. Accordingly, the May 10 directive advised Respondent that failure to comply with the directive again would be considered an act of insubordination and might lead to further disciplinary action. On May 11, 1999, Respondent was reminded of the accommodations that had been provided her in order that she could perform the duties of her position in an effective manner. Although Respondent was allowed to leave early to attend physical therapy sessions and was provided the assistance of office personnel in removing and replacing files, her supervisor noted that Respondent--of her own volition--had not taken advantage of many of the accommodations provided by her work site. Respondent admitted that she had not taken the adaptive devices that had been purchased as part of her accommodations to her physical therapist, who was to have these devices adjusted so that they fit her properly. Since Respondent's performance had not improved, and since Respondent repeatedly made the same mistakes, her principal urged her to take advantage of the accommodations provided her. After Respondent's excessive absenteeism began to have a detrimental effect on her work, on May 21, 1999, Respondent was issued a written directive advising her of her failure to maintain appropriate attendance and requiring Respondent to notify her work site of her employment intentions, i.e., whether Respondent was going to return to work or take another leave of absence. As of that date, she had accumulated over forty absences. On May 25, 1999, Respondent met with the principal and requested a second leave of absence. She and her doctor believed that she needed to take a leave of absence until May 10, 2000, due to the alleged stress brought on by her duties. Respondent was still on prescription for improvement of her performance at the time she took a second medical leave of absence effective from May 10, 1999, through May 9, 2000. On May 9, 2000, a conference-for-the-record was held with Respondent at the Office of Professional Standards to address her medical fitness to return to duty, to review her employment history, and to address her future employment status with Petitioner. Due to her prior medical history, including her having fallen at her work site on two occasions, she was required to show that she was medically fit to return to her regular duties. At the May 9 conference, Respondent's medical fitness was addressed. Respondent's doctor had cleared her to return to work and advised that Respondent's only limitation was that she could only type with one hand on a left-handed keyboard. The Office of Professional Standards cleared Respondent to return to work. At the conference, Respondent was advised that her prescriptive status would be removed so that she could start anew but that her performance would continue to be monitored throughout the school year. She was directed to maintain regular attendance and was told that all intended absences must be communicated to her principal or his secretary. She was also advised that all absences for illness must be documented by her treating physician. She was informed that her non-compliance with the directives issued at this conference would lead to disciplinary action. On June 8, 2000, approximately a month after she returned from her second leave of absence, a meeting was held with Respondent to address numerous errors she committed while performing her daily tasks. She was advised that she had lost certain records and had failed to properly notify parents of conferences involving students in the exceptional student education program. She was reminded that her failure to properly notice these conferences could expose the school district to liability. In order to assist Respondent to improve her performance and to insure that errors would not continue to occur, she was directed to meet with the assistant principal on a daily basis. On June 20, 2000, Respondent was provided with additional accommodations to assist her in performing her duties. She was advised that a left-handed keyboard would be purchased for her, that she would continue to be provided the assistance of another employee to remove and replace files for her, that she was to continue tape-recording her assignments as a reminder to herself of the tasks that she must complete, and that she would continue to receive written instructions with regard to non-routine assignments. On July 14, 2000, another tape recorder was purchased for Respondent since the one previously issued to her had been lost. She was also issued a new day-timer calendar to keep track of her daily assignments. Over a year after her previous evaluation, on July 27, 2000, Respondent was formally evaluated and was again found to be unsatisfactory in the categories of quality of work, efficiency, and dependability. She was issued a new prescription to assist her in improving her performance. She was required to keep a log of her files since she continued to lose documents and had, by this point, lost a complete file. As a result of her unsatisfactory evaluation, on July 27, 2000, a conference-for-the-record was held with Respondent to address her performance, her interim evaluation, and her future employment with Petitioner. She was advised of her continued inability to perform her daily duties and that her failure to improve would lead to disciplinary action. On September 20, 2000, a