The Issue Whether the Respondent committed the violations alleged in the Second Amended Notice of Specific Charges filed by the Petitioner on March 15, 2001, and, if so, the penalty that should be imposed.
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 School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. At all times material to this proceeding, Ms. McElrath was employed as a teacher by the School Board and assigned to Miami Jackson, where she taught for almost 13 years. Ms. McElrath taught English, and she was the coach of the Miami Jackson debate team for one year and the advisor for the student newspaper for six years. She has consistently been rated acceptable in teaching and in professional responsibility in her annual evaluations at Miami Jackson. Ms. McElrath is employed by the School Board under a professional service contract. Prior to the incident that is the subject of these proceedings, Ms. McElrath had never been the subject of a School Board personnel investigation. She was known to her colleagues as a friendly person and had never displayed violent behavior. Thomas Rolle is a computer specialist employed by the School Board and assigned to Miami Jackson. Mr. Rolle's duties include trouble-shooting and maintaining the computers at Miami Jackson and administering the computer network. Mr. Rolle is blind in his left eye and is severely hearing impaired. He wears hearing aids in both ears; he can also read lips and understand a speaker in a face-to-face conversation. About three weeks prior to February 23, 2000, Mr. Rolle was conducting a computer survey at Miami Jackson to determine which computers needed to be configured for the school's Internet connection. When he arrived at Ms. McElrath's classroom, the class was watching a video on television, and the classroom was dark. Mr. Rolle also noticed that the computer and the Internet connection drop were on opposite sides of the classroom. Ms. McElrath told Mr. Rolle that she would move the computer closer to the Internet connection drop and that he should come back later to work on the computer. About ten days later, Ms. McElrath passed Mr. Rolle in the hallway, and Ms. McElrath told Mr. Rolle that she had moved the computer in her classroom. Ms. McElrath asked that Mr. Rolle come to her classroom to configure the computer. Ms. McElrath felt that her class was getting behind because there was no Internet connection in her classroom. Mr. Rolle did not go to Ms. McElrath's classroom as she had requested. Shortly before 11:00 a.m. on February 23, 2000, Ms. McElrath went to Dr. Choate, Mr. Rolle's supervisor, and asked if Dr. Choate could expedite Mr. Rolle's visit to her classroom to configure her computer. While Ms. McElrath was in Dr. Choate's office, Dr. Choate paged Mr. Rolle, and he immediately called back. Dr. Choate asked Mr. Rolle if he could go to Ms. McElrath's classroom; he told her that he was working in Room 137, the Language Arts lab, but that he would be finished soon and would go to Ms. McElrath's classroom in about 30 minutes, after he had finished a few tasks on the first floor of the school building. Dr. Choate gave Ms. McElrath this information. Ms. McElrath left Dr. Choate's office and went directly to Room 137. She was frustrated because Mr. Rolle had told her before that he would configure her classroom computer but had not done so. Ms. McElrath thought that if she went to Room 137 and waited for him, Mr. Rolle would be more motivated to go to her classroom immediately. When Ms. McElrath entered Room 137, Mr. Rolle was helping Ludgerte Jean-Baptiste, a school paraprofessional, create a school map for a job career fair. Both Ms. Jean- Baptiste and Mr. Rolle were facing away from the door to the room. At first, Ms. McElrath looked for some novels she had seen previously in the Language Arts lab, but they weren't there. She jiggled her keys to make noise so Mr. Rolle and Ms. Jean-Baptiste would notice her. Mr. Rolle did not turn around, but, after a few moments, Ms. Jean-Baptiste turned around and asked if she could help Ms. McElrath. Ms. McElrath told her she was waiting for Mr. Rolle. Ms. Jean-Baptiste touched Mr. Rolle on the shoulder, and he turned around. Ms. McElrath asked him to come with her to her classroom to configure the computer for the Internet. Mr. Rolle told her that he needed to finish helping Ms. Jean- Baptiste and would go to Ms. McElrath's classroom within 30 minutes. Ms. McElrath was very persistent and repeatedly inquired as to why he could not come to her classroom immediately. Ms. Jean-Batiste told Mr. Rolle that she could finish with the map if there was something else that he needed to do. Mr. Rolle got up to leave Room 137, and Ms. McElrath asked Mr. Rolle if he was ready to go to her classroom. Mr. Rolle told Ms. McElrath that he would go to her classroom within 30 minutes, that he needed to go to his office to get the computer software, the configuration information, and the drivers before he went to her classroom. Ms. McElrath was annoyed. She became confrontational and blocked Mr. Rolle's path to the door of Room 137. When Mr. Rolle moved to his left to go around her, Ms. McElrath moved to her right to block his path. She continually asked him why he could not go to her classroom "now," and she persisted in moving to block his path to the door. Mr. Rolle stated several times to Ms. Jean-Baptiste that she should watch, that she was a witness. When Mr. Rolle reached the door, Ms. McElrath's back was to the door. Mr. Rolle tricked Ms. McElrath by feinting in one direction and actually moving in the other direction. As he stepped to his right to go through the door, Mr. Rolle moved his left arm between his body and Ms. McElrath's, pushed her aside, 3/ and opened the door with his right hand with sufficient force that the door hit the outside wall. Ms. McElrath was startled when Mr. Rolle pushed her, and she took a step back; she and Mr. Rolle pivoted as he moved through the doorway, so that she was facing the patio outside and Mr. Rolle was facing her. While the door was open, and without any further provocation from Mr. Rolle, 4/ Ms. McElrath raised her keys and sprayed a substance into Mr. Rolle's face from a canister on her key ring. The door closed, and Mr. Rolle fell to his knees, holding his eyes. Ms. Jean-Baptiste, who was inside Room 137, saw Ms. McElrath spray the substance into Mr. Rolle's face, and she went to help him to the bathroom to flush out his eyes with water. Ms. McElrath fled upstairs to her classroom. At least five students and one staff member observed this incident. Immediately after the incident, Ms. McElrath and Mr. Rolle were summoned to the principal's office. Ms. McElrath completed a written statement in which she asserted that she had sprayed Mr. Rolle with a fluid she used to clean her dry-erase board. In her statement, Ms. McElrath stated only that she had a heated discussion with Mr. Rolle, that she had felt threatened when he said that he would not be responsible for what he might do to her, 5/ and that he had shoved her. Mr. Rolle suffered temporary damage to his eyes and was