The Issue Whether Respondent committed the violations alleged in the Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Ludlam Elementary School (Ludlam)), and for otherwise providing public instruction to school-aged children in the county. Respondent has approximately 30 years of teaching experience, and has been a classroom teacher for the School Board since December 1999. As a School Board employee, she has not been the subject of any disciplinary action aside from the 30-workday suspension that is being contested in the instant case. Respondent is currently co-teaching a kindergarten class at Ludlam, the only school at which she has taught during her employment with the School Board. For the eleven years she has been at Ludlam, Respondent has been a kindergarten teacher exclusively, except for the 2009-2010 school year, when she taught second grade. Among the second graders in her class that school year were A. H., A. P., and J. M.3 Dr. Georgette Menocal is now, and was during the 2009- 2010 school year, the principal of Ludlam. At a Ludlam faculty meeting, attended by Respondent, that was held at the beginning of the 2009-2010 school year, Dr. Menocal gave a PowerPoint presentation in which she reviewed, for those in attendance, key provisions of Ludlam's 2009-2010 Faculty/Staff Handbook (Handbook), including the following excerpt relating to "Classroom Management Procedures": CLASSROOM MANAGEMENT PROCEDURES Teachers should make every effort to handle routine classroom discipline problems by conferring with the student, contacting parents, and referring the student to the counselor. If a serious violation of school rules has occurred, a "Student Case Management Referral Form" should be completed and forwarded to the administration. A response will be forthcoming. * * * It is the teacher's responsibility to manage his/her class and to follow the procedures outlined in the Code of Student Conduct. All level 1 behaviors are to be addressed by the teacher. Most level 2 behaviors can be addressed by the teacher and/or counselor. Level 3 (and above) behaviors require a referral to an administrator. Each student referral must be made on a Student Case Management (SCM) referral form. The disciplinary policies of the school should be administered on a consistent basis throughout the school. The CODE OF STUDENT CONDUCT should be reviewed with students at the beginning of each school year. NEVER - Use corporal punishment of any kind (hitting, tapping or tying students, having students stand for long periods of time, etc.)[4] The School Board's Code of Student Conduct-Elementary (Code) (which Ludlam teachers were directed by the Handbook to "follow") provided, among other things, that "Level 3 . . . behaviors" included "Fighting (serious)" and that "Fighting (serious)": Occurs when two or more students engage in physical force or violence against each other and they become so enraged that they do not stop when given a verbal command to do so, OR physical restraint is required, AND/OR someone is injured to an extent that requires immediate first aid or medical attention. Any serious fighting incident that causes injury or requires medical attention would result in a suspension. If the principal or designee determines that one student or a group of students attacked someone who did not fight back, the aggressors should receive punishment for battery, aggravated battery, and/or bullying, depending on the facts, and will likely be arrested. Otherwise, administrators will report all other incidents involving mutual participation as Fighting (Serious) without regard to who was the original aggressor. On February 25, 2010, during a mathematics lesson Respondent was teaching, two female students in her class, A. H. and A. P., were involved in an altercation in the back of the classroom, during which A. H. hit A. P. with a book. Respondent intervened and separated the two girls by physically restraining A. H., who struggled to escape Respondent's grasp. As she was holding A. H., Respondent instructed A. P. to hit A. H. back. A. P. did as she was told, striking A. H.5 with a book.6 The incident (Incident), which lasted approximately a minute, was witnessed by J. M., who was in her seat and had turned around to observe the fracas.7 Notwithstanding that she had physically restrained A. H., Respondent did not report the Incident to the school administration (via submission of a completed Student Case Management referral form, as required by the Handbook, or through any other means).8 Following the Incident, the students in Respondent's class left her classroom and went to their Spanish class. Ludlam's assistant principal was subsequently called to the Spanish class. She removed A. H. and A. P. from the class and brought them to Dr. Menocal's office, where Dr. Menocal spoke to them separately. Both A. H. and A. P. told Dr. Menocal about their scuffle earlier that day in Respondent's classroom and how, during this tussle, Respondent had directed A. P. to hit A. H. while A. H. was being held by Respondent. A. H. and A. P. gave Dr. Menocal, at Dr. Menocal's request, the names of three other students who may have witnessed the Incident. The three students9 were brought, separately, to Dr. Menocal's office and questioned by her. Each of the three students confirmed what A. H. and A. P. had told Dr. Menocal. Dr. Menocal asked A. H., A. P., and two of the three other students to whom she had spoken to each write a statement in their own words describing what had happened in Respondent's classroom earlier that day.10 They wrote their statements, separately, in Dr. Menocal's presence. In her written statement, A. H. stated, in pertinent part, "Ms. Grey hold me and then Ms. Grey told her [A. P.] to hit me and then she hit me on my back . . . ." A. P. and the two other children each wrote that Respondent had "let" A. P. "hit" A. H., but they did not specifically state in their written statements that Respondent had told A. P. to strike A. H. After receiving these written statements from the students, Dr. Menocal contacted the School Board police and the Department of Children and Family Services (DCFS) to report what the students had related to her about the Incident. That same day, February 25, 2010, a School Board police officer, Officer San Antonio, was dispatched to Ludlam. Officer San Antonio first spoke with Dr. Menocal and then with various students and Respondent. The following morning, at around 9:00 a.m., Respondent's second grade class put on a performance in the school cafeteria as part of a black history month event attended by parents (Performance). Following the Performance, Respondent invited the parents of her students to follow her and the class back to her classroom so that she could have a brief meeting with them (Post-Performance Meeting). Respondent began the meeting by praising the students' Performance. This praise, however, was short-lived, as Respondent started to complain to the parents about the students' "misbehaving" and "acting up" in class. As an example, she cited the altercation the day before between A. H. and A. P. (without identifying them by name). Respondent told the parents that "two little girls" had "got[en] into a fight" and that she was being accused of and investigated by the police for having "held one of them and [having] told the other girl to hit [the girl being held]." Respondent then said, "And I wouldn't do that" (knowing full well that, in fact, she had done "that"), after which she asked her students (including A. H. and A. P.) who were present in the room with the parents, "Did Mrs. Grey do that?" The students responded, in unison, "No, no."11 Respondent informed the parents that, because she "gets in trouble" when she "gets involved," she no longer would hesitate, when a student misbehaved, to prepare and submit to the principal's office a written referral that would follow the misbehaving student "all the way through high school." Later that morning (on February 26, 2010), at approximately 11:15 a.m., a DCFS child protective investigator, Donald Machacon, arrived at Ludlam to investigate the Incident (which Dr. Menocal had reported to DCFS the day before). After first speaking with Dr. Menocal, Mr. Machacon spoke with A. H., A. P., and three other students in Respondent's class.12 The last person Mr. Machacon interviewed at the school that day was Respondent. During her interview with Mr. Machacon on February 26, 2010, A. P. stated that, although at the time of the Incident she had thought she had heard Respondent instruct her to hit A. H., she must not have heard correctly because Respondent, earlier on February 26th, had spoken to her about the matter and denied ever having had given her such an instruction.13 A. P. attributed her having had misunderstood Respondent to Respondent's having had had a "hoarse voice" the day of the Incident. None of the other children Mr. Machacon interviewed at the school on February 26, 2010, including A. H., claimed to have any recollection of Respondent's ever having had told A. P. to hit A. H. (although each of them did tell Mr. Machacon that A. P. had hit A. H. while A. H. was being held by Respondent). Respondent, in her interview, indicated that she had held A. H. in order to "break up a fight," but she denied having had told A. P. to hit A. H. during the altercation. She also denied having had spoken about the Incident earlier that day (February 26, 2010) with A. H. and A. P. She did acknowledge, however, that she had referenced the Incident in a talk she had had with a group of parents shortly after the Performance that morning. She further acknowledged that, the day before (February 25, 2010), she had been questioned about the Incident by Officer San Antonio, who was at the school investigating the matter. By letter dated February 26, 2010, and received by Respondent on March 1, 2010, Dr. Menocal formally informed Respondent, in writing, that "[a]n investigation [was] being conducted" of a complaint made by an unnamed "juvenile" complainant alleging that Respondent had "held" her "so that another student could hit her." Among the parents who had attended the Post- Performance Meeting on February 26, 2010, was M. M., J. M.'s mother. M. M. left the meeting concerned about the safety of her daughter in Respondent's classroom given what Respondent had told the parents, particularly about the fight between the "two little girls" that the police had been called to the school to investigate.14 Moreover, M. M. thought that it was inappropriate for Respondent to have discussed the matter at the meeting. The following week, M. M. made arrangements to meet with Dr. Menocal so that she could air her grievances about Respondent. (These grievances were not only about what had occurred at the Post- Performance Meeting. They also concerned "classroom management issues.") Sometime before this meeting between M. M. and Dr. Menocal took place, M. M. learned more about the Incident from J. M. during a discussion the two had following a physical altercation between J. M. and J. M.'s sister. M. M. had initiated the discussion by asking whether J. M. believed that J. M.'s sister had deserved to be hit by J. M., a question to which J. M. responded in the affirmative. When M. M. inquired as to why J. M. felt this way, J. M. answered, "Well, it's like in Mrs. Grey's class, when you get hit, you hit back." In response to her mother's request that she elaborate, J. M. told M. M. about the Incident and how, after A. H. had hit A. P., Respondent had grabbed ahold of A. H., told A. P. to hit A. H. back,15 and then announced to the class, "This is what happens in Mrs. Grey's class, when you hit; you get hit back." M. M. had her meeting with Dr. Menocal approximately a week after the Incident. During her audience with Dr. Menocal, M. M. raised a number of complaints that she had about Respondent. She talked about, among other things, the comments and remarks Respondent had made to the parents and students in attendance at the Post-Performance Meeting, including those relating to the Incident and its aftermath. On March 8, 2010, Respondent was temporarily reassigned, "until further notice," from Ludlam to the School Board's Region III Office, where she engaged in "professional development" activities. By letter dated May 18, 2010, which she received on May 19, 2010, Respondent was advised that the School Board police had completed its investigation of the Incident and found probable cause to believe that she had violated School Board Rule 6Gx13-4A-1.21. The letter further advised Respondent of her right "to file a written exception" with the School Board's Office of Professional Standards (OPS).16 Respondent submitted to OPS her "written exception," by letter dated May 25, 2010. She subsequently sent to OPS a "[r]evised [v]ersion" of this letter, which read, in pertinent part, as follows: Pursuant to your letter dated May 18, 2010, informing me of the outcome of your investigation (SPAR #R-09002), I wish to exercise my right to provide a written exception to your findings. I take exception to your findings of probable cause to the violation because no such violation occurred. My intervention was simply to stop the aggressing child from hitting the other child and preventing a fight, possibly leading to injuries, between the two children. Below please find specific items with which I take issue . . . . * * * Det. Torrens also states that two students who were interviewed as witnesses told him exactly the same thing which, significantly, was not that I told one child to hit the other as the information from the two combatants indicate. These children also provided him with previously written statements. I would like to see the original documents; to know who took the statements and who was present. I would also like the children to be interviewed on tape as to the veracity of the statements, being cognizant of the fact that these are eight year olds who often repeat what they hear or are told.