conference-for-the-record was held to address Respondent's performance, to review the prescriptive activities assigned to her during the conference held on July 27, and to address her future employment. By the time of that conference, more than four months after Respondent had returned from her second leave of absence, her work performance had not improved. During the September 20 conference, Respondent was advised of her continuing failure to correctly input student attendance information and to provide adequate and timely notice of parent conferences. She was also reminded of the importance of using her school-issued tape recorder in order for her to minimize mistakes and to accurately process information. In order to assist her in improving her performance and in completing her prescriptive activities, the deadline for completing the prescription was extended to October 27, 2000. On October 23, 2000, Respondent was given written notice of her repeated failure to properly send parental notices of conferences and "staffings." She was directed to rectify these deficiencies and to continue to meet with the assistant principal for further assistance. She was advised that if she needed additional assistance, it would be provided to her. On November 16, 2000, another conference-for-the- record was held with Respondent to address her performance and to review the status of the prescription that had been issued at the conference-for-the-record held on July 27. She was advised of her continued deficiencies, which included incorrectly inputting attendance dates, improperly responding to administrative requests, improperly dating time-sensitive material, and failing to give adequate parental notice for school "staffings." She was also issued an addendum to the July 27 prescription. Respondent was further advised that she had failed to complete the prescriptive activities that had been previously issued but that in another effort to assist her, the deadline for completing those activities would be extended to January 12, 2001. Respondent was further advised that her failure to overcome her performance deficiencies would lead to disciplinary action. Respondent acknowledged the support and assistance that the office staff had given her and thanked the principal for all of his support. On December 1, 2000, Respondent, after failing to provide timely notice of a conference with a parent and failing to provide notice of a meeting with another parent, was again reminded by the assistant principal that part of her duties was to provide adequate and timely notice of staff conferences with parents. On December 12, 2000, Respondent was notified in writing that she had failed to complete the prescriptive activities that had been assigned to her on July 27 and amended on November 16. Among other things, Respondent had failed to keep a log of her files and had failed to notify staff and parents of scheduled meetings. Respondent had still failed to make use of her tape recorder. On January 16, 2001, a conference-for-the-record was held with Respondent to address her performance and to review the status of her prescriptive activities and her future employment status. She was advised that her performance had not improved and that her repeated failure to complete her prescriptive activities despite three extensions of time was considered insubordination. Respondent was also advised that her failure to improve her overall performance mandated a recommendation for disciplinary action, which could include dismissal. On March 8, 2001, a conference-for-the-record was held with Respondent at the Office of Professional Standards to address her performance, her non-compliance with site directives, and her professional responsibilities. She was advised that although she had been on prescription for a significant portion of the year, she had failed to correct her deficiencies and improve her performance. As a result of her continuing unsatisfactory performance, she was advised that a recommendation for disciplinary action, including dismissal, would be submitted to the School Board. On March 22, 2001, Respondent's principal recommended that due to her inability to complete her prescriptive activities or to correct her performance deficiencies in spite of continuous support and assistance at the work site, her employment by Petitioner should be terminated. After she continued to accrue excessive and unauthorized absences, on May 9, 2001, Respondent was again reminded of prior directives that she report to work on a regular basis; that if she was to be absent, she needed to communicate that fact to school administrators; and that Respondent provide documentation for any absence alleged to be related to illness. She was also advised that her excessive absenteeism and her repeated failure to comply with administrative directives regarding her absences would lead to disciplinary action, including dismissal. On June 20, 2001, the School Board of Miami-Dade County, Florida, took action to suspend Respondent and initiate dismissal proceedings against Respondent for just cause.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension, denying any claim for back pay, and dismissing Respondent from her employment by the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 3rd day of April, 2002, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 3rd day of April, 2002. COPIES FURNISHED: Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Susan L. Duerson 15601 Southwest 137th Avenue, No. 306 Miami, Florida 33177 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Room 912 Miami, Florida 33132-1308