required to wear dark glasses for several weeks. His eyes were blurry and watery and light-sensitive for about a week, and he had difficulty doing his work. He also had to drop several classes he was taking at Florida International University because he missed several classes as a result of the injury to his eyes. A Conference-for-the-Record was held on May 1, 2000, to discuss with Ms. McElrath the Preliminary Personnel Investigative Report of the incident involving Mr. Rolle, in which it was concluded that the charge that Ms. McElrath assaulted Mr. Rolle was substantiated, and to discuss Ms. McElrath's violation of School Board policy and rules, as well as her future employment status with the Miami-Dade County school system. Ms. McElrath was advised at the Conference-for- the-Record that she would be notified of the "recommended action or disciplinary measures to include any of the following: a letter of reprimand, a TADS Category VII prescription for the Professional Responsibilities Component infraction which could impact the annual evaluation decision, suspension or dismissal." At this conference, Ms. McElrath conceded that the substance she had sprayed in Mr. Rolle's face was actually pepper spray. She stated that she was seeing a counselor recommended to her by the Employee Assistance Plan. She acknowledged that her actions were precipitated because she perceived that Mr. Rolle was ignoring her and that there was no excuse for her actions toward Mr. Rolle. The first time Ms. McElrath alleged to the School Board that Mr. Rolle had moved his hands to her throat and that she was fearful that he intended to attack her was in a letter dated July 26, 2000, which she wrote "to clarify, explain, and/or respond" to the information contained in the summary of the May 1, 2000, Conference-for-the-Record. In this letter, Ms. McElrath stated that she sprayed Mr. Rolle with pepper spray because she was defending herself; he had shoved her and was bringing his hands up to her throat, and she felt threatened. Ms. McElrath asked that this letter be included as part of her record. Summary It is uncontroverted that Ms. McElrath sprayed Mr. Rolle in the face with pepper spray and that she lied when she asserted in the statement she gave immediately after the incident that the chemical she sprayed in Mr. Rolle's face was a solution she used to clean her dry-erase marker board. The disputed factual issues that are presented for resolution in this case are whether Ms. McElrath conducted herself in her employment as a teacher in a manner that failed to reflect credit on herself and the school system; whether Ms. McElrath committed misconduct in office and thereby impaired her effectiveness in the school system; whether Ms. McElrath committed violence in the workplace; and whether Ms. McElrath acted in self-defense when she sprayed Mr. Rolle with pepper spray. Having considered all of the evidence submitted with respect to Ms. McElrath's conduct during the incident involving Mr. Rolle, the undersigned finds that Ms. McElrath was acting in the course of her employment as a teacher and that her conduct certainly did not reflect credit on her. In making this finding, consideration has been given to Ms. McElrath's actions in blocking Mr. Rolle's path as he tried to leave Room 137 and in repeatedly demanding to know why he would not go directly to her classroom, after he had explained that he needed to obtain materials necessary to configure her computer for the Internet, as well as to her spraying Mr. Rolle with pepper spray. The undersigned further finds that Ms. McElrath committed misconduct in office. Ms. McElrath did not value Mr. Rolle's worth as an employee of the School Board entitled to make judgments regarding his professional responsibilities or Mr. Rolle's dignity as a person. Furthermore, Ms. McElrath used exceedingly poor professional and personal judgment both in spraying Mr. Rolle with pepper spray and in her actions toward Mr. Rolle as he was trying to leave Room 137. The evidence presented by the School Board is not sufficient, however, to establish that Ms. McElrath failed to sustain the highest degree of ethical conduct, that she interfered with Mr. Rolle's exercise of his political and civil rights, or that she used coercion to influence Mr. Rolle's professional judgment. Having considered all of the evidence presented on which findings of fact can be based, the undersigned finds that Ms. McElrath's actions with respect to Mr. Rolle were so serious that they impair her effectiveness in the school system. In making this finding, the undersigned is mindful that, based on the record herein, during her tenure as a teacher in the Miami- Dade County public schools, Ms. McElrath has not been the subject of any other disciplinary action and that she has consistently received "acceptable" annual evaluations, the highest overall rating a teacher in the Miami-Dade County school system may earn. Nonetheless, the lack of control Ms. McElrath exhibited in her behavior towards Mr. Rolle raises serious and disturbing questions regarding her ability to resolve in a reasonable manner those frustrating situations that sometimes occur when one works with busy colleagues, her ability to respond in an appropriate manner to the stresses of classroom teaching, and her ability to appreciate the consequences of her actions. Without question, the act of spraying someone in the face with pepper spray is an act of violence that, the evidence herein establishes, took place at Miami Jackson, the public school in which Ms. McElrath worked as a teacher. The greater weight of the evidence is sufficient to establish that Mr. Rolle pushed Ms. McElrath aside as he was moving to open the door to leave Room 137, but Ms. McElrath testified that Mr. Rolle's "shove" did not harm her but merely startled her and did not precipitate her action in spraying Mr. Rolle with the pepper spray. Rather, Ms. McElrath asserts that she took this action in response to Mr. Rolle's moving his hands upward to grab her throat. Having carefully considered all of the evidence on which findings of fact can be based, the undersigned finds that Ms. McElrath did not have a reasonable basis for believing that Mr. Rolle was about to attack and choke her. It is notable in this regard that, as far as can be discerned from the record herein, Ms. McElrath did not, as one would expect, immediately explain her action as self-defense but, rather, waited approximately five months before presenting this justification to the School Board. The testimony of Andrea Zuniga, the only witness who corroborated Ms. McElrath's claim that Mr. Rolle was moving his hands up to grab her throat, has been considered and found not sufficiently persuasive to outweigh the testimony of Ms. Jean-Baptiste, Diane McKnight, and Mercedes Thompson that they saw no such action by Mr. Rolle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Mary Jane McElrath without pay be sustained and that her employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 3rd day of August, 2001, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2001.