[17] I did not tell the one child to hit the other, nor did I hold one child so that the other could hit her. I was merely holding back the very aggressive child, who was struggling with me to get loose so that she could attack the other child. It was at this time that the other child, who was free, hit the child I was holding. There were seventeen children in the class at the time I separated the two girls. All seventeen children saw what happened and they all heard what happened. I would like all seventeen children to be separately interviewed on tape. * * * I also wish to clarify the issue of the administrative letter and the suggestion that I discussed the investigation with the parents. This incident occurred on Thursday, February 25th 2010. Officer San Antonio asked me what happened in my classroom on the very same Thursday that it occurred, and I told her that I saw one child crying and I asked her what was the matter. She told me that the other child had hit her, so I separated them. The aggressing child then got angry and wanted to fight, so I held on to her, when the other child came over and tapped her on the back. The Black History function was held on the following Friday (2/26/10). I had no discussions with any parents about the incident. In fact I was not aware that there was an investigation until Mr. Machacon came to the school the afternoon of that same Friday, and told me there were these allegations against me. I certainly could not discuss an investigation that I did not know about.[18] Furthermore, Dr. Menocal did not give me the administrative letter until the following Monday afternoon (3/1/10) and I got assigned to the region the following Monday (3/8/10), eleven days after the incident. I hope this letter helps to provide additional information which will aid in a more comprehensive fact gathering process to enable a fair and just review, with the concomitant overturn of the probable cause findings. These charges I take very seriously as I have dedicated my entire adult life (over thirty years) to the vocation of educating young children without a single incident. I have assiduously guarded the propriety of this noble profession and will resist any attempt to impugn my integrity or besmirch my character. On June 2, 2010, OPS held a conference-for-the-record, at which Respondent had an opportunity to verbally respond to the probable cause finding made by the School Board police. By letter dated July 21, 2010, Assistant Superintendent Rojas advised Respondent that OPS had made a "recommendation that [she] be suspended without pay 30 workdays via an agenda item [that would] be presented to [the School Board] at the meeting scheduled for September 7, 2010." In a subsequent letter, dated August 26, 2010, Assistant Superintendent Rojas informed Respondent that the Superintendent would be recommending to the School Board, at its scheduled September 7, 2010, meeting, that Respondent receive a 30-workday suspension. The School Board followed the Superintendent's recommendation and suspended Respondent without pay from September 8, 2010, through October 19, 2010. Furthermore, it directed Respondent to report to duty at Ludlam on October 20, 2010. Respondent has served her suspension. By letter dated September 8, 2010, Respondent "request[ed] a hearing to be held before an administrative law judge" to contest her suspension. The matter was thereafter referred to DOAH. A. P.'s and A. H.'s depositions were taken in anticipation of the hearing. At her deposition, A. P. declined to answer any questions. A. H. was deposed on December 6, 2010. When asked about the Incident, she stated that she had been hit by A. P. while being held by Respondent. It was her testimony that Respondent was simply "trying [to] keep [her and A. P.] apart," and that Respondent did not tell A. P. to hit her, an assertion that was in direct conflict with what A. H. had related to Dr. Menocal the day of the Incident, when the matter was fresh in A. H.'s mind and she had not yet been exposed to the remarks that Respondent would make at the Post-Performance Meeting.19 A. H. further testified during her deposition that, after the altercation, Respondent "called the office and the office came."20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Miami-Dade County School Board issue a final order upholding Respondent's 30-workday suspension for the reasons set forth above. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
The Issue Whether the Seminole County School Board is entitled to dismiss Respondent for just cause for misconduct in office and/or gross insubordination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner, the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of the school board. Respondent, Robert Brinkman, is employed by the School Board of Seminole County, Florida, as both a teacher at Sterling Park Elementary School and a custodian at another school in Seminole County and has a professional services contract for instructional personnel with the School Board of Seminole County. Respondent is 57 years old and has taught school for 23 years. No evidence was presented regarding his status as a custodian other than he was a custodian at the time he received his letter of suspension and that he was asked to "turn in his keys." He is not currently performing custodial services. On Wednesday, December 13, 2000, Respondent requested of his supervisor, Principal Deborah Wright, that he be given his paycheck on the following day, Thursday, December 14. The regular payday was Friday, December 15. Respondent advised Principal Wright that he had planned to go on vacation on the 15th and needed his paycheck a day early. Principal Wright refused to agree to give Respondent his paycheck early, advising him that no one else would be given the checks early and further advising him that he would have to reschedule his vacation. Respondent returned to the office he shared with Dawn Towle and, as characterized by both Respondent and Miss Towle, "he just lost it" and said "that black bitch won't give me my check." There is no evidence that this statement was overheard by any students; none were present. Whether the statement was directed to Miss Towle or not, she heard the statement and she responded, "excuse me?", to which Respondent replied "that black lady won't give me my check early." Miss Towle immediately reported the statement to Principal Wright. Principal Wright appropriately interpreted Respondent's statement as a racial remark made about her; the racial remark made her angry. Miss Towle suggests that on four occasions over a two school-year period, while she and Respondent shared their 10-square-foot office, she heard Respondent utter remarks that she considered "similar (racial) comments." The importance of these purported racial comments is discounted by the fact that they occurred in private conversations, some were not epithets or racial slurs, the only one concerning Principal Wright may not have been intended to be heard by anyone (Respondent "mumbled under his breath") and that Respondent denied having made any racial remarks other than the remark on December 13, 2000. Principal Wright called Respondent to her office, and in the presence of a witness, the assistant principal, told Respondent that "if you ever refer to me by any name other than Mrs. Wright, I will walk you out of the school on your toes." Under the circumstances, while the undersigned can only imagine the true import of the statement, it seems perfectly appropriate. Respondent immediately attempted to apologize; Principal Wright directed him to leave her office. He returned later that morning and again attempted to apologize and was again rebuffed. Principal Wright did not accept his apology because she did not believe his apology was genuine. Principal Wright acknowledged animosity toward Respondent based on previous instances with children; she was not aware of any prior racial remarks made by Respondent. Respondent mailed Principal Wright an apology one week after the incident indicating that "he was upset" and that his statement was "inappropriate and did not indicate how I feel about you." Principal Wright testified that Respondent had done nothing that was "racially harassing to her in the past," that his statement did not intimidate her or create a "hostile work environment," and that the statement (dealing with it) took time that she could have devoted to other job responsibilities. Respondent's statement, while clearly racially and sexually offensive, was isolated and not so severe as to create a hostile or abusive work environment. Principal Wright immediately reported the statement to John Reichert, who is charged by the School Board with the responsibility of investigating complaints of misconduct. Mr. Reichert arrived at Sterling Park Elementary School at 12:30 p.m., on the day of the incident. After interviewing Miss Towle and Principal Wright, he interviewed Respondent. Respondent acknowledged making the statement, said it was "a stupid thing to say" but that he was upset because he couldn't get his check, and that "he just lost it." The same day or the next, Respondent was suspended with pay which matured into a suspension without pay, effective January 17, 2001. The slur first heard or overheard by Miss Towle was indirectly published by Principal Wright to the assistant principal who became a witness to Principal Wright's admonishment of Respondent. While the assistant principal is not specifically aware of the text of Respondent's statement, she was made aware that Respondent had made a racial statement about Principal Wright. To the degree this remark has been further published, it is a result of appropriate investigative and administrative action taken by the School Board. There is no evidence that there is a general awareness, in the school system or the community, of Respondent's statement. Other than the testimony of Miss Towle, there is no suggestion that the Respondent made other sexual/racial statements. He has no record of sexual/racial misconduct. Respondent maintains that his remark was not racially motivated, that he was just very upset. He has enjoyed working for Principal Wright for five years. At the final hearing, Respondent again acknowledged that what he said was very inappropriate and that he is very sorry for what he said. There is no evidence that Respondent's remark actually impaired his effectiveness in the school system--which is a necessary factual component of the offense of misconduct in office. The only evidence received on the issue of impairment of Respondent's effectiveness in the school system is John Reichert's testimony that he had no knowledge that Respondent's effectiveness would be impaired anywhere beyond Sterling Park Elementary School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Seminole County School Board enter a final order dismissing the charges against Respondent and returning him to full duty, effective January 17, 2001, with all back pay and benefits. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. JEFFREY B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Sandra J. Pomerantz, Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Dr. Paul J. Hagerty Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773