The Issue Did the Hendry County School Board (Board) have just cause to terminate Respondent from her employment as a paraprofessional teacher's aide?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent was employed by the HCSD as a paraprofessional teacher's aide at LMS. The employment relationship between the Board and Respondent is subject to the terms and conditions of the Collective Bargaining Agreement Article 8, Section 8.013, Collective Bargaining Agreement, provides that "when an employee has completed three (3) years of the past five (5) with satisfactory service with the Hendry County School Board . . . and has been appointed for a subsequent year, he [sic] will be eligible for continued employment status, which status will continue year to year unless the Board terminates the employee for just cause (Emphasis furnished). Respondent was first employed with the HCSD on August 18, 1986, and worked continuously through May 25, 1999, when she was terminated. Since Respondent achieved "continued employment status," she can only be terminated for "just cause." The Board terminated Respondent for "failure to perform assigned duties in a satisfactory manner" and "other sufficient cause" under School Board Policies and Procedures 218. There were no written evaluations of Respondent's performance accomplished during the first 9 years of Respondent's employment with the HCSD because the Board did not adopt its current policy until approximately 1996. However, there is no evidence that Respondent's work performance was unsatisfactory during the first 9 years of her employment with the HCSD. Respondent worked at LMS for each of those nine years of her employment with the HCSD and was routinely re-appointed for each ensuing year. The first 2 years of her employment, Respondent was assigned to work with students that were classified as "trainable mentally handicapped." Respondent had to assist these students in learning rudimentary skills such as brushing their teeth and changing their underwear. From the fall of 1988 until the spring of 1992, the equivalent of 4 school years, Respondent was assigned to the "Time Out Room." The assignment to the "Time-Out Room" was not punitive in nature, or the result of unsatisfactory work performance by Respondent. Disruptive students that caused a problem in the classroom were sent to the "Time-Out Room." The students went in the "Time-Out Room" for one period after which they usually would return to their regular class. Although Respondent was employed as a "Teacher's Aide" for exceptional education students with special needs she did not assist a teacher, but ran the "Time-Out Room" alone. After 4 years working in the "Time-Out Room," Respondent was assigned to Internal Suspension. The "Time-Out Room" was eliminated, and replaced with Internal Suspension. Internal Suspension was used as a form of discipline for students who violated school policy. Students were sent to Internal Suspension anywhere from 2 to 10 days. Internal Suspension was conducted in a double-wide trailer behind LMS. Respondent again was by herself in Internal Suspension and was not assisting a teacher. The first documentation of any performance deficiency by Respondent consists of a Procedure for Improvement form and a Special Non-Instructional Personnel Evaluation form, both dated January 22, 1996. The forms were prepared by James C. Allen, Principal of the LMS. The Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent achieved a "satisfactory" designation for 6 areas and a "Needs Improvement" in "Quality of Work" and "Work Attitude." The deficiencies specified in the Procedures for Improvement form are: "Harshness in speaking with staff and students, assisting students with academic work, unacceptable activities in classroom, needlepoint, police scanner." The Procedures for Improvement form provided that Respondent had the "95/96 school year" to improve, and that Mr. Allen would "Recommend dismissal" if the deficiencies were not improved. Respondent successfully improved her performance. On March 21, 1996, Mr. Allen wrote a letter to Respondent's union representative, with a copy to Respondent, stating that "I too am optimistic that improvement has occurred." On April 1, 1996, Mr. Allen wrote directly to Respondent expressing concern about "complaints/concerns" received about her conduct on a Beta Club trip to Washington, D.C., but stating, in pertinent part: These concerns cannot be overlooked, however, since we initiated procedures for improvement January 22, 1996, which dealt specifically with harshness in speaking with students/staff. Improvement has been noted. It must also be pointed out that Ms Dankanich (Beta Club sponsor) and some staff members felt that you did a good job in controlling your students and watching out for their safety and welfare. (Emphasis furnished). The March and April 1996 letters from Mr. Allen were included in Respondent's personnel file. Also included in the personnel file were letters from the Beta Club sponsor for the Washington, D.C. trip and a chaperone. These letters stated that Respondent spoke to students and adults and