The Issue The issue in this case is whether Respondent's employment contract with Petitioner should be terminated.
Findings Of Fact Petitioner is the school board responsible for hiring, firing, and overseeing all employees at the School. The School, located at 5000 Orange Grove Boulevard, North Fort Myers, is completely fenced in with a gate at the front entrance, which can be left open during normal school hours. After incidents at Columbine High School and the terrorist attacks on September 11, 2001, security at the School was heightened. Respondent is a security specialist at the School and has been employed at the School for almost 30 years. Respondent first worked at the School as a security guard under CETA, a federally-funded training program, starting in 1979. She was then hired as a school board employee. Respondent worked in the school clinic for a short time, but has spent the majority of her time as a security specialist. One of Respondent's primary jobs as a security specialist was to provide security at the front gate of the school. In fact, the majority of Respondent's assignments put her at the front gate, although the School has made efforts to alter her schedule, when possible, so that she would not be stuck in one location. Due to some injuries she had experienced, however, Respondent often found assignment at the front gate to be the most conducive to her ambulatory constraints. On November 10, 2004, Respondent was at the front gate pursuant to her assignment for that day. While she was at the gate, a visitor, Herbert Wiseman, drove up in an automobile. Respondent had known Wiseman for many years and recognized him as a "dignitary" from the school district offices. Respondent waved Wiseman through the gate without stopping him and allowed him to proceed to the front office unannounced.1 This action was in contravention of School policies which required Respondent to stop all cars coming into the School and required an announcement of all officials from the district offices. However, Respondent felt her actions were not inappropriate, because she knew the individual and knew him not to be a threat of any kind. On that same day, a former student, Jamar Barnar, drove his vehicle onto the School campus without being stopped. Barnar parked his car, walked into the School property, and walked freely through the halls until he was seen and identified by a School employee. Barnar ran to his car and drove off campus. Respondent said she thought Barnar was still a student and just let him pass through the gate. Again, that action is in derogation of School policies, but Respondent says she has a good relationship with the students and sometimes allows them to circumvent the rules when she feels it would not be a threat to anyone. Respondent was issued a letter of reprimand by assistant principal Drake regarding the incidents on November 10, 2004. Respondent signed the letter acknowledging receipt, but did not ask for a union representative or otherwise attempt to grieve the letter. In fact, Respondent gracefully accepted the letter and agreed to be more vigilant in the future. The more credible testimony at final hearing established that Respondent was given the opportunity to have union representation, if she desired it. On March 8, 2005, there was another incident relating to security at the School which involved Respondent. Once again Respondent was posted at the front gate. She had been advised that two visitors were expected that day and that she should watch for them, allow them through the gate after questioning, and announce their arrival via radio contact with the front office. When the visitors (a Lee County Sheriff's officer--not in uniform--and a person from the federal Homeland Security Division) arrived, Respondent did not stop them. The visitors, on their own accord, stopped to see if Respondent would question them. She apparently did not. Rather, the visitors were allowed to go unannounced to the front office where they complained to the principal about the lack of security at the front gate. A letter of warning was issued by Principal Lunger and Assistant Principal Drake concerning the March 8, 2005, incident. Respondent was called into the office to review the letter, discuss its content, and sign it. She was offered the right to have a union representative present, but opted not to have one. Respondent acknowledged receipt of the letter of warning by her signature thereon. The letter says it is a "second written notification of a serious performance deficiency." Another letter of warning was issued to Respondent dated February 27, 2008. The basis for this letter of warning was that Respondent allowed a student to leave campus on February 19, 2008, without written permission. The student, who was well known to Respondent, advised Respondent that he had verbal permission from a teacher. However, School policies only allow administration or the front office to allow a student to leave campus. Respondent was aware of the policy, but again thought her relationship with the student was sufficient justification for allowing him to leave. Respondent was offered the right to have a union representative present when the letter of warning was discussed and signed, but she again opted out. Rather, she very amiably acquiesced to the statement of violation and signed the letter without further grievance. A letter of reprimand was issued by Assistant Principals Ken Burns and Steve Casolino dated February 29, 2008,2 relating to incidents that had occurred the previous week. On February 20, 2008, a student was seen on campus who was not supposed to be there and who had not been announced per School policies. Respondent says she had waved the student through, despite knowing it was against policy, because she knew him and had earlier allowed him to leave campus. The student (C.C.) should not have been on campus at that time due to some reason not fully disclosed at final hearing. Nevertheless, upon re-entry to the campus (allegedly with another person in his automobile), C.C. should have been stopped and questioned as to his reason for being on campus. On February 21, 2008, a student was attempting to leave campus without permission. Assistant Principal Casolino began to pursue the student and also called on the radio for security assistance. None of the three guards on duty (including Respondent) answered his call. Casolino called on the radio for the front gate to be shut so the student could not leave; it was not shut. Respondent maintains that she was keeping watch on an unauthorized car that had entered campus at that time. She opted to stay near the car, because it presented the higher security risk. Respondent did not explain why she did not answer the radio call. Respondent was absent from work immediately following the February 20 and 21, 2008, incidents. Upon her return to work on February 28, 2008, Respondent was called to the front office to discuss the letter of reprimand. She was offered the right to have a union representative, but declined. In fact, Respondent was the union representative for the School at that time, although it is unclear whether she could have represented herself or whether she was qualified to do so. There were three copies of the letter presented to Respondent, one of which was to be retained by her. Assistant Principals Burns and Casolino signed each of the three copies. On her copy, Respondent wrote the words "Under Protest" and did not sign it at that time.3 At some point in time, Respondent signed a copy of the letter of reprimand. Respondent remembers that her copy of the letter with "Under Protest" on it was torn up or crumpled and put in the waste basket. However, the photocopy of that letter presented at final hearing does not appear to have been torn up or crumpled. There is another version of the letter with signatures by Burns, Casolino, and Respondent (who signed twice) with the words "Under Protest" on it, but it is obviously not the same one that Respondent left with Burns and Casolino at the meeting. This second letter appears to be Respondent's copy of the fully signed letter upon which she later wrote "Under Protest." There are three different versions of the February 29, 2008, letter in evidence: (1) a letter with no signature by Respondent and the words "Under Protest" on it; (2) a letter signed by Burns, Casolino and Respondent--twice; and (3) a letter signed by Burns, Casolino and Respondent with the words "under protest" and "second copy" handwritten on them. At any rate, Respondent at some point signed