The Issue Whether Respondent's teaching certificate should be suspended or revoked, or Respondent otherwise disciplined for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B-5, Florida Administrative Code, as set forth in the Administrative Complaint, dated October 21, 1980. This proceeding commenced with the Filing of an Administrative Complaint by the Commissioner of Education alleging that Respondent's teacher's certificate should be revoked or suspended, or other action taken, pursuant to Chapter 231, Florida Statutes, for gross immorality, moral turpitude, and engaging in conduct which seriously reduced his effectiveness, by reason of the alleged sale of cocaine to Tampa Police Department Detectives on November 16, 1979. The complaint also alleged that the Respondent was in violation of Section 231.09, F.S., in that he failed to provide a proper example for students, and of Chapter 6B-5, Florida Administrative Code, in that he had not practiced his profession at the highest ethical standard. The complaint was filed on October 21, 1980, and by an "election of rights" form received by the Professional Practices Services Section of the Department of Education on December 29, 1981, Respondent disputed the allegations of material fact of the complaint and requested a formal hearing before this Division. The case was thereafter referred by the Education Practices Commission to this Division by letter of January 6, 1981. By Order, dated January 15, 1981, the parties were advised of various procedural matters by the Hearing Officer, and paragraph 7 thereof quoted Model Rule of Procedure 28-5.104, F.A.C., concerning representation in administrative proceedings. Notice of Hearing was issued on February 4, 1981, for final hearing on April 23, 1981. Due to the fact that it was later determined that an incorrect address had been used on the notice for Respondent, an Amended Notice of Hearing was issued on March 11, 1981. On April 20, 1981, a letter from Respondent to Petitioner's counsel dated April 12, 1981, was received in this Division after referral by said counsel. The letter requested that Petitioner's counsel inform him of a court appointed attorney to represent him since he could not afford to hire an attorney to defend him. He further asked that he be granted a continuance until the problem could he resolved. Petitioner's counsel informed Respondent, by letter dated April 16, that he was unable to assist him in his request. On April 22, the Hearing Officer advised Respondent telephonically that there was no provision for "court appointed counsel" in administrative proceedings and that due to the lengthy period of time since Respondent had been aware of the pendency of the proceeding and of his rights to representation, and because Petitioner's counsel had orally communicated objection to any continuance, that his request was denied. Respondent stated that he did not intend to appear at the hearing and, in a later telephone conversation on the same date, stated that he was transmitting a telegram withdrawing his request for hearing. Since no such communication was received on April 22, the hearing commenced as scheduled. At that time, Respondent appeared at the hearing and renewed his motion for continuance over objection of Petitioner, and the prior denial was reaffirmed. Upon inquiry by the Hearing Officer, Respondent stated that he did not wish to represent himself and that he would not participate in the proceedings other than to submit a letter and accompanying copy of the decision of the Third District Court of Appeals in the case of Pearl v. Florida Board of Real Estate, Case No. 80-347, opinion issued February 17, 1981. In his letter, Respondent requested that consideration be taken of his record as a counselor for seven years at Sligh Junior High School in Tampa, Florida, and that his certificate not be revoked. (Hearing Officer's Exhibit 1) Respondent was thereupon advised of his rights in administrative proceedings, but although he remained in the hearing room during the course of the hearing, he took no further part in the proceedings. Petitioner filed prehearing discovery requests which were not responded to by Respondent. Petitioner thereafter Filed a Motion for an Order Compelling Discovery and Respondent failed to respond thereto. By Order dated March 26, 1981, the motion was granted and Respondent was provided a period of ten days to either respond to Petitioner's discovery requests or to assert any rights against self-incrimination as to individual requests. Respondent did not respond to the foregoing order and therefore, a subsequent order was issued on April 8, 1981, wherein it was ordered that pursuant to Rule 1.370(a), Fla.R.Civ. P., the matters of which Petitioner's First Requests for Admissions were requested were deemed admitted by the Respondent for the purpose of this proceeding. Petitioner presented the testimony of four witnesses and submitted five exhibits in evidence. Additionally, at the request of Petitioner, official recognition was taken of orders issued by the State Board of Education from 1976-1981 relating to drug-related cases in administrative license disciplinary proceedings. (Hearing Officer's Exhibit 2)
Findings Of Fact Respondent David Michael Knox holds certificate No. 325767, postgraduate rank II, which expires on June 30, 1982, covering the areas of biology, science, junior college and guidance. (Complaint) Respondent's address on December 16, 1979, was 7409 El Encanto Court, Apartment 203, Tampa, Florida. At all times material, Respondent was employed by the Hillsborough County School System as a guidance counselor. As a guidance counselor, Respondent counseled students with drug problems. (Petitioner's First Request for Admissions) On November 16, 1979, Detective Candice Moore, Tampa Police Department, pursuant to information supplied by a confidential informant that cocaine could be purchased from Respondent, telephoned Respondent to arrange such a purchase. During the course of the conversation, Respondent agreed to sell Moore a quantity of narcotics at his residence that evening. Detective Moore arrived at Respondent's residence at approximately 6:50 P.M. and was invited into the house by Respondent. He then showed her two packages and told her that she could choose the one that she wanted. She selected one of the packages. Respondent then brought out a tray on which there was a substance divided into six "lines." Respondent told Moore that she could sample the first and second lines. She simulated "snorting" the substance and also tasted it. Respondent "snorted" two lines of the substance and then told her to take the last two lines. She again simulated that she was taking the drug. Detective Moore had tasted cocaine before in the course of her duties and had determined that cocaine has a distinctive taste. The substance that she tasted at Respondent's residence tasted like cocaine. Detective Moore gave Respondent $85.00 in U.S. currency and put the package, which appeared to contain approximately one gram of the substance, in her purse. Detective Moore and Respondent then spoke of the possibility of future transactions, and he told her that if she wanted more cocaine in the future to provide him several days notice since he only kept two to three grams at his home. He further told her not to tell anyone where she had obtained the cocaine and that everything would then be "cool" and they could do business together in the future. After leaving the apartment, Detective Moore observed another detective at the police station perform a chemical reagent test on the contents of the package which she had purchased. The test was positive for cocaine. The contents of the package was then identified under evidence No. 9E-10250 and a small sample was sent to the State Crime Laboratory for analysis under evidence No. 9E-10251. Laboratory analysis utilizing standard testing procedures established that the substance gas cocaine. (Testimony of Moore, Booth, Wilbarger, Kasten, Petitioner's Exhibits 1-2) Respondent thereafter was charged with delivery of cocaine and possession of cocaine in violation of Sections 893.13(1)(a)(2), and (1)(e), Florida Statutes. On July 9, 1980, Respondent entered a plea of of nolo contendere to the charges in the Hillsborough County Circuit Court, Case No. 80- 780. The Court entered an order that adjudication of guilt and imposition of sentence be withheld, and Respondent was placed on probation for a period of three years. 1/ (Petitioner's Exhibits 3-5) Joseph C. Greco, Supervisor of Guidance Services for the Hillsborough County School System, is of the opinion that a high school guidance counselor who is arrested for the possession of cocaine would set a poor role model example for students and that his effectiveness in the school system would be diminished. He further is of the opinion that such a person would not have adhered to the highest ethical standards required of personnel in the school system. (Testimony of Greco)
Recommendation That Respondent's teaching certificate be permanently revoked, pursuant to Chapter 231, Florida Statutes. DONE and ENTERED this 18 day of May, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1981.
The Issue Whether Petitioner, Palm Beach County School Board ("Petitioner" or "School Board") proved by clear and convincing evidence that it has just cause to discipline Respondent, Jeffrey Schector, and, if so, what is the appropriate penalty.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: The School Board is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all times relevant to this case, Respondent was employed as a math teacher at Eagles Landing Middle School in the School District of Palm Beach County, Florida. A Collective Bargaining Agreement existed, which governed relations between the School Board and certain employees, including Respondent. Resp. Ex. 7. Article II, Section M of the Collective Bargaining Agreement, Discipline of Employees (Progressive Discipline), provided, in relevant part: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this agreement. Further, an employee shall be provided with a written notice of wrong doing, setting forth the specific charges against that employee prior to taking any action. * * * 5. Only previous disciplinary actions which are a part of the employee's personnel file which are a matter of record as provided in paragraph 7 below may be cited. * * * 7. Except in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation * * * Written Reprimand * * * Suspension Without Pay * * * Dismissal . . . . Respondent acknowledged receipt of the School Board's Code of Ethics on October 13, 2010. See Pet. Ex. 1. While teaching at Eagles Landing Middle School, Respondent received a Memorandum of Specific Incident dated January 29, 2013, for a lack of professionalism displayed during interactions with the mathematics team. Pet. Ex. 2. Written Reprimand on December 2, 2013 Respondent was disciplined and issued a written reprimand on December 2, 2013, for violations of School Board policies regarding Commitment to Student Principles, Code of Ethics, and state statutes regarding the education professional. He had been found to have engaged in inappropriate horseplay with a student which ended with the student falling to the floor. Additionally, Respondent tossed a student's crutches from his classroom and referred to the student as a "cripple." In the reprimand, Respondent was advised to cease and desist from engaging in the same or similar conduct in the future, and, if he did not, he would be subject to further discipline up to and including termination. Pet. Ex. 7. The evidence during the hearing reflected that Respondent had received several recent performance evaluations during his tenure with the School Board. For the 2013 school year, his performance evaluation was "effective." For an evaluation submitted April 17, 2014, he received "highly effective" marks in instructional practice. For the 2015 school year, he received an annual evaluation of "highly effective" for instructional practice, "effective" for student growth, "highly effective" for deliberate practice, and "highly effective" for evaluation level. Resp. Ex. 4. Classroom Incident on May 4, 2015 Respondent was teaching math to eighth-grade students in a portable building at Eagles Landing Middle School. Near the end of the lesson, Respondent became aware that two male students were engaged in horseplay with another student, J.G.1/ One of the two male students grabbed a water bottle from J.G. intent on annoying and/or harassing J.G. This horseplay caused the water bottle top to come off, resulting in water spewing on several of the boys and also dousing several school documents Respondent had on his desk. Upon seeing the mess that was created, Respondent stood up and screamed "I am fucking tired of this shit and I don't appreciate having my stuff destroyed." The comment was not directed at anyone in particular. Respondent then took the water bottle, walked to the back door of the classroom, and threw it outside. He then went back to his desk and, as he put it, "was stewing about what had happened." Sometime later, just before the end of the class period, Respondent noticed that one of the males had dropped his cell phone on the floor by his desk. Respondent walked over, bent down and picked up the phone, and put it in his pocket. Apparently, the student was not aware that Respondent had picked up his phone. Respondent admitted that he had taken the cell phone for the purpose of teaching the student a lesson and that he intended to hold on to it until dismissal. As he put it, "it would be nice to watch G.P. [the student who owned the phone] squirm for a little bit." When the dismissal bell rang, the student started looking frantically for his cell phone. At that point, J.G. went over to G.P. and told him that Respondent had his phone. This made Respondent angry. He stated that he felt that J.G. "had sabotaged his plans." Respondent raised his voice and began yelling at J.G. claiming that he had "sold him out" and why could he do such "an idiotic thing." There was conflicting evidence concerning whether or not any profanity was used by Respondent.2/ Respondent then followed J.G. outside the classroom and continued to berate him. Respondent used some other choice words against J.G. including calling him "stupid" and "idiotic." Respondent admitted that the May 4, 2015, incident was not the first time he used profanity