Findings Of Fact The Respondent, Russell W. Doran, was certified as a law enforcement officer by the Petitioner, the Criminal Justice Standards and Training Commission, on November 19, 1982. He holds Certificate Number 02-32144. He was employed as a police officer by the City of Clearwater Police Department from July 12, 1982, through December 6, 1990. On the evening of November 10, 1990, at approximately 8:06 p.m., while on duty patrolling by himself in a squad car in the Clearwater Beach area, the Respondent radioed the police dispatcher to advise that he was at 1198 Mandalay Point, which is in an exclusive residential area at the north end of the beach called Carlouel, and that he had seen a black male slipping from the the front of the house there towards the side and back of the house. The Respondent advised that he was going after the suspect and asked the dispatcher to call for backup. After his initial transmission, the Respondent did not call back, and the radio dispatcher was unable to raise the Respondent on the police radio. Several officers in the area who overheard the dispatcher's transmissions, in addition to those specifically asked to respond, headed for the Respondent's location. The first officers to arrive saw the Respondent's empty squad car parked in front of the driveway to 1198 Mandalay and began looking for the Respondent. While they were looking, they heard an emergency radio transmission coming from the Respondent's squad car. When they got back to the squad car, they saw the Respondent lying on the front seat of the car with his head towards the steering wheel and his legs out the passenger-side door. He was apparently unconscious. Apparently, he had returned to the car, opened the passenger side of the car, leaned into the car, put the keys in the ignition and pushed the emergency radio signal. The first officers at the scene pulled the Respondent out of the car and laid him on his back in the street. His shirt was soaked with a liquid that smelled like, and was, gasoline. He had a small cut and a small amount of blood on the back of his head. The officers called the dispatcher to report what had happened and to ask for emergency medical technicians and for more help to the seal off the area and search for the apparent assailant while the Respondent was being attended. Immediately, a Morton Plant Hospital ambulance was dispatched to the scene, and as many units from the west side of Clearwater as possible were sent at high speed to the Carlouel area. When they arrived, they sealed off the area from the south, where a wall separated Carlouel from the rest of Clearwater Beach. The only other ways to escape from the scene would have been by boat-- either to the west to the Gulf of Mexico, to the east to the Intracoastal Waterway, or to the north towards Caladesi Island--or by walking or swimming across the shallow water to Caladesi Island, from which one would have to leave by boat or swim approximately a half mile across the Intracoastal Waterway to Dunedin. To apprehend the apparent suspect, the Clearwater Police sent two K-9 units to the scene to trail the freshest scents. The also had them search the house at 1198 Mandalay and all the nearby houses in Carlouel. Other officers scoured the area. They searched the immediate area and searched the beaches to the north and west of 1198 Mandalay, both by foot and by all-terrain vehicle. They went door to door throughout Carlouel to ask residents for information. They searched every dock and every boat in Carlouel. In addition, the police helicopter was dispatched to the scene and participated in the search. Meanwhile, a road block was set up at the entrance to Carlouel and all vehicles going north or south were stopped, checked and questioned. Clearwater Police also enlisted the help of the United States Coast Guard to stop and search boats in the Intracoastal Waterway, and the rangers on Caladesi Island were alerted. Crime scene investigators also were dispatched to the scene. As the searches were put in motion, the Respondent opened his eyes and looked at the officer helping him. Although he had worked with all of the officers at the scene and knew them well, he acted as if he did not know any of them, acted scared of them, and tried to get away from them. The officers were required to physically restrain them. The Respondent acted incoherent and confused. He did not communicate with any of the officers and continued to act as if he did not know who any of them were. The officers assumed that he had incurred a concussion and had amnesia. Out of concern for the Respondent's apparent medical condition, the officers were insisting that the Bayflight emergency medical helicopter also be dispatched to the scene to transport the Respondent to Bayfront Hospital to be seen as soon as possible at its neurological unit for head trauma. The emergency medical technicians vetoed this request. They saw no medical reason to helicopter the Respondent to Bayfront. There was little of the bleeding and swelling that would be consistent with a concussion or any blow to the head hard enough to cause a concussion or amnesia. They also observed that the Respondent's combativeness and other behaviors were not consistent with "retrograde