the letter of reprimand and did not further file a grievance or complaint about the letter. However, Respondent did draft a letter to Burns and Casolino explaining her actions vis-à-vis the February 20 and 21, 2008, incidents. The letter, which is not signed, is an explanation of her actions, but Respondent did not base a formal grievance on the letter. Each employee of the School Board is evaluated annually concerning their work performance.4 Various categories of job duties are discussed in each evaluation and graded on a scale ranging from U-Unacceptable Level of Performance, to I-Inconsistently Practiced, and then E-Effective Level of Performance Observed. Respondent's 2003-2004 evaluation primarily contained grades of "E," indicating her level of performance was effective or acceptable. However, she had a "U" in the area of "Meets acceptable attendance and punctuality schedule." Comments on that evaluation say "Good worker, but absent too frequently." Respondent was absent 84.50 hours (over two full weeks) during the 2003-2004 school year. The 2004-2005 evaluation contained no "U" grades, but had "I" grades in three areas. There were no written comments on that evaluation form. The evaluation for school year 2005-2006 is almost completely at the effective level of performance, except for one area, "Utilizes leave only when necessary." Comments on the form say, "Total hours absent, 116.5. See below." The bottom of the form indicates 68.5 hours of sick leave, 27.5 hours of personal leave, and 20.5 hours of leave without pay for the period July 1, 2005, through March 23, 2006. This equates to 14.5 work days absent from the job. For the 2006-2007 school year, Respondent's evaluation again had two "I" grades in the areas called: (1) Achieves expected results with few errors; and (2) Utilizes leave only when necessary. The comments section again addresses Respondent's absences. She had 98.5 hours (12.3 total days) of leave; and 26.5 of those hours were without pay, meaning she had used up her allotted leave time. Respondent's last (or latest) evaluation indicates five areas with unacceptable levels of performance. Included in those areas are reviews of attendance and dependability. The comments section refers to the February 27, 2008, letter of warning; the February 29, 2008, letter of reprimand; and the December 5, 2007, warning letter. For that school year, Respondent had 136.25 hours absent, including 62.5 hours of leave without pay. This equates to 17 days absent, with over eight days of leave in excess of her allotted allowance. Respondent is accused of having excessive absences from work. This is a critical issue for the School because, due to budget cuts, there are only three security guards for a campus of over 2,200 students. There had been four guards previously, so teachers were being asked to supplement security by acting as de facto guards when possible. The presence of all three security guards each day was critical to maintaining a high level of security. On April 2, 2007, Respondent had sustained an injury to her right foot. Despite X-rays being taken soon after the injury, the fact that Respondent had fractures in her foot was not immediately ascertained. As a result, Respondent had a period of time that her ability to work was affected by her injury. She was under treatment by medical professionals during the entire 2007-2008 school year. While Respondent was recovering from her injury, the School made sure she had access to a golf cart for moving around campus. It was during this period of convalescence that the School made a conscious decision to assign Respondent to the front gate so that she would be in a position that did not require as much mobility. The excessive number of absences by Respondent caused problems for the School as far as security was concerned. Although the reasons for some of the absences was obviously due to the injury she sustained, there were also a number of absences related to other known (i.e., migraine headache) or unknown reasons. The concerns about Respondent's attendance were taken to the Lee County School District's Human Resources Department by Principal Lunger. Lunger did not know how else to handle the lack of security caused by Respondent's absences. Use of teachers as replacement security guards was simply not an effective means of addressing the problem. Further, the School Board did not have funds available to hire a replacement each time Respondent was absent. The absentee issue was a legitimate concern of the School and was part of the basis for deciding to terminate Respondent's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, upholding the termination of Respondent, Debra Ballard's, employment for the reasons set forth above. DONE AND ENTERED this 23rd day of April, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 23rd day of April, 2009.
The Issue Petitioner challenges the validity of Rule 3SF-2.13, Florida Administrative Code. 1/
Findings Of Fact Based on the entire record compiled herein, including the parties' factual stipulation, the following relevant facts are found. MISSION Insurance Co. (MISSION) is a corporation duly authorized to issue insurance policies, including workers' compensation insurance policies in the State of Florida. MISSION conducts its adjusting operations at North Regency One, Suite 400, 985 Regency Square Boulevard, Jacksonville, Florida. In the regular course of its business, MISSION adjusted the worker's compensation claim of Katrine Graham, who was injured on April 30, 1984 in an accident arising out of and in the course of her employment with Smiley's Mobey Dick Restaurant. MISSION received notice of the accident on May 21, 1984. On September 1, 1984, MISSION filed with the DIVISION its initial Injury Progress report (LES From BCL-13), in connection with the claim. On February 11, 1985, MISSION received from the DIVISION's Bureau of Workers' Compensation Carrier practices a letter dated February 4, 1985, notifying MISSION that the Bureau had assessed against MISSION the penalty of $100.00 for filing the form 11 days after the time prescribed by Rule 38F-3.16, F.A.C. A copy of the letter is attached hereto as Joint Exhibit "A." Since at least 1979, the DEPARTMENT has had a policy of imposing a fine of $100.00 on any insurance carrier who files its initial Injury Progress Report (LES From BCL-13) more than 105 days after it receives notice of the accident. The DEPARTMENT applies this policy, through its Bureau of Workers' Compensation Carrier Practices, to all insurance carriers and self-insured employers who come within the jurisdiction of the DEPARTMENT. The DEPARTMENT imposes penalties for the untimely filing of forms other than the BCL-13 form. The penalties to be imposed for the untimely filing of the BCL-13 form, as well as other forms, are stated in a "Penalty Assessment Chart," a copy of which is attached hereto as Joint Exhibit "B." At the time the subject penalty was imposed on MISSION, this chart was used by the DEPARTMENT's workers' compensation examiners in determining whether a penalty should be imposed and, if so, the amount of the penalty. The DEPARTMENT did not implement or use Chapter 120 rulemaking procedures to adopt the Penalty Assessment Chart, or the policy it represents, as a rule. PETITIONER'S POSITION Petitioner contends that the Penalty Assessment Chart amounts to an unpublished rule which has the effect of exacting a penalty for "late" filing in excess of Respondent's legislative authority inasmuch as Respondent is only authorized to impose a penalty based on a carriers failure or refusal to file forms, reports, or notices pursuant to Section 445.185(9), Florida Statutes. Petitioner avers that in the absence of specific statutory authorization for Respondent to impose a penalty or assessment for an untimely filing, there is no basis upon which Respondent can impose the penalty involved herein, that the rule should be declared invalid and the $100.00 penalty imposed based thereon, should be rescinded. RESPONDENT'S POSITION Respondent avers that timely filings are inextricably tied to the Division's reporting requirements and that to conclude that a carrier could file reports, notices, etc. at will, without any directive, would lead to an absurd result in contravention of Respondent's long-standing reporting policy which has been effective since approximately 1979. Finally, Respondent urges that the legislature has authorized it to exact penalties for late filings based on the authority granted in Sections 440.185(5) and (9), Florida Statutes.