conducted herself in an appropriate manner throughout the trip. Respondent's annual "Overall Evaluation" for the 1995-1996 school year was "Satisfactory." Mr. Allen checked the box entitled "Reappoint based on employee's willingness to improve job dimensions not satisfactory." Respondent attained a "Satisfactory" score on 6 out of eight areas listed for job dimension with "Quality of Work" and Work Attitude" checked-off for "Needs Improvement." Respondent was reappointed and returned to LMS for the 1996-1997 school year. Respondent was assigned to assist with the "trainable mentally handicapped" students after having been on her own in the "Time-Out Room" and Internal Suspension for 8 years and working with Exceptional Student Education (ESE) students. This assignment required an adjustment for Respondent. On February 11, 1997, Allen presented Respondent with another Procedures for Improvement form and Special Non- Instructional Personnel Evaluation form. As in the preceding year, the Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent "Needs Improvement" in "Quality of Work" and "Work Attitude." The Procedures for Improvement form identified deficiencies as "failure to perform assigned duties in a satisfactory manner, harshness in speaking with students/staff; unacceptable activities in classroom," and afforded Respondent the 96\97 school year to improve or be recommended for dismissal. Respondent wrote on both forms that she did not agree with them. In April 1997, 12 professional colleagues of Respondent wrote letters of support. These letters were included in Respondent's personnel file. The letters vouch for Respondent's professionalism and many stated that Respondent never was observed to engage in improper conduct or exhibit inappropriate speech or tone of voice. Throughout the second semester of the 1996-1997 school year, Respondent worked 2 class periods as a teacher's aide for Erin Berg-Hayes. Ms. Berg-Hayes was a sixth grade ESE teacher. Ms. Berg-Hayes testified that Respondent's job performance during the 1996-1997 school year was satisfactory. Respondent did not receive annual evaluation for the 1996-1997 school year. Since Respondent was not told otherwise, Respondent assumed she had improved her performance to Mr. Allen's satisfaction. Respondent received a letter of appointment at the end of the 1996-1997 school year and was reappointed for the 1997-1998 school year. For the 1997-1998 school year, the sixth grade students at LMS were moved to the Sixth Grade Center (SGC). Jodi Bell assistant principal at LMS was assigned to administer the SGC. Mr. Allen remained as principal at the LMS which consisted of seventh and eighth grade students. Respondent worked as Erin Berg-Hayes' full-time aide for the 1997-1998 school year. Respondent and Ms. Berg-Hayes were assigned to the SGC. Ms. Berg-Hayes characterized Respondent's job performance during the 1997-1998 school year as "good." When Ms. Bell prepared Respondent's annual evaluation, Ms. Berg-Hayes advised Ms. Bell that she was "pleased" with Respondent's performance and "on the overall [Respondent's] performance was good and satisfactory." Ms. Bell prepared Respondent's 1997-1998 annual evaluation for the 1997-1998 school year. Ms. Bell checked off "satisfactory" in the 8 areas designated for assessment. There were no check marks in the "Needs Improvement" column. On the 1997-1998 annual evaluation, Ms. Bell checked the box for "Satisfactory" as Respondent's "Overall Evaluation," and also checked the box for "Reappoint for next year." In the section entitled "Comments by Evaluator," Ms. Bell wrote: "I have appreciated your willingness to go above what is expected and help wherever help is needed. Keep up the good work!" Respondent returned to the SGC as Ms. Berg-Hayes' Aide in the 1998-1999 school year. Ms. Berg-Hayes and Respondent worked together for the fall semester after which Respondent requested to be reassigned. Respondent attributed this to a personality clash with Ms. Berg-Hayes that started in July 1998. Ms. Berg-Hayes testified that Respondent's performance declined in the 1998-1999 school year. Cathy Lipford, teacher's aide at SGC, who worked together with Ms. Berg-Hayes and Respondent for one period during the entire fall semester in the 1998-1999 school year did not observe a problem with Respondent's work performance. This teachers' aide was aware of some tension between Respondent and Ms. Berg-Hayes. However, this aide testified that Respondent appeared to take the initiative, and assisted students, and the aide never observed Respondent speaking inappropriately to students. Ms. Berg-Hayes did not prepare any documentation of Respondent's alleged performance deficiencies during the fall semester of the 1998-1999 school year. Ms. Berg-Hayes was not consulted about Respondent's performance by Mr. Allen, the former principal of LMS or Mr. Cooper, the current principal of LMS at the time Respondent's performance was evaluated for the 1998-1999 school year, when it was decided to recommend dismissal of Respondent for failure to perform her assigned duties or other sufficient cause. During the spring semester of the 1998-1999 school year, Respondent was assigned as an aide to Dorothy Lomago, a varying exceptionalities teacher for seventh and eighth grade students. Respondent and Ms. Lomago worked together from January 1999 through May 