in the classroom and that it was not the first time he ever become angry, or made any harsh comments to a student. J.G. testified by way of deposition taken on February 1, 2016. He claimed that when the water bottle incident occurred, Respondent was yelling in general.3/ J.G. testified that the conduct of Respondent shocked him and made him nervous because he had never seen a teacher react like that to anything. When J.G. told the other student that Respondent had his phone, Respondent started screaming at him and had a "melt down," as he described it. J.G.'s recollection of the event was fairly detailed and consistent. He said that Respondent called him "stupid," "retarded," and an "idiot." He cursed at J.G. using the F_ _ _ word, the S_ _ _ word, and accused J.G. of being a "F_ _ _ing idiot." When Respondent cursed at him, it made J.G. feel very shocked and embarrassed, particularly in front of the other students. He acknowledged, however, that this was the first time that Respondent ever got in his face and yelled or cursed at him. Notably, J.G. admitted that since the May 4, 2015, incident his academic career has been the same and that he is actually doing better this year, than last year. Also, after the incident on May 4, 2015, J.G. testified that much of the harassment decreased. Apparently, one of the male students involved in the incident received an in-school suspension for the name-calling incident and stayed away from J.G. The other student, as well, was not making fun of him like he had done previously. Several students, including the two male students involved, testified by way of their deposition transcripts. Each recalled the incident on May 4, 2015. The students each had a similar recollection of the basic events. They confirmed that Respondent got very upset, was screaming, and used some curse words and demeaning language. Several of the students acknowledged, in general, that the incident resulted in the classroom antics and horseplay subsiding. Each provided a written statement which was reviewed by the undersigned. Following the incident on May 4, 2015, Respondent was removed from the classroom, but was allowed to return to school on May 11, 2015, to begin teaching again. He taught until the end of that school year-–until approximately June 6, 2015. During the summer of 2015, Respondent received a letter from the principal reappointing him to his teaching position at Eagles Landing Middle School for the 2015-2016 school year. Approximately 11 days after the new school year began, Respondent was requested to attend a pre-disciplinary hearing relating to the May 4, 2015, incident. After the pre- disciplinary meeting, he was allowed to return to his classroom until October 9, 2015. In early October 2015, Respondent was directed to attend several Employee Assistance Program meetings. He attended four different sessions through November 4, 2015, when he was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board discipline Respondent with an unpaid suspension covering the period of time Respondent has been suspended from his teaching duties, but immediately reinstate him to his teaching duties. No back pay is recommended. The undersigned also recommends that Respondent be required to attend and successfully complete an anger management class after reinstatement. DONE AND ENTERED this 13th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 13th day of April, 2016.
The Issue Whether the Respondent committed the violations alleged in the Petition dated May 29, 2009, 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; § 1001.32, Fla. Stat. (2008).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Dunaway has been a teacher with the School Board since 1988. At the times pertinent to this proceeding, she was employed under a professional service contract as a third-grade teacher at Elbridge Gale Elementary School. As a classroom teacher in Palm Beach County, Ms. Dunaway's employment is subject to the collective bargaining agreement between the School Board and the local teacher's union. Disciplinary action was taken against Ms. Dunaway prior to the events giving rise to this proceeding. On April 18, 2007, the School Board issued a Written Reprimand for Violation of School Board Policy 3.96, Drug- and Alcohol-Free Workplace, after a drug test administered by the School Board in 2007 showed a positive result for cocaine. In the written reprimand, Ms. Dunaway was advised that, if she failed to comply with School Board Policy 3.96, a recommendation for termination of her employment with the School Board would be issued. Pursuant to the collective bargaining agreement, the written reprimand was placed in Ms. Dunaway's personnel file. Ms. Dunaway began using cocaine in 2003 as a result of her feelings of devastation, humiliation, and embarrassment after an ex-boyfriend sent nude pictures of her, via electronic mail, to every employee of the school at which she was a teacher. After she tested positive for cocaine in the early part of 2007, Ms. Dunaway requested and received assistance through the School Board's Employee Assistance Program, and she stopped using cocaine as a result of her successful completion in November 2007 of an intensive program at the Gratitude House Ms. Dunaway was transferred to Elbridge Gale Elementary School in August 2008. Ms. Dunaway had a strained relationship with the school principal, Gail Pasterczyk. Ms. Dunaway felt that she was subjected to frequent, intense scrutiny by Ms. Pasterczyk, and this caused Ms. Dunaway to feel uncomfortable and increasingly anxious. According to Ms. Dunaway, Ms. Pasterczyk conducted a formal evaluation of Ms. Dunaway's teaching performance on Thursday of the second week in February 2009, which was February 12, 2009. Ms. Pasterczyk was very critical of Ms. Dunaway and gave her a poor evaluation. Ms. Dunaway was very upset about the poor evaluation and, on Friday, February 13, 2009, she used cocaine for the first time since November 2007. Ms. Dunaway admitted that she took "lots of [cocaine]” but stated that she had "stopped on Friday."2 Ms. Dunaway returned to school the following Tuesday, February 17, 2009, because Monday was a holiday. According to Ms. Dunaway, she had a very bad toothache during the weekend and arranged a dentist appointment for Tuesday afternoon. She was very nervous and took Xanax, which had been prescribed for her in February, to ease her anxiety. Ms. Dunaway claimed to have taken a Xanax right before lunch on Tuesday and to have become so "inebriated" from the Xanax that she doesn't remember anything that happened after she noticed that she was slurring her speech. On Thursday, February 19, 2009, while Ms. Pasterczyk was eating lunch in the teachers' dining room, several third- grade teachers approached her and expressed their concern about Ms. Dunaway's behavior during the morning and at lunch. Ms. Pasterczyk went to Ms. Dunaway's classroom and observed Ms. Dunaway standing at the front of the classroom, slurring her words, saying inappropriate things in front of the class, and using an overhead projector, unaware that the paper she had on the projector was upside down until she was alerted to this by her third-grade students. Ms. Pasterczyk returned to her office and consulted with Britoni Garson in the School Board's employee relation’s office. Ms. Garcon sent Ms. Pasterczyk a Drug and Alcohol Documentation of Observable Behaviors form by facsimile transmittal, which Ms. Pasterczyk completed and sent back to Ms. Garson by facsimile transmittal. On the form, Ms. Pasterczyk noted that she had observed sudden changes in Ms. Dunaway's behavior, emotional behavior, nervousness, slurred speech, increased and/or loud talking, and hand tremors. Ms. Garson reviewed the documentation submitted by Ms. Pasterczyk and determined that there was reasonable cause to subject Ms. Dunaway to a drug test. Ms. Garson contacted Ms. Pasterczyk and told her that she was to go to Ms. Dunaway's classroom and accompany Ms. Dunaway to her office, where they would wait for the drug-test team to arrive. Ms. Pasterczyk did as Ms. Garson directed, and the drug test was administered to Ms. Dunaway at approximately 2:30 p.m. on Thursday, February 19, 2009. The results were submitted to the School Board on February 25, 2009, and were positive for cocaine and for benzodiazepines, the family of drugs within which Xanax falls. Cocaine is a mood-altering drug that raises a person's tempo and makes them more animated. Xanax is a type of tranquilizer that is prescribed for people who are nervous or who cannot sleep, and it has a calming effect. Cocaine stays in the body for two to three days, but, by the fourth day after use, the results of a drug test would be negative for cocaine, that is, the amount if cocaine would be less than 300 nanograms per milliliter. Ms. Dunaway met with Alfredo Taulh to discuss her test results, and Mr. Taulh advised her that she could challenge the results of the drug test within seven days; she did not do so. The School Board conducted an investigation and, after going through all of the pre-disciplinary steps required by the collective bargaining agreement, the Superintendent of the Palm Beach County school system issued a Notice of Suspension and Recommendation for Termination from Employment dated April 24, 2009, advising Ms. Dunaway that he intended to recommend to the School Board her suspension without pay and termination of employment at the May 6, 2009, School Board meeting. Article II, Section M of the collective bargaining agreement governs the discipline of employees. Article II, Section M of the collective bargaining agreement provides in pertinent part: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. . . . * * * Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph # 7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, and employee may be reprimanded verbally, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation . . . Summary Written Reprimand - A written reprimand may be issued to an employee when appropriate in keeping with this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay . . . Dismissal - An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with the provisions of this Section, including just cause and applicable laws. Based upon a consideration of all of the evidence presented, the proof is sufficient to establish with the requisite degree of certainty that, under the circumstance of this case, the School Board's decision to terminate Ms. Dunaway conforms to the progressive discipline provisions in Article II, Section M 7., of the collective bargaining agreement. Ms. Dunaway's action in ingesting large quantities of cocaine that remained in her system when she reported for work demonstrates a flagrant disregard of the School Board's policy of ensuring a drug-free workplace, a policy with which Ms. Dunaway was familiar as a result of the written reprimand she received in 2007 for her first violation of the policy. Ms. Dunaway's testimony that she did not ingest cocaine after Friday, February 13, 2009, is rejected as not credible. The drug test was administered on Thursday, February 19, 2009, and, given that cocaine is entirely dissipated from the human body within four days, Ms. Dunaway would have tested negative for cocaine if she had not ingested any of the drug since the previous Friday, six days, prior to the drug test. In order to test positive for cocaine on Thursday, Ms. Dunaway must have ingested cocaine on Monday, a school holiday, and she could have ingested cocaine at any time between Monday and Thursday. Ms. Dunaway attributed the positive test result for benzodiazepine to the Xanax she had taken to calm her anxiety about a dental appointment she had in the afternoon of Tuesday, February 17, 2009. According to Ms. Dunaway, she took the Xanax before lunch and, after realizing that her speech was slurred, remembered nothing more about the afternoon. Ms. Dunaway may have had a dental appointment on Tuesday afternoon, and she may have taken Xanax at school, but it is clear from the context of her testimony that Ms. Dunaway was referring to a lapse in memory that occurred on the day on which the drug test was administered, that is, on Thursday, February 19, 2009. The inconsistencies in Ms. Dunaway's version of the events surrounding her ingestion of cocaine and Xanax undermine the credibility of her testimony as a whole and make it difficult to credit her claim that she was not under the influence of cocaine on the day of her drug test. Even if her version of events is credited, the fact remains that she tested positive for cocaine and for benzodiazepine on Thursday, February 19, 2009. Regardless of whether her condition on that day was the result of the cocaine in her system or of the Xanax in her system or of the combination of drugs, it is reasonable to infer that her presence in a third-grade classroom when she was so impaired that she had no recollection of being there constituted a real and present danger to the students in her class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order sustaining the suspension of Debra Dunaway without pay and terminating her employment. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 29th day of January, 2010.