amnesia," which frequently is seen with head trauma patients. With "retrograde amnesia," the patient is more likely to simply repeat questions over and over. The ambulance transported the Respondent to the Morton Plant emergency room, where he was admitted to the hospital. Meanwhile, the search for the Respondent's supposed assailant continued until approximately 11:30 p.m., but no one was apprehended, and there were no suspects. There were no footprints leading away from 1198 Mandalay. The dogs picked up no trails other than the Respondent and the first officer to arrive at the scene. There were no witnesses to anything suspicious. At the crime scene, some bushes had been trampled in the front of the house where the dogs indicated the Respondent had been. There also was a broken beverage bottle on the side of the house, where some cloth soaked with gasoline also was found, and where there was a strong odor of gasoline. The bottom and neck of the bottle were intact; the middle of the bottle had been shattered. The officers also found two beverage bottles under a palm tree on the front law of the house at 1198 Mandalay. The beverage contents had been decanted, and the bottles were filled with gasoline and wrapped together in a black T-shirt. While the investigation continued, the Respondent remained in the hospital. At first, he seemed to have total amnesia and not recognize anyone. But while he still acted as if he did not know some people, and acted towards them as if he did not even know who he was, he acted towards a select two as if he knew exactly who they were and who he was. Specifically, while still acting towards others as if he had amnesia, the Respondent had normal conversation with Christine Collin, a fellow police officer who was his former girlfriend, and with Alan Whitacre, another fellow police officer who was Collin's current boyfriend. The Respondent had known Collin for approximately three years. She was a police aide when he first met her. Later, she got her certificate and was sworn as an officer in the Clearwater Police Department. They became friends, and the relationship became romantic and intimate. The two discussed at length the problems in the Respondent's marriage and the Respondent's ambivalence about staying married. The Respondent indicated to Collin that he was still married only for the sake of his young son. In September, 1990, Collin decided to end the affair with the Respondent and to begin dating others. In approximately October, 1990, she made it known to the Respondent that she was seeing Whitacre. The Respondent acted as if he understood Collin's decision, in view of his marriage, and as if he was supportive of Collin. But on November 10, 1990, the Respondent called Collin and asked her to lunch. He said that his wife had gone to a wedding even though he had not been invited and it was his birthday. He indicated that this upset him and, to him, underscored the weakness of his marriage. He then told Collin that he was in love with her. He still was ambivalent about his marriage but professed that he was ready to end it. Collin was surprised and did not react as the Respondent had hoped. Eventually, she told the Respondent that she did not want him to be in love with her and that she did not want to resume their affair. When he heard Collin's response, the Respondent became even more depressed about the entire situation in which he found himself. The Respondent felt trapped in his marriage. His wife's father is a former major in the Clearwater Police Department. During the course of the rest of the day, in bits and pieces, the Respondent hatched an ill-conceived scheme to extricate himself from the situation. He decided to fake an arson attempt and fake being assaulted and hit over the head, hard enough to be knocked out or injured, with a bottle containing gasoline supposedly being used by the arsonist. He hoped that this would be enough to get himself out of the situation at least for a few weeks. It is possible that he also planned to fake amnesia, thinking that somehow this would enable him to get out of his marriage and pursue his love interest with Collin. After dinner, between approximately 7:30 and 8:00 p.m., the officer who was riding with the Respondent that day returned to the local police substation. The Respondent used this opportunity to stop and get three empty beverage bottles out of a trash dumpster. He then went to a service station and filled the bottles with gasoline. He stopped at a store and bought a T-shirt. He used the T-shirt to wrap together two of the bottles of gasoline so that he could carry them in one hand. He then drove north to a secluded area of the beach and 1198 Mandalay, a house the Respondent knew from previous patrols probably was vacant. The Respondent parked his squad car and got the bottles and T-shirt out of the trunk. He placed the two bottles he had wrapped together at the base of a palm tree on the front lawn. He then went up to the side of the house, which appeared to be unoccupied. At this point, he began to have second thoughts about what he was about to do, thinking that it was "ridiculous." He gave some thought to just "eating a bullet" instead. But, following his plan, he telephoned the dispatcher and