The Issue Whether Respondent, a high school teacher, should be disciplined under sections 1012.795 and 1012.796, Florida Statutes (2014),1/ for an inappropriate relationship and inappropriate communications with a student; and, if so, the appropriate discipline.
Findings Of Fact The Respondent holds Florida Educator Certificate 946095, covering social science. The certificate is valid through June 30, 2019. In the 2014/2015 school year, the Respondent was teaching social science at Gulf Coast High School in Collier County. In October 2014, the Respondent began communicating with his student, H.D., by text messages. There were numerous texts sent on a regular basis over the course of about two months. Most of these messages did not relate to classroom matters, which violated school district policy. Many were highly personal and clearly inappropriate. Thirty-three times, the Respondent referred to his student as “baby.” Nine times, he wrote, “miss u.” Nine times, he said she was “beautiful.” Five times, he said she was “cute.” In one message, the Respondent asked the student to meet him at the mall during winter break for him to buy her a Christmas gift. He also texted her on Christmas Eve and on Christmas morning. In one text, he asked to take her to dinner. In one message, the Respondent asked the student if she minded if he rubbed her leg. In another, he apologized for hugging her and kissing her on the nose. When these text communications came to the attention of the school’s administration, an investigation was initiated. On January 15, 2015, the Respondent was informed of the investigation and was given an opportunity to explain. The Respondent declined. He was then escorted off campus. The school district referred the matter to law enforcement, which also investigated. When interviewed by law enforcement, the Respondent exercised his right to remain silent. No criminal charges were brought against the Respondent because H.D. and her mother did not want to press charges and because there was no evidence of sexual misconduct by the Respondent. After the law enforcement matter was closed, the school district again confronted the Respondent about the charges, and he again declined to respond. Instead, he resigned his employment on February 9, 2015. The school superintendent accepted the resignation but specified that the Respondent resigned “Not in Good Standing.” As a result, the Respondent is not eligible for rehire in any capacity by the school district. His misconduct and ineligibility for rehire clearly reduces his effectiveness as an employee of the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding the Respondent guilty on Counts 1, 2, and 6, and revoking his Educator Certificate. If the revocation is not permanent, it should be for at least five years, after which he would be able to re-apply for certification and try to demonstrate good moral character. DONE AND ENTERED this 12th day of January, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2018.
The Issue The issue for determination is whether Respondent should be suspended, without pay, and terminated from all employment with Petitioner for the offenses set forth in the Notice of Specific Charges.
Findings Of Fact No dispute exists that, at all times material hereto, Ms. Hankerson was an instructional employee with the School Board. Ms. Hankerson has been a teacher with the School Board for 11 years, beginning as a teacher with the School Board in 2000. She was first assigned to Renick Education Center. Subsequently, Ms. Hankerson was transferred to Barbara Goleman High School (Goleman) in Miami Lakes, Florida. During the 2009-2010 school year, she taught science to exceptional student education (ESE) students at Goleman. At the beginning of the 2010-2011 school year, Ms. Hankerson was advised that her department was being eliminated and that she needed to find another school at which to work if she desired to continue her employment with the School Board. She sought other schools and received an email from Howard McMillan Middle School (McMillan) to come for an interview. She accepted a teaching position at McMillan, effective September 20, 2010. While working at Goleman in Miami Lakes, Florida, Ms. Hankerson resided in Miami Shores, Florida. Her residence was in close proximity to Goleman. She had three children and was able to get her children to school and report to Goleman in a timely manner throughout her tenure at Goleman. Ms. Hankerson's travel time to McMillan was significantly greater than to Goleman due to McMillan being located further south than Goleman.2 During the 2010-2011 school year, all teachers at McMillan were required to report to work at 8:30 a.m. Professional meetings, which consisted of team meetings and department meetings, were held from 8:30 a.m. until 9:00 a.m. Team meetings were held three days a week. Department meetings were held two days a week, where teachers meet by department to discuss curricular activities and requirements. Faculty meetings were held every other Tuesdays, and, when faculty meetings occurred, no professional meetings were held because the faculty meetings replaced the professional meetings. At 9:00 a.m., teachers went to their respective classroom to meet their students, who began arriving at 9:00 a.m. Instruction began at 9:10 a.m., with homeroom followed by advisement, where the Comprehensive Research Reading Plan was implemented, and ended at 9:46 a.m. First period began at 9:56 a.m. School ended at 3:50 p.m. Ms. Hankerson was assigned a homeroom class. The students in her classroom consisted of eighth grade students, who were not performing at grade level in reading and were FCAT Level 1 students in reading. Ms. Hankerson's first period (Period 1) was a seventh grade civics class. Her students consisted of ESE students, with varying exceptionalities. She was the sole teacher. Ms. Hankerson was a co-teacher for four periods of the remaining school day, teaching science. The students for the four periods consisted of general education students and ESE students. Ms. Hankerson was the ESE teacher, and the other teacher was the general education teacher, who generally took the lead in the classroom. The second period (Period 2) was a seventh grade science class; the third period (Period 3) was an eighth grade science class; the fourth period (Period 4) was a sixth grade science class; and the sixth period (Period 6) was a seventh grade science class. Her fifth period (Period 5) was a planning period. No dispute exists that Ms. Hankerson's employment with the School Board is subject to, among other things, a professional service contract, a collective bargaining agreement (Agreement) between the School Board and the United Teachers of Dade (UTD), and policies and procedures of the School Board. School Board Policy and the Agreement provide teachers with one sick day of leave every month. At the beginning of each school year, each teacher is given, up front, four days of sick leave that the teacher can use. However, the accrual of sick leave is one sick leave day per month for the ten-month period that a teacher is employed with the School Board, totaling ten sick days