The Issue The issue in this case is whether Respondent, Daniel Presmy, committed the violations alleged in the Recommendation for Suspension and Termination for Employment, and if so, what disciplinary action should be taken against him.
Findings Of Fact Daniel Presmy (hereinafter "Presmy" or "Respondent") has been a teacher for six years with Palm Beach County School Board (hereinafter "School Board"). He has always taught elementary students. Presmy has had no prior disciplinary action taken against him by the Superintendent of Palm Beach County School Board or the School Board. Presmy was a certified teacher in the School Board of Palm Beach County. On December 11, 2006, while in his classroom Presmy was teaching his third-grade class, and three students who were not students in his classroom showed up and disrupted the class. Presmy requested that the students leave his room. The students did not leave upon the initial request. One student informed Presmy that a student in the class had his eraser. Presmy then asked his class who had the eraser. Subsequently, an eraser flew to the front of the classroom and fell on the floor. Presmy picked up the eraser and handed the eraser to the student who had requested it. Presmy turned back to his class and was hit on the temple with the eraser. Presmy turned back around toward the student who he had given the eraser to and the student raised his hand. Again, Presmy told the student to leave. The student continued to stand in the middle of the doorway to Presmy's classroom and would not leave. While Presmy remained in his classroom, he used his fingertips to push the student's head and told the student (hereinafter "student victim") to "leave and don't come back here." Presmy "didn't think that [he] was doing anything wrong by telling him to leave with a gesture to leave." Presmy's reaction of touching the student was inappropriate. However, no evidence was demonstrated that the student was hurt during the incident. Presmy did not press the buzzer or contact and ask for any assistance regarding the incident because he didn't think it was necessary. On December 11, 2006, Officer Price was paged regarding the incident and she returned the call. She was informed that a student reported that he had been hit by a teacher at Roosevelt. Price interviewed the student victim and witnesses regarding the incident with Presmy. The School Board initiated an investigation into the incident. During the investigation, Respondent met with Detective Walton. Presmy told the investigator that he pushed the student victim in the head and told him to leave.2 The investigator concluded his investigation and presented the case to the State Attorney’s Office for review. As a result, Daniel Presmy was criminally charged with Battery as a violation of Florida Statutes. On August 2, 2007, Presmy pled guilty to the battery charge as a negotiated plea agreement so as not to put himself and his family through a lengthy trial and under the advice of his lawyer. His sentence was 45 hours community service, 12 weeks of anger management, 12 months of probation with early termination after six months and a $595 court fee. Petitioner alleges Respondent, by his conduct, violated School Board Policies 0.01, 1.013 and 3.12, and State Board of Education Rules 6B-1.001 and 6B-1.006. Subsequently, the School Board of West Palm Beach County at a meeting on October 24, 2007, voted to suspend Presmy without pay effective October 25, 2007, and initiated dismissal proceedings.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Palm Beach County School Board find Presmy had inappropriate physical contact with a student but apply the progressive disciplinary policy to determine his punishment. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 11th day of August, 2008.
The Issue Whether just cause exists for Petitioner to suspend Respondent for 30 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed as a teacher at Henry E.S. Reeves Elementary School (“Henry Reeves”), a public school in Miami-Dade County, Florida, pursuant to a professional services contract. Respondent was initially hired by the School Board as a teacher in 1982. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement (“CBA”) between the School Board and the United Teachers of Dade (“UTD”). Julian Gibbs, the principal of Henry Reeves (“Principal Gibbs”), was authorized to issue directives to his employees, including Respondent. The 2011-2012 School Year After holding various teaching positions within the School Board, Respondent was assigned to Henry Reeves beginning with the 2011-2012 school year. On August 18, 2011, Respondent arrived late to work on her first day at Henry Reeves. Respondent was supposed to arrive at Henry Reeves at 8:20 a.m., for a pre-planning faculty meeting and to set-up her room, but she did not arrive until after 12:30 p.m., because she reported that morning to another school, Van E. Blanton Elementary School. On August 23, 2011, Principal Gibbs issued Respondent a Professional Duty and Responsibilities memorandum concerning Respondent’s tardiness and informed Respondent that failure to report to work on time in the future would result in further disciplinary action.1/ Some time during the next few weeks, Principal Gibbs conducted an informal classroom walkthrough of Respondent’s class. At that time, Principal Gibbs observed that Respondent did not have any lesson plans, grades for students, or a “print- rich” classroom and outside bulletin board.2/ On September 16, 2011, Principal Gibbs issued Respondent a Professional Responsibilities memorandum for failing to display current student work, update and have print-rich classroom and outside bulletin boards, timely grade and file student assignments, label data charts, and graph student assessment results. Respondent was advised to ensure she fulfilled these responsibilities by September 20, 2011. On January 4, 2012, Principal Gibbs issued Respondent a Professional Responsibilities memorandum for failing to update outside bulletin boards and ensure her desk was organized and clutter free. The memorandum advised Respondent to ensure she fulfilled these responsibilities by January 6, 2012. The 2012-2013 School Year On October 17, 2012, Principal Gibbs issued Respondent a Professional Responsibilities memorandum for allegedly not providing updated lesson plans for a substitute teacher when she was absent on October 8 and 12, 2012. However, the School Board did not prove at the hearing that Respondent failed to provide updated lesson plans for a substitute teacher when she was absent. Although Principal Gibbs testified about the October 17, 2012, memorandum he authored, he lacked personal knowledge of the lack of updated lesson plans for the substitute teacher on October 8 and 12, 2012. No witness with personal knowledge of the lack of updated lesson plans for the substitute teacher testified at the hearing. The content of the memorandum is hearsay. In any event, the October 17, 2012, memorandum directed Respondent to “read and review the Code of Ethics cited in The School Board of Miami-Dade County Bylaws and Policies, 4210.01 and Common Sense Suggestions and School Board Policy 1139, Responsibilities and Duties for Full-Time Personnel.” Principal Gibbs informed Respondent that failure to comply with her “professional responsibilities may be considered a violation of School Board and Administrative policies.” On November 29, 2012, Principal Gibbs issued Respondent a Professional Responsibilities memorandum for arriving late to two meetings on November 13 and 29, 2012. Principal Gibbs informed Respondent that it is her “professional duty and responsibility to report to all scheduled meetings on time” and “to review all notifications in regards to scheduled meetings and events.” Principal Gibbs informed Respondent that failure to comply with her “professional responsibilities may be considered a violation of School Board and Administrative policies.” On December 12, 2012, Principal Gibbs placed Respondent on support dialogue following an observation he made of Respondent in her classroom. Support dialogue involves a “two-way conversation” between the principal and teacher to develop strategies so that the teacher may improve for the next evaluation. Respondent was upset that she was placed on support dialogue. During the support dialogue meeting between Principal Gibbs and Respondent, Respondent spoke to Principal Gibbs in a loud manner. Later that day during dismissal, Respondent again spoke to Principal Gibbs in a loud manner, but this time in front of other teachers. Because of Respondent’s loud tone of voice during and after the support dialogue meeting, Principal Gibbs issued Respondent a Professional Responsibilities memorandum advising her to “immediately refrain from exhibiting inappropriate behavior, and adhere to all school site and M-DCPS policies and regulations at all times, specifically School Board Policies 3210, Standards of Ethical Conduct, 3210.01, and Code of Ethics.” Respondent was informed that “[a]ny recurrence of the above infraction may lead to further disciplinary actions.” On December 18, 2012, Principal Gibbs held a Conference For The Record (“CFR”) with Respondent, because she allegedly struck a student with a ruler. During the conference, Principal Gibbs provided Respondent with a copy of School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics, and “How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching.” Respondent was “advised of the high esteem in which M-DCPS employees are held and of the District’s concern for any behavior which adversely affects this level of professionalism.” Respondent was “reminded of the prime directive to maintain a safe learning environment for all students.” Respondent was informed that “[n]oncompliance with these directives will necessitate further review for the imposition of additional disciplinary measures and will be deemed as insubordination.”3/ During the December 18, 2012, conference, Principal Gibbs issued Respondent a written letter of reprimand. The written reprimand directed Respondent to: 1) immediately refrain from inappropriate physical contact/discipline with students; 2) adhere to all School Board policies and regulations at all times, specifically School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; and 3) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Respondent was informed that “[a]ny recurrence of the above infraction may lead to further disciplinary actions.”4/ On January 16, 2013, Principal Gibbs issued Respondent “Absences and Tardies From Work Directives,” because Respondent was allegedly tardy and/or absent from work during the 2012-2013 school year on the following occasions: October 1, 2012: tardy one hour October 8, 2012: sick one day October 11, 2012: tardy 1 ½ hour October 12, 2012: personal one day October 25, 2012: sick one day December 4, 2012: personal one day December 6, 2012: sick one day December 12, 2012: sick one day December 19, 2012: personal .5 day January 9, 2013: sick one day January 10, 2013: sick one day January 15, 2013: sick one day However, the School Board failed to prove at the hearing that Respondent was tardy and/or absent from work as indicated in the directives and accompanying documentation. Although Principal Gibbs testified about the January 16, 2013, directives he authored, he lacked personal knowledge of the tardiness and absences. No witness with personal knowledge of the tardiness and absences testified at the hearing. The content of the memorandum and accompanying documentation are hearsay. In any event, Respondent was informed that “[n]on-compliance with the directives will be considered a violation of professional responsibilities and insubordination.”5/ On February 22, 2013, Principal Gibbs issued Respondent a Professional Duty and Responsibility memorandum because she was allegedly six minutes late picking up her students from the cafeteria. Although Principal Gibbs testified about the February 22, 2013, memorandum he authored, he lacked personal knowledge of the incident. No witness with personal knowledge of the incident testified at the hearing. The content of the memorandum is hearsay. In any event, Respondent was informed in the memorandum that “[i]t is essential that all teachers pick up their classes on time, especially when other classes are entering the cafeteria.” On March 14, 2013, Principal Gibbs held a CFR with Respondent because she “grabbed” a student “by the arm” on some unspecified date and time when the student was attempting