1999. Ms. Lomago had been employed by the Board for 25 years. Prior to Respondent, Ms. Lomago only had had 2 other teaching assistants. Ms. Lomago considers compassion for children and initiative as the most important characteristics for a teacher's aide in special education. Ms. Lomago rated Respondent's performance in those areas as "ineffective." Ms. Lomago considered Respondent adequate in performing clerical tasks such as copying papers and grading papers. Ms. Lomago did not document Respondent's performance deficiencies. Ms. Lomago neither counseled nor corrected Respondent. Likewise, Ms. Lomago never brought to Respondent's attention the things she believed Respondent failed to do or did wrong. Ms. Lomago merely did what she was told to do by Mr. Cooper when he arrived at LMS in March 1999. On March 31, 1999, Respondent went to Mr. Allen's office for her 1998-1999 annual evaluation. R. Scott Cooper, assistant principal, Ms. Jodi Bell, assistant principal, Mr. Allen, and Ms. Davis, assistant principal were present in Mr. Allen's office upon Respondent's arrival. This meeting was terminated after Mr. Allen indicated there was a problem and asked Respondent if she wanted union representation. Respondent replied that she thought it would be wise. Before the meeting on March 31, 1999, Respondent was not aware that her job performance was considered deficient. Respondent had not been told of any deficiencies and had not received any counseling. In March/April 1999, Mr. Allen retired, and was replaced as principal of LMS by Mr. Cooper. Mr. Cooper arrived at LMS some time in the last 2 weeks of March 1999. Respondent and Mr. Cooper had had no professional contact before March 1999. Mr. Cooper met with Respondent on April 16, 1999, for Respondent's 1998-1999 annual evaluation. Mr. Cooper gave Respondent 4 separate Procedures for Improvement forms and an Annual Non-Instructional Personnel Evaluation form. This was Respondent's first notice of her specific performance deficiencies for the 1998-1999 school year. Mr. Cooper never conducted a formal observation of Respondent's job performance. Mr. Cooper based the annual evaluation predominantly on a review of the school board records, and on discussions with Mr. Allen, Ms. Bell, and Ms. Davis. The Procedures for Improvement forms specified the following deficiencies: "Work Attitude - able to successfully work with co-workers and students"; "Initiate Resourcefulness - ability to identify what needs to be done"; ""Dependability"; and "Quality of Work." The forms identified the following means of judging success in overcoming the foregoing deficiencies, respectively. "Supervisors will observe appropriate student/aide interactions in all circumstances"; "decreased necessity for teacher/supervisor to redirect Ms. Bennett's activities"; "Ms. Bennett will demonstrate the ability to effective [sic] facilitate school functions - adhere to work requirements"; and "Higher quality of work - decrease in errors." As a Statement of Assistance Offered, all of the forms provided: "Ms. Bennett may meet with Mr. Cooper weekly to obtain suggestions and assistance" Respondent was given until May 10, 1999, to improve her deficiencies. This was a period of 3 weeks or 15 school days. On Respondent's Annual Non-Instructional Personnel form, Mr. Cooper checked-off 4 out of 8 areas for "Needs Improvement" with "Satisfactory" checked for the remaining 4 areas. Mr. Allen checked "Unsatisfactory" for the "Overall Evaluation" and checked the box "Dismissal." Respondent noted her disagreement with the evaluation. On May 19, 1999, Mr. Cooper formally recommended dismissal of Respondent. Respondent received a Notice of Recommendation of Dismissal on that date. The Board approved Respondent's dismissal on May 25, 1999. During the 3 week period Respondent was given to improve her performance, neither Mr. Cooper nor any other administrator met with Respondent to advise her as to whether she was improving. There is no documentation whatsoever of Respondent's lack of improvement. During the 3 weeks Respondent was to improve her performance, she received repeated assurance from Ms. Lomago that they would be working together the following year. Ms. Lomago never advised Respondent that her performance continued to be unsatisfactory. Likewise, no one from the Board or any school administrator advised Respondent that she was not complying with the Procedures for Improvement or that her work continued to be unsatisfactory. Not hearing otherwise, Respondent considered her work to be satisfactory and did not meet with Mr. Cooper to obtain suggestions and assistance. The evidence does not establish that Respondent failed to perform her assigned duties in a satisfactory manner during the 1998-1999 school year or that the Board had just cause or any other sufficient cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board reinstate the employment of Annette Bennett-Edwards and provide for back pay and benefits retroactive to May 25, 1999. DONE AND ENTERED this 6th of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2000. COPIES FURNISHED: Edward A. Upthegrove Superintendent Hendry County School District Post Office Box 1980 LaBelle, Florida 33935-1980 Richard G. Groff, Esquire Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206 Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2989 Fort Myers, Florida 33902-2089