of leave. During the ten-month period, if a teacher takes leave exceeding the ten days and does not have leave that is "banked," which is leave that is carried over from one school year to the next, it results in leave without pay, unauthorized. In a medical situation, if a teacher knows that he or she will be absent for an extended period of time, the teacher would apply for leave. If the absence will be over 30 days, the teacher would apply for medical leave and can use leave that is banked. However, if no leave is banked, it results in leave without pay, unauthorized. If a teacher is going to be absent from work, the teacher is required to call into a dedicated-absence telephone line at least one hour before the start of the workday. On the day that the teacher is absent, the teacher is also required to call his or her school 30 minutes prior to the scheduled student dismissal time, indicating whether he or she will report to work on the next workday in order for the school to make arrangements for a substitute teacher. A teacher, who is absent without prior approval, is deemed to have been willfully absent without leave, except in a situation of sudden illness or an emergency situation. Immediately upon beginning at McMillan, Ms. Hankerson began arriving late and using her sick days. Eight days after beginning at McMillan, on September 28, 2010, she took a sick leave day; on October 1, 2010, she took one day of leave without pay, unauthorized; and on October 13 and 19, 2010, she took one sick leave day and one-half sick leave day, respectively. On October 21, 2010, while she was at McMillan, allegations, unrelated to the instant case, involving inappropriate conduct and remarks were made against Ms. Hankerson. Effective October 22, 2010, she was removed from McMillan and placed at the School Board's Region office, pending an investigation. A substitute teacher was hired to take over Ms. Hankerson's classes. The allegations were referred for investigation to the School Board's Civilian Investigative Unit. Ms. Hankerson was assigned to the Region office from October 22, 2010, through February 22, 2011. While at the Region office, Ms. Hankerson continued her pattern of absences. Between October 22, 2010, and February 22, 2011, she accumulated an additional 18 days of absences: five and one-half days of leave without pay, unauthorized; seven days of leave without pay, authorized; and five and one-half days of sick leave. The investigation into the allegations was concluded. At a Conference-For-The-Record (CFR) held by the School Board's Office of Professional Standards (OPS) on November 29, 2010, memorialized in a Summary of CFR dated December 3, 2010, Ms. Handerson was advised that probable cause existed for violations of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics. At the CFR, the OPS provided her with a copy of the School Board rules; The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida; and a document titled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." Additionally, the OPS issued her directives, including adhere to all the School Board's rules and regulations; and comport, both at the workplace and in the community, in a manner that reflects credit upon herself and the School Board. By letter dated February 10, 2011, Ms. Hankerson was notified that the School Board had taken action, at its meeting on February 9, 2011, to suspend her without pay for five workdays from February 10, 2011, through February 16, 2011. Further, the letter notified her to report to work at McMillan on February 17, 2011. However, Ms. Hankerson did not serve the suspension from February 10, 2011, through February 16, 2011. The suspension was rescheduled to February 22 through 28, 2011, with her return to McMillan on March 1, 2011. Having served her suspension on February 22 through 28, 2011, Ms. Hankerson failed to return to McMillan on March 1, 2011. Moreover, she failed to call the dedicated absence telephone line at McMillan, the Absence Reporting System (ARS), one hour prior to the workday on March 1, 2011, to state that she would not report to work that day; and failed to call 30 minutes before the scheduled student dismissal on March 1, 2011, to state whether she would report to work on March 2, 2011. On March 2, 2011, Ms. Hankerson reported to McMillan for work and, also, reported ten minutes late, at 8:40 a.m. That same morning, McMillan's principal, Hilca Thomas, met with Ms. Hankerson and advised her that she (Ms. Hankerson) was required to report to work on March 1, 2011, not March 2, 2011; and that March 1, 2011, would be reported as leave without pay, unauthorized. Ms. Hankerson blamed the arrival on March 2, 2011, instead of March 1, 2011, on a miscommunication between her and the UTD representative. Further, Ms. Thomas reminded Ms. Hankerson of the hours of work and the attendance procedures, including communicating absences using the ARS. Ms. Hankerson stated that she would "not make it in at 8:30"; that she would "be late almost every morning because of [her] children and [she] live[s] far [away]"; and that being late was "unavoidable." Additionally, Ms. Thomas advised Ms. Hankerson that her (Ms. Hankerson's) undergarment was exposed and that she was not wearing appropriate attire. Ms. Hankerson abruptly left Ms. Thomas' office stating that she was going to UTD's office downtown. Shortly thereafter, around 9:15 a.m., Ms. Henderson returned to Ms. Thomas' office, but a substitute teacher was already deployed to Ms. Hankerson's classroom. As a result, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) could leave for the day and directed Ms. Hankerson to report back to McMillan for work on March 3, 2011. The events on March 2, 2011, were memorialized in a memorandum from Ms. Thomas to Ms. Hankerson on that same date. Ms. Hankerson acknowledged receiving a copy of the memorandum. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas to report to work at 8:30 a.m. and to follow the procedures for absences were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson failed to report to work at McMillan on March 3, 2011. Also, she failed to report to work on March 4, 2011. Both days were reported as leave without pay, unauthorized. Ms. Hankerson reported to work at McMillan on March 7, 2011, the next school day, at which time she was issued an Absence from Worksite Directive by Ms. Thomas. The Absence from Worksite Directive advised Ms. Hankerson, among other things, that attendance and punctuality were essential functions of her job and that, since September 20, 2010, she had accumulated 25.5 absences.3 The absences were reflected as four absences within her first month at McMillan (September 20 through October 22, 2010); 17.5 absences when she was assigned to the Region office during the investigation; and four absences when she was to report back to McMillan between March 1 and 4, 2011. Additionally, the Absence from Worksite Directive instructed Ms. Hankerson on the proper procedures to obtain authorized leave of absence. She had failed to avail herself of the proper procedures to obtain authorized leave of absence. Further, the Absence from Worksite Directive advised Ms. Hankerson that her noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. On March 7, 2011, Ms. Hankerson acknowledged receiving the Absence from Worksite Directive by signing the document. The evidence demonstrates that the directives issued to Ms. Hankerson by Ms. Thomas in the Absence from Worksite Directive were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to issue the directives. Ms. Hankerson failed to abide by and comply with the directives. On March 10, 2011, three days after receiving the Absence from Worksite Directive, Ms. Hankerson arrived at McMillan late, 9:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and reminded her (Ms. Hankerson) of the directives. Additionally, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) was inappropriately dressed. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On March 11, 2011, Ms. Hankerson arrived at McMillan late, 8:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and advised her (Ms. Hankerson) that, because she (Ms. Hankerson) had failed to call-in to the ARS, a substitute had been hired for the day. Ms. Thompson reported the absence as one day leave without pay, unauthorized. On March 21, 2011, Ms. Hankerson failed to report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on March 22, 2011, and, as a result, Ms. Thomas hired a substitute for March 22, 2011. Ms. Thomas met with Ms. Hankerson on March 22, 2011, and reviewed the absence with her (Ms. Hankerson); reported Ms. Hankerson's absence as unauthorized; and advised Ms. Hankerson that a substitute was hired for the day. Ms. Thompson reported each absence as one-day leave without pay, unauthorized. On March 29, 2011, Ms. Hankerson left McMillan approximately an hour early, at 2:45 p.m., without prior approval and without signing-out. Also, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, March 30, 2011, Ms. Hankerson did not report to McMillan. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, March 31, 2011, Ms. Hankerson left McMillan approximately 30 minutes early, at 3:20 p.m., without prior approval and without signing-out. Additionally, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, April 1, 2011, Ms. Hankerson left McMillan at 12:30 p.m., without prior approval and without signing-out. Also, she failed to attend her classes at Periods 4 and 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On April 4, 2011, Ms. Hankerson left McMillan at 10:47 a.m., without prior approval and without signing-out. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, April 5, 2011, Ms. Hankerson arrived at McMillan a little over one-half hour late, at 9:03 a.m. Ms. Thomas met with Ms. Hankerson, regarding the attendance, and informed her (Ms. Hankerson's) that the early departures from McMillan would be reported as leave without pay, unauthorized. Further, Ms. Thomas provided Ms. Hankerson with notification of a CFR to be held on April 8, 2011. The next day, April 6, 2011, Ms. Hankerson did not report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on April 7, 2011, and, as a result, Ms. Thomas hired a substitute for April 7, 2011. The CFR on April 8, 2011, was scheduled for 3:00 p.m. Even though Ms. Hankerson had reported to McMillan for the workday, she did not appear at the CFR at the scheduled time. When an "all call" was made over the public address system for her at 3:20 p.m., Ms. Hankerson responded and was informed that should report to the CFR. However, she did not arrive at the CFR until 3:49 p.m. and informed Ms. Thomas, among other things, that the CFR should proceed without her (Ms. Hankerson) because her (Ms. Hankerson's) children were home alone and she (Ms. Hankerson) was leaving at 3:50 p.m., the end of the workday. Ms. Hankerson left, and the CFR proceeded without her. The attendees at the CFR included Ms. Thomas; the assistant principal; and the UTD Representative. The purpose of the CFR was to address Ms. Hankerson's insubordination regarding previously issued attendance directives, and her noncompliance to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13- 4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; and to review her record and future employment status with the School Board. A Summary of the CFR was prepared by Ms. Thomas on April 18, 2011. The Summary for the CFR included a delineation of Ms. Hankerson's absences, reflecting that, since the issuance of the Absence of Worksite Directive on March 7, 2011, through April 15, 2011, Ms. Hankerson had accumulated one-half day absence of leave without pay, authorized; 10.5 days absence of leave without pay, unauthorized; one temporary duty day; and one personal day.4 Furthermore, the Summary for the CFR reflected that, as of April 15, 2011, for the 2010-2011 school year, Ms. Hankerson had accumulated a total of 46 absences.5 The Summary for the CFR contained directives to Ms. Hankerson. The directives included: adherence to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13-4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; to report to work and depart from work daily at the scheduled hours; be in regular attendance at the worksite and on time; adhere to attendance directives previously issued; communicate any intent to be absent directly to the principal and by calling the ARS; the reporting of future absences will be leave without pay, unauthorized, unless documentation showing qualification under the Family Medical Leave Act (FMLA) or other leave of absence is provided; and for imminent absences, leave must be requested and procedures for School Board approved leave implemented, and the FMLA or Americans with Disabilities Act (ADA) requirements, if applicable, must be complied with. Ms. Hankerson was advised that failure to comply with the directives would lead to further review for disciplinary action and would be considered gross insubordination. Further, the Summary for the CFR advised Ms. Hankerson that she would be issued a letter of reprimand. Ms. Hankerson acknowledged receipt of the Summary for the CFR on April 18, 2011, by signing the Summary for the CFR. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas at the CFR and the Summary for the CFR were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. On April 18, 2011, Ms. Thomas issued Ms. Hankerson a Reprimand. The Reprimand was based on Ms. Hankerson's failure to comply with the previous directive issued to Ms. Hankerson regarding attendance and professional responsibilities. Additionally, the Reprimand advised Ms. Hankerson that any recurrence of the noncompliance might lead to disciplinary action and would be considered gross insubordination. Ms. Hankerson acknowledged receipt of the Reprimand on April 18, 2011, by signing the Reprimand. Ms. Hankerson failed to comply with the directives issued in the Summary for the CFR. On the same day of the Reprimand, April 18, 2011, Ms. Hankerson was absent one-half day, reported as leave without pay, unauthorized. Two days thereafter, she was absent for three consecutive days, April 20 through 22, 2011, each day being reported as leave without pay, unauthorized. Having worked the next school day, April 25, 2011, Ms. Hankerson was absent one-half