to obtain a set of headphones out of his backpack. Principal Gibbs witnessed this incident [while] conducting an observation of Respondent in her classroom. However, at the hearing, Principal Gibbs provided no further detail regarding the alleged incident other than indicating that Respondent “grabbed” the student “by the arm.” There was no evidence presented at the hearing that Respondent caused the student any emotional or physical injury. The student did not testify.6/ In any event, the CFR directed Respondent to: 1) immediately refrain from inappropriate physical contact/discipline with students; 2) adhere to all School Board policies and regulations at all times, specifically School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; and 3) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. The 2013-2014 School Year The School Board alleged in paragraph 18 of its Amended Notice of Specific Charges that: “On September 13, 2013, a parent reported that her child had been poked under the eye and Respondent failed to render first aid. When asked about the incident, Respondent was completely unaware that a student had been injured [while] under her supervision.”7/ The School Board failed to prove that a student was poked under the eye on September 13, 2013, while under Respondent’s supervision. The parent’s report is hearsay. No students, parents, or witnesses to the alleged incident testified at the hearing. Respondent denied the allegations. In an effort to demonstrate that Respondent is guilty of the allegations, however, the School Board points to Principal Gibbs’s testimony that he “personally observed the lead mark under the child’s eye.” This observation by Principal Gibbs allegedly occurred at some point on September 13, 2013, after the school’s dismissal of students, and after “the parent” returned to the school with the child. The undersigned finds that Principal Gibbs’s testimony is unpersuasive. Even if Principal Gibbs observed a lead mark under a child’s eye at some time after the alleged incident occurred, that does not prove that the child was poked under the eye while under Respondent’s supervision. The child could have been poked under the eye at any time and anywhere. Principal Gibbs’s conclusion that a child was poked under the eye with a pencil while under Respondent’s supervision is based on speculation and hearsay of the parent and students. Nevertheless, on September 16, 2013, Principal Gibbs issued to Respondent a Professional Responsibilities memorandum regarding the alleged incident, requiring her to “[e]nsure the safety and well-being of students at all times”; “[m]aintain close supervision of students at all times”; “[r]eport immediately to administration any accidents or incidents involving student welfare”; and “[n]otify parents in regards to any accident or incidents occurring with students.” The School Board alleged in paragraph 19 of its Amended Notice of Specific Charges that: “On September 17, 2013 Respondent informed Mr. Gibbs that she had scratched ‘L.G.’, her student.” The School Board failed to prove that Respondent scratched a student under her supervision as alleged in paragraph 19 of the Amended Notice of Specific Charges. No evidence was adduced at hearing in support of the School Board’s allegations in paragraph 19 of the Amended Notice of Specific Charges. Moreover, the School Board failed to address this issue in its Proposed Recommended Order. The School Board alleged in paragraph 20 of its Amended Notice of Specific Charges that: “On September 18, 2013, a parent reported that her child had been stabbed . . . three times with a pencil by another student. Respondent failed to render first aid and failed to notify the other student’s parents.” The School Board failed to prove that a student was stabbed with a pencil by another student while under Respondent’s supervision as alleged in paragraph 20 of the Amended Notice of Specific Charges. Again, the parent’s report is hearsay. No students, parents, or witnesses to the alleged incident testified at the hearing. In an effort to demonstrate that Respondent is guilty of the allegations, however, the School Board argues in its Proposed Recommended Order that: “[w]hen Respondent was asked about the incident, she indicated that she was on the other side of the room when it happened.” The School Board’s position, however, contradicts Principal Gibbs’s testimony at the hearing when he was asked: Q. Did you speak to Ms. Parris about this incident? A. Yes, I did. Q. And what did she say to you? A. She doesn’t recollect the child being poked by another child in the wrist with the pencil. She just had no memory. Transcript, pages 53-54. Nevertheless, on September 19, 2013, Principal Gibbs issued to Respondent a Professional Responsibilities memorandum regarding the alleged incident, requiring her to “[e]nsure the safety and well-being of students at all times”; “[m]aintain close supervision of students at all times”; “[r]eport immediately to administration any accidents or incidents involving student welfare”; and “[n]otify parents in regards to any accident or incidents occurring with students.” The School Board alleged in paragraph 21 of the Amended Notice of Specific Charges that: “Based on the witness statements, the following was gathered during the investigation: i. On September 24, 2013, under Respondent’s supervision, or lack thereof, four students were injured. [One] student, ‘A.J.’ was taken to the hospital by her mother hospital [sic] because of a facial contusion.” The School Board failed to prove that any students were injured while under Respondent’s supervision as alleged in paragraph 21 of the Amended Notice of Specific Charges. Any witness statements are hearsay. No students, parents, or witnesses to the incident testified at the hearing. The School Board argues in its Proposed Recommended Order that on September 25, 2013, a third incident occurred in Respondent’s classroom. Specifically, the School Board contends: “A parent approached administration concerned about the safety of her child. . . . The student had been kicked in the face causing her face to swell.” Notably, this alleged incident is not referred to in the Amended Notice of Specific Charges. The notice was, therefore, insufficient to inform Respondent of the School Board’s contention. Even if Respondent was on notice of the allegations, however, the School Board failed to prove that a student was kicked in the face while under Respondent’s supervision. The parent’s report is hearsay. No students, parents, or witnesses to the incident testified at the hearing. Respondent denied the allegations. Notably, Principal Gibbs testified that when asked about the incident, Respondent “said that she doesn’t recall a child being kicked in the face, but allegedly she was pushed by another child in the class, but she doesn’t recall the child being kicked in the face.” The undersigned finds that Principal Gibbs’s testimony is not credible and is unpersuasive. The purported statement contradicts what Principal Gibbs wrote in the September 26, 2013, Professional Responsibilities memorandum. At that time, Principal Gibbs wrote that when Respondent was “asked what happened. [She] stated I have nothing to say.” Nevertheless, on September 26, 2013, Principal Gibbs issued to Respondent a Professional Responsibilities memorandum regarding the alleged incident, requiring her to “[e]nsure the safety and well-being of students at all times”; “[m]aintain close supervision of students at all times”; “[r]eport immediately to administration any accidents or incidents involving student welfare”; and “[n]otify parents in regards to any accident or incidents occurring with students.” On September 25, 2013, Principal Gibbs met with Respondent in his office to discuss her classroom supervision. The meeting was held behind Principal Gibbs’s closed door. During the meeting, Respondent felt as if Principal Gibbs was speaking to her in an arrogant manner. Respondent became upset at Principal Gibbs, spoke to him in a loud manner, and, at one point, hit his desk with one of her hands and stated: “No, I’m not going to allow you to speak to me like that, because I’m 61 years old and I’m old enough to be your mother.” At no time during the meeting did Respondent threaten or intimidate Principal Gibbs in any way. Approximately one week later, Principal Gibbs and Respondent met in his office to discuss some student discipline referrals. During this meeting, Respondent became upset at Principal Gibbs and spoke to him in a loud manner. At no time during this meeting did Respondent threaten or intimidate Principal Gibbs in any way.8/ In sum, the evidence at hearing failed to show that Respondent’s loud voice and conduct in her meetings and conversations with Principal Gibbs constitute misconduct in office, gross insubordination, incompetency due to inefficiency, or a violation of applicable School Board policies. Although Respondent may have used a loud voice during the meetings and conversations, and staff members may have overheard Respondent’s loud voice, given the context in which these meetings and conversations occurred (they were meetings and conversations between a principal and teacher--not a classroom situation involving students), the School Board failed to establish that Respondent engaged in conduct which rose to the level of misconduct in office, gross insubordination, incompetency due to inefficiency, or a violation of applicable School Board policies. As to the alleged incident on March 14, 2013, the evidence at hearing failed to show that Respondent engaged in conduct which rose to the level of misconduct in office, gross insubordination, incompetency due to inefficiency, or a violation of applicable School Board policies. As to each of the alleged incidents in September 2013, involving allegations of students getting injured while under Respondent’s supervision, the evidence at hearing failed to show that students were injured while under Respondent’s supervision. Accordingly, the evidence at hearing failed to show that Respondent is guilty of misconduct in office, gross insubordination, incompetency due to inefficiency, or that she violated applicable School Board policies with regard to these alleged incidents. The evidence at hearing failed to show that Respondent’s failure to have any lesson plans, grades for students, or a “print-rich” classroom and outside bulletin board, constitutes misconduct in office, gross insubordination, incompetency due to inefficiency, or a violation of applicable School Board policies. The evidence at hearing failed to show that Respondent did not have lesson plans available for a substitute teacher on October 8 and 12, 2012. Thus, the evidence at hearing failed to show that Respondent is guilty of misconduct in office, gross insubordination, incompetency due to inefficiency, or that she violated applicable School Board policies with regard to these allegations. The evidence at hearing failed to show that Respondent “significantly arrived late” to important faculty meetings. The evidence presented at hearing merely showed that Respondent was late to a pre-planning faculty meeting on her first day at Henry Reeves on August 18, 2011, because she went to the wrong school. The significance of this faculty meeting was not established at the hearing. During the next school year, she was late to two other meetings in November 2012. It is unclear from the record that these two other meetings in November 2012, were, in fact, faculty meetings. Be that as it may, the fact that Respondent was late to three meetings from August 2011 to September 2013-- one of which was on the first day of school when she went to the wrong school--is insufficient to demonstrate that Respondent engaged in conduct which constitutes misconduct in office, gross insubordination, incompetence due to inefficiency, or a violation of applicable School Board policies. The evidence at hearing failed to show that Respondent was tardy and absent from work to the extent alleged in the Amended Notice of Specific Charges. Even if she was tardy and absent as alleged, however, the tardiness and absences do not constitute misconduct in office, gross insubordination, incompetence due to inefficiency, or a violation of applicable School Board policies. The evidence at hearing failed to show that Respondent engaged in any conduct alleged in the Amended Notice of Specific Charges which constitutes misconduct in office, gross insubordination, incompetency due to inefficiency, or a violation of School Board policies.