day on April 26, 2011, reported as leave without pay, unauthorized; absent one-half day on April 27, 2011, reported as leave without pay, unauthorized; and absent one day on April 28, 2011, reported as leave without pay, unauthorized. Additionally, she was tardy for work on April 27, 2011. From April 18 through 28, 2011, she had a total of five and one-half absences. Due to these recent absences and tardiness, on April 28, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences and tardiness were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be absent, tardy, and insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on April 18, 2011, by signing it. The evidence demonstrates that the re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson's absences, tardiness, and early departures continued. On May 2 through 4, 2011, she was absent one day each date; May 5, 6, and 13, 2011, she was absent one- half day each date; and May 16, 2011, she was absent one day; totaling five and one-half days of absences, which were reported as leave without pay, unauthorized. Also, Ms. Hankerson was tardy seven times, on May 5, 6, 10 through 13, and 17, 2011, which were unauthorized. Additionally, she departed McMillan early two times, on May 6 and 13, 2011, which were unauthorized. Due to these recent absences, tardiness, and early departures, on May 17, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences, tardiness, and early departures were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on May 17, 2011, by signing it. The evidence demonstrates that the second re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. At the time of the Continued Failure to Comply with Re-Issued Directives memorandum on May 17, 2011, Ms. Hankerson had accumulated 57 absences. Additionally, she had multiple instances of tardiness and early departures. A CFR was held by OPS. Persons in attendance included the Director of OPS; Ms. Thomas; and Ms. Hankerson and her UTD Representative. At the CFR, Ms. Hankerson was provided an opportunity to respond. OPS recommended termination of Ms. Hankerson's employment for gross insubordination and violation of School Board's rules concerning Responsibilities and Duties, Code of Ethics, and Absences and Leaves. After the CFR at OPS, Ms. Hankerson reported for work at McMillan only on June 7, 2011, and June 9, 2011, which was the last day of the 2010-2011 school year. On June 9, 2011, she arrived late, signed-in, and left McMillan shortly thereafter, not remaining at work the entire time set-aside for the last day. From the time that she began at McMillan until the time of the recommendation by OPS, Ms. Hankerson had accumulated 57 absences during the 2010-2011 school year. Of the 57 absences, 18.5 absences occurred during the time that she was assigned to the Region office, not in the classroom. Ms. Hankerson's absences and tardiness negatively impacted the role of Ms. Thomas as the principal and leader of McMillan. Often times, due to Ms. Hankerson's tardiness, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until Ms. Hankerson arrived. Additionally, when Ms. Thomas had no notice that Ms. Hankerson would be absent, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class until a substitute, who had to contacted at the last minute because of no prior notice, arrived; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until the substitute arrived. As a result of the recommendation of OPS, the Superintendent recommended to the School Board the suspension, without pay, and termination of the employment of Ms. Hankerson. At its regularly scheduled meeting held on June 15, 2011, the School Board took action to suspend, without pay, Ms. Hankerson and initiate dismissal proceedings against her from all employment for just cause, including, but not limited to: misconduct in office; gross insubordination; attendance-to-date; and violation of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, 6Gx13-4A-1.213, Code of Ethics, and 6Gx13-4E-1.01, Absences and Leaves. Ms. Hankerson does not refute the absences, the tardiness, or the early departures. For the instances of tardiness, Ms. Hankerson testified at hearing that she would call-in before 8:30 a.m. and state that she was en-route and would be late. The School Board did not refute her assertion. Despite her calling-in, Ms. Hankerson admitted that Ms. Thomas did not tolerate her (Ms. Hankerson's) tardiness and took the action previously mentioned. Ms. Hankerson's testimony is found to be credible. On March 2, 2011, Ms. Hankerson informed Ms. Thomas that arriving late for work at McMillan was unavoidable because she (Ms. Hankerson) took her (Ms. Hankerson's) children to school and she (Ms. Hankerson) lived so far away from McMillan. Additionally, around April 2011, Ms. Hankerson informed Ms. Thomas that she (Ms. Hankerson) was going through a divorce. At hearing, Ms. Hankerson testified that, during March, April, May, and June 2011, she was having marital problems and living sometimes at home and sometimes with her mother in Fort Lauderdale, Florida, which was approximately 28 miles from McMillan. Ms. Hankerson took her children to school, but, when she lived with her mother, she would not leave them at their school in the mornings alone if it was dark. She testified further that she was being investigated by the Department of Children and Families regarding allegations of neglect and being an unfit mother. Additionally, she testified that she was having financial problems. Ms. Hankerson's testimony is found to be credible. However, she did not provide these details to Ms. Thomas. Further, Ms. Hankerson testified that, for April, May, and June 2011, she considered taking leave using the FMLA and contacted her UTD Representative. Ms. Hankerson decided not to take leave using the FMLA. The UTD Representative did not testify at the hearing. Ms. Hankerson's testimony is found to be credible. Again, Ms. Hankerson did not provide this detail to Ms. Thomas. Ms. Hankerson testified that the circumstances that she indicated caused her absences, tardiness, and early departures have been resolved. Her testimony is found to be credible. Before working at McMillan on September 20, 2010, Ms. Hankerson had no prior disciplinary action taken against her by the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Lavonda Hankerson, without pay, for the 2011-2012 school term and under other terms and conditions deemed appropriate by the Miami-Dade County School Board. DONE AND ENTERED this 7th day of November, 2011, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2011.
The Issue Whether the Respondent committed the violations alleged in the Order of Probable Cause entered August 26, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Because Ms. Fresen failed to respond to the Petitioner's First Request for Admissions, the matters of which admissions were requested are deemed conclusively established for purposes of this administrative proceeding. See Fla. R. Civ. P. 1.370. The Petitioner's First Request for Admissions is attached to this Final Order, and the matters of which admissions were requested are adopted herein as findings of fact.