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 rescinding the 30-day suspension with back pay. DONE AND ENTERED this 26th day of August, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 26th day of August, 2014.
The Issue The Respondent seeks to cancel and/or rescind the continuing contract of the Petitioner based on the fact that she refused to report to work as requested. The issue to be resolved is whether the Respondent may refuse to grant an instructor who is the holder of a continuing contract a consecutive fifth year of personal leave and secondly whether or not the Respondent may properly dismiss its instructional employee who has requested and has been denied such leave and thereafter refuses to report to work as directed.
Findings Of Fact The testimony of Wilbur S. Franklin, Principal, and Armando Henriquez, Superintendent, District School Board of Monroe County and other documentary evidence reveals that the Petitioner was granted personal leave for four consecutive school years beginning with the 1971-72 school year. The Petitioner also requested personal leave for a fifth year (school year 1975-76) and the principal of the school to which she was last assigned and who was responsible for approving such requests denied it. Messr. Franklin, Principal, testified that his reason for denying the Petitioner a fifth year of personal leave was based on the fact that he needed to make permanent staffing recommendations and the situation in which the Petitioner presented posed a problem in that from year to year he did not know whether or not she would return to school or whether she would again request an additional year of personal leave. He testified that in making his staff recommendations, he sought the best instructors in order to have a sound overall educational program and in order to fulfill that goal, he sought to utilize the services of the most qualified instructors available. The Petitioner testified that during the four years of annual leave which she was granted, she obtained a masters degree in guidance and counseling and that she thought that her training and educational background was more attuned to that type position and that was the position in which she was seeking with the Respondent. She testified that she was certified and was holder of a continuing contract as a classroom teacher and that her employment with the Respondent was in the areas of elementary education, i.e., fourth grade and below. She further testified that she made application for part-time and full- time positions in the areas of guidance and counseling and while vacancies have occurred during those times in which she had an application pending, she was bypassed and she voiced her opinion that based on her education and tenure, she has been discriminated against. In this regard the undersigned asked her to point to specific instances which would substantiate her position and she was unable to do so during the course of the hearing. She testified that vacancies occurred and were filled but she did not know what the educational background of the person(s) who was selected to fill these positions. The Petitioner has been an instructor within the county for more than fifteen years and she, as earlier stated, is the holder of a continuing contract. During March, 1975, she requested by letter a fifth year of annual leave and the Respondent, through its Principal, Messr. Franklin, advised that a fifth year of annual leave would not be granted to her. The Petitioner appealed this denial up to the level of superintendent and he sustained the Principal's recommendation. Messrs. Arthur, Assistant Superintendent Monroe County School District, Armando Henriquez and Wilbur Franklin, Principal, all testified that when the school year 1975-76 began, the Petitioner did not report for duty and has not reported during the current school year. They all testified that while they had no direct conversations with the Petitioner, they have corresponded through written communiques. The Petitioner was given 10 days following the conclusion of the hearing to submit any supporting memoranda which would tend to substantiate her claim that her denial of a position in guidance and counseling was done for ulterior and other unlawful reasons. Respondent's counsel asked the undersigned to take official notice of Section 231.43,44, Florida Statutes, regarding absence without leave and school board rules and regulations 1.4.13 dealing with absence without leave and 1.4.14, personal leave without pay as to the discretion vested in the Respondent with regard to setting school policies. The Petitioner in accordance with her request for ten days leave to file a written statement and/or other documentary evidence supportive of her position, has submitted such and it has been duly considered. Section 231.43, F.S., states, in pertinent part, that the school board shall adopt regulations prescribing conditions under which the instructional staff shall be granted personal leave which when granted shall be approved by the superintendent. In keeping with this dictate, the Respondent promulgated certain guides for the granting of leave (See Board's Exhibit No. 9 received in evidence and made a part hereof). Section 231.44, F.S., dealing with "Absence without leave" states pertinently that any instructor who is willfully absent from duty without leave shall forfeit compensation...and his contract shall be subject to cancellation...(Emphasis added). It is true that the Petitioner has requested positions in areas which she was certified and the evidence indicates that, at least on one occasion, a vacancy existed and was filled by another applicant. However absent any evidence that the successful applicant was selected based on an arbitrary or capricious method or that the Petitioner was not selected due to some discriminatory or other unlawful means, it must be inferred that the Respondent employment selection process was fair. Nor was any evidence submitted which tends to show that the Respondent's attempt to dismiss the Petitioner was initiated for any reason other than the stated reason advanced by Messr. Franklin to the effect that he was desirous of establishing a stable and efficient complement of instructors. It is only logical that an administrator would seek to achieve this. Based on the above and the entire record, it is recommended that the Respondent be permitted to terminate the employment of the Petitioner, Betty Suarez Patterson for failing to report for work and continuing to do so at her assigned position at Truman Elementary School, Key West, Florida. DONE and ORDERED this 28th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1976. COPIES FURNISHED: Hilary U. Alberry, Esquire 310 Fleming Street Post Office Drawer 1430 Key West, Florida 33040 Betty Suarez Patterson 3712 Donald Avenue Key West, Florida 33040
The Issue Whether Respondent should be dismissed from his employment by the Pinellas County School Board as a painter in the School Board’s Maintenance Department for any or all of the following: excessive absenteeism, failure to report absences according to established procedures, failure to provide required medical documentation for absences, tardiness, insubordination, driving under the influence of alcohol and criminal conviction of driving while intoxicated?
Findings Of Fact Petitioner, the School Board of Pinellas County, is the authority that operates, controls and supervises all free public schools in the Pinellas County School District. Dwayne Goodrow has been employed as a painter in the Maintenance Department for the Pinellas County School Board since April 18, 1989. His work has always been satisfactory and sometimes better than satisfactory. Over the years of his employment, however, he has had chronic and serious attendance problems. Absenteeism, Attendance and Other Performance Factors On August 2, 1990, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." The memorandum stated that since the beginning of the school year, Mr. Goodrow had been absent an excessive number of times, including 17 hours of leave without pay. It informed Mr. Goodrow that, "[t]his absenteeism is unacceptable and you must make an immediate and permanent correction of this behavior." (Petitioner's Ex. No. 1) It further advised him that the memorandum would be placed in his file as a record that he had been counseled about the matter and that he fully understood that any reoccurrence of excessive absenteeism would result in a letter of reprimand. The memorandum warns: In the event you receive a letter of reprimand and the excessive absenteeism continues, you will become subject to more severe disciplinary action, which could include suspension or dismissal. Id. The memorandum is signed first by Mr. Goodrow and then by school board personnel: Mr. Goodrow's foreman and general foreman as well as the Superintendent of the School District. On October 5, 1990, Mr. Goodrow received a letter of reprimand for excessive absenteeism. The letter informs Mr. Goodrow of his General Foreman's belief that he has not realized the seriousness of his problem with absenteeism because in the interim since the August 2 memorandum he had been absent 29 and ½ additional hours. The letter warns, "if your absenteeism continues, it will be cause to recommend you for suspension or dismissal." Petitioner's Ex. No.2. It concludes, "Your signature below will acknowledge that you have received and understand this letter of reprimand." Id. Just as the August 2, 1990 memorandum, the letter is signed by Mr. Goodrow and school board personnel. On a Supporting Services Personnel Performance Appraisal signed by Mr. Goodrow January 18, 1991, he received a rating of unsatisfactory in the area of attendance and "needs improvement" in the area of punctuality. The remarks section of the appraisal states with regard to attendance, "[h]as received letters warning him of this, must be corrected." Petitioner's Ex. No. 17. The appraisal also states, "Dwayne has good painting abilities and knowledge, can be trusted to complete any job given him." Id. On June 10, 1991, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." With the exception of stating that he had taken 15 hours of leave without pay, the memorandum is identical to the August 2, 1990 memorandum. On a supporting Services Personnel Performance Appraisal dated February 14, 1992, Mr. Goodrow was again rated unsatisfactory under the performance factor of attendance. The remarks section reflects that he received counseling on December 19, 1991, for frequent tardiness but also that "[j]ob knowledge is adequate," "[c]ompletes assigned work on time," "[h]as the ability to be a self-starter," and "[c]an be a good team worker." Petitioner's Ex. No. 16. On September 15, 1994, Mr. Goodrow received an Attendance Deficiency Notification Letter. The letter states "[y]ou are required to bring in doctor's documentation of your illness on all further sick leave absence requests." Petitioner's Ex. No. 4. Although there is a place on the letter for Mr. Goodrow's signature and a notation that signature by the employee does not imply agreement with statements in the letter, the letter reflects that Mr. Goodrow refused to sign it. On October 3, 1994, Mr. Goodrow received a Record of Counseling. It noted deficiencies in his performance in that, INSUBORDINATION - You were told to furnish doctors excuses for any sick leave taken as per letter dated 9/15/94. On 9/26/94 you used 2 hours sick leave and failed to provide Doctor's excuse upon request of your Foreman. Petitioner's Ex. No. 5. To bring his performance to the satisfactory level, Mr. Goodrow was advised he would have to supply a doctor's documentation of illness whenever he took sick leave in the future. On February 17, 1995, Mr. Goodrow was rated as "Needing Improvement," in the area of attendance on his performance appraisal by his supervisor. The remarks section of the appraisal reflects that he was counseled for not following leave policy but also that "Dwayne has shown a more positive attitude recently, he has the potential to progress." Petitioner's Ex. No. 15. Furthermore, Mr. Goodrow was rated "better than satisfactory, in the area of "job knowledge." Consistent with this rating, in the remarks section, the following appears, "Dwayne exhibits his job knowledge by identifying problems and solving them . . . ." Id. The potential for progress noted in February did not last long. On March 24, 1995, Mr. Goodrow received a letter of reprimand for insubordination for failing to provide a doctor's excuse for sick leave absences contrary to previous instructions. The letter warned that failure to provide doctor's excuses in the future to justify sick leave will result in "further disciplinary action up to and including termination of employment." Petitioner's Ex. No. 6. Over the next 6 months, Mr. Goodrow began again to show progress. By early September, 1995, his attendance had "improved considerably," Petitioner's Ex. No. 7, and the requirement for a doctor's excuse for every sick leave absence was lifted. The procedure for reporting absences in the School Board's Maintenance Department is for employees to call in at least one-half hour prior to their normal starting time. There is an answering machine upon which a message can be recorded when there is no person available to take the call. Shortly after the lifting of the requirement for a doctor's excuse to justify sick leave, Mr. Goodrow, on Wednesday, September 13, 1995, was absent from work. He did not call in consistent with the procedure for reporting absences. He was absent again two days later. In addition to the failure to call in on September 13, 1995, Mr. Goodrow was absent without calling in on three other days in the fall of 1995: October 18 and 26, and November 9. Each time he failed to call in, Mr. Goodrow was verbally warned by Trades Foreman Al Myers of the requirement for calling in and was given a review of proper procedure. On December 14, 1995, Mr. Goodrow received a letter of reprimand for failure to follow proper procedure with regard to the four absences in the fall of 1995. The letter was the result of an agreement with Mr. Goodrow that the letter was the appropriate response by the maintenance department for the absences and failure to follow procedure. A stipulation was added, however, to the agreement: "[A]nother attendance incident within one year will result in recommendation for 'Time off without pay' or possible 'Dismissal'.". Petitioner's Ex. No. 7. The letter concludes, "Also, as of this date you are again required to provide medical proof of your [inability to attend work] . . . and you are required to notify your supervisor prior to the start of work shift you are going to be absent." Id. The letter is signed by Mr. Goodrow. On February 26, 1996, Mr. Goodrow and the School Board entered a Stipulation Agreement. The agreement reviewed Mr. Goodrow's performance appraisals for unsatisfactory attendance, and insubordination for taking sick leave without doctor's excuses. Furthermore, it stated that Mr. Goodrow: On December 15, 1995, . . . left work early without proper notification or required medical documentation. On January 3, 1996, Mr. Goodrow failed to report his absence according to established procedures, and on January 17, 1996, he failed to report his absence according to established procedures and requested 3.5 hours of sick leave without providing required medical documentation. Petitioner's Ex. No. 8. As an expression of regret and to affirm his commitment to notify his supervisor in the future regarding absences, Mr. Goodrow agreed to a three day suspension without pay effective March 19, 20 and 21, 1996. The stipulation also states that Mr. Goodrow, once again, understands that further problems could result in more serious disciplinary action, including dismissal. On April 16, 1996, Mr. Goodrow received a performance review finding him to have continued to demonstrate unsatisfactory attendance and judgment in that on March 6, 1996, he was late 3 hours with no explanation, on March 28, 1996, he was late one-half hour with no explanation, on April 3, 1996 he took eight hours sick leave without doctor's justification, on April 9, 1996, he was arrested and charged with DUI, and on April 11, 1996, he took eight hours sick leave without a doctor's justification. Driving While Intoxicated The job description for a painter employed with the Pinellas County School Board includes the requirement that the employee possess a valid State of Florida Class B commercial driver's license ("CDL"), to include "air brake" qualifications, and any other license as may be required by law. On March 30, 1996, while driving a motor vehicle off- duty, Mr. Goodrow was stopped by a law enforcement officer for failing to maintain his vehicle in a single lane of traffic. Deputy Howard Skaggs, a member of the Sheriff Department's DUI unit, was summoned to the scene to conduct filed sobriety tests to determine whether Mr. Goodrow was driving while intoxicated or under the influence of alcohol. Deputy Skaggs smelled a strong odor of alcohol on the breath of Mr. Goodrow, who, in turn, admitted that he had consumed at least six beers at two different taverns. While at the roadside, three field sobriety tests were performed by Deputy Skaggs, all of which Mr. Goodrow failed. Deputy Skaggs concluded that Mr. Goodrow was without doubt impaired. At the jail, Mr. Goodrow was asked to submit to a breathalyzer. He refused with the statement that he had had too much to drink and the test would only incriminate him. Mr. Goodrow was arrested. On September 17, 1996, Mr. Goodrow entered a plea of nolo contendere to the criminal offense of driving under the influence of alcohol. He was adjudicated guilty, placed on probation for 12 months, required to enroll in DUI school, fined $1000.00, and his driver's license was revoked for one year. Without a driver's license and a CDL, Mr. Goodrow no longer meets the job description of a painter in the School Board's Maintenance Department. Notification of Dismissal On June 19, 1996, Mr. Goodrow was notified that Superintendent Hinesley would recommend to the School Board that he be dismissed due to excessive absenteeism and insubordination. The DUI conviction, not having yet occurred, was not, of course, a factor in the superintendent's decision. Comparison with Other Employees Brett Paul, a painter in the Maintenance Department like Mr. Goodrow, also had attendance problems very similar to Mr. Goodrow's. He was suspended for three days without pay on the very same dates as Mr. Goodrow. Since the March suspension, however, unlike Mr. Goodrow, Mr. Paul's attendance has improved with the exception on an isolated instance in which his absence was due to a "major life event," the purchase of a house. He has not been convicted of DUI. Tom Appold was arrested for DUI during a time that he was employed as a painter in the School Board's Maintenance Department. After his conviction for DUI, he requested that he be allowed to transfer to another department, presumably because he could no longer meet the job description requirement that he hold a CDL. The request was honored and he is now employed by the School Board in another section of the Maintenance Department for which a CDL is not required. Mr. Appold, however, unlike Mr. Goodrow, has never been reprimanded or suspended for attendance problems. His attendance has always been found by the School Board's Maintenance Department to be within acceptable limits. Alcoholism and a Change of Heart Mr. Goodrow is an alcoholic. His excessive absenteeism, refusal to follow proper procedures with regard to work absences, insubordination, driving while intoxicated, arrest and conviction for DUI, and virtually every other work problem he had experienced over his seven years of employment with the School Board's maintenance department stems from alcoholism. For example, many of the days he missed at work were days following dart tournaments the night before at local establishments that served alcohol. Until the aftermath of his DUI conviction, Mr. Goodrow was ashamed and embarrassed to admit he suffers alcoholism. Today, with the assistance of professional counseling required as condition of probation for the crime of which he has been convicted, Mr. Goodrow is able to admit and freely did so at hearing that he is an alcoholic. The ability to make this admission is a major step forward for Mr. Goodrow. It is unfortunate that Mr. Goodrow's ability to face up to his problem has come so late. Had he admitted the condition when he was encountering problems with attendance at work, there were a number of options available to him and the School Board short of poor performance appraisals, letters of reprimand and suspension. As Dr. Martha O'Howell , Administrator of the School Board's Office of Professional Standards testified, We would have talked to him about the extent of that drinking problem. We would have referred him to . . . Cigna, the health provider. At that time, there was no formalized EAP [Employee Assistance Program] in place that the employee could go directly to, but there was . . . substance abuse counselling (sic) through Cigna that was available. We would have referred him or put him in contact with our risk management department. We would have encouraged him to take a leave of absence while he was seeking treatment, (Tr. 78). depending on the nature of the treatment, the severity, the length and so forth. We would have worked with him to provide a medical leave of absence if that had become necessary. If Mr. Goodrow's suspension were lifted and his employment was reinstated, the School Board's Employee Assistance Program would be available now to help him cope with his alcoholism. School Board personnel are not willing to make such a recommendation, however, in light of all that has occurred in Mr. Goodrow's case. A supervisor in the Maintenance Department expressed concern over the precedent that would be set if Mr. Goodrow were allowed to return to work, particularly in the minds of employees who might think that conduct like Mr. Goodrow's resulted in no meaningful consequences on the part of the School Board. Contrary to the concern of the Maintenance Department, the action taken to date, a suspension without pay that has been in effect now for more than eight months, has resulted in very definite consequences to Mr. Goodrow. In the main, he has been unemployed. He has made reasonable efforts to gain employment. But the loss of his driver's license has held him back. At the time of hearing, what little money he had been able to earn from the time of his suspension was certainly far below what he would have earned had he not been suspended from the employment he had held for more than seven years.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the suspension of Dwayne Goodrow be sustained by the Pinellas County School Board but that he be reinstated without back pay if adequate conditions for his return to work can be agreed-to by the parties. If conditions of reinstatement cannot be agreed-to, Mr. Goodrow should be dismissed. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1997. COPIES FURNISHED: Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 4th Street Southwest Largo, Florida 33770-2942 Robert G. Walker, Jr., Esquire Pinellas County School Board Attorney 1421 Court Street, Suite F Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board Attorney 301 4th Street Southwest Largo, Florida 34649-2942 Elihu H. Berman, Esquire Berman & Hobgood, P.A. 1525 South Belcher Road Clearwater, Florida 34624