falsely reported sighting a black male in front of the house. See Finding 2. He then attempted to crack himself in the head. To the Respondent's great dismay, after calling the dispatcher, he found that it was not as easy as he had hoped to knock himself out or injure himself. It also hurt more than he planned. Instead, he decided to hold the bottle over his head in one hand and break it with his police flashlight with the other hand. The glass shattered, spilling gasoline over the Respondent's neck and upper back. The Respondent took a shard of glass and cut himself in the back of the head to make it look like the bottle shattered when it struck him in the head. He then walked back to his squad car. Back at his squad car, the Respondent saw that another police vehicle already had arrived at the scene. He decided to push the emergency call button in the car and fake unconsciousness. If he had not already decided to do so, he also decided to fake amnesia. Once he initiated his scheme, the Respondent found that, rather than getting himself out of a stressful dilemma, he had gotten himself into another one that was just as difficult to get out of. Between November 10 and December 5, 1990, the Respondent made various false statements to various people, including investigating law enforcement officers. At times during this time period, especially at first, the Respondent professed that he had total amnesia. Later, he said he had partial memory. Some of the false statements he made to law enforcement officers investigating the matter were under oath; some were not. Some of the statements he made were inconsistent, as his story changed to meet contradictory evidence that had been obtained and to explain prior inconsistent statements with which he was confronted. Eventually, on December 6, 1990, as part of an agreement under which the Clearwater Police Department would allow the Respondent to resign and not have him prosecuted, the Respondent made a tape-recorded and written statement, under oath, in which he essentially admitted to what he had done. In this case, the Respondent is taking the position essentially that neither his admissions to nor his denials of false statements to law enforcement authorities were true. He claims that, in truth, he never has had, and still does not have, any actual present memory of what happened on or about November 10, 1990. He claims that, initially, he had temporary total amnesia. He claims that the false statements he initially made about what happened on that day were the product of his efforts to piece together, and make sense of, bits and pieces of information that were "leaked" to him. Essentially, he states that he now believes he "created" a memory for the police to help them solve the crime, and to help him make sense out of what everyone was telling him. Essentially, he says the same process was at work when he later admitted to his false statements. He claims that, when investigators disclosed to him their difficulties with the inconsistencies and illogic of some of the Respondent's statements, they essentially convinced him that his earlier statements must have been wrong and that the Respondent "must have done it." The Respondent claims that, in actuality, he has no present recollection of what happened on November 10, 1990. As reflected in these Findings of Fact, the Respondent's assertions are rejected as being the next in a series of fabrications and falsehoods invented by the Respondent in an attempt to extricate himself from the circumstances he created for himself. The Respondent attempted to base his latest fabrication on the expert testimony of a psychiatrist. But, at bottom, the psychiatrist's opinion is based on the assumption that the Respondent's selective amnesia results from an actual traumatic incident on the evening of November 10, 1990, in which the Respondent actually was assaulted by an arsonist whom the Respondent caught in the act. It has been found that no such assault ever occurred. If the Respondent was under stress from trauma resulting from the events of November 10, 1990, it was from the stress of recognizing the foolishness of what he had done, and from the personal and career repercussions that would result if was caught in his lie. The Respondent offered in evidence the videotape of an interview given by the Respondent to his expert witness while the Respondent was under the influence of Brevitol, a drug which is known to some as "truth serum." It is found that the Respondent's evidence did not establish that the results of Brevitol interviews are the kind of evidence commonly relied upon by reasonably prudent persons in the conduct of their affairs. At best, the expert established that Brevitol and similar drug-assisted interviews are useful in obtaining certain information from persons who actually have some kind of trauma-induced amnesia. For example, it is used with some success by health care professionals trying to diagnose and treat patients who present with amnesia and are unable to give their identity or the identity of their next of kin, friends or neighbors, or any other necessary personal information. The evidence did not establish that these interviews are commonly used to ascertain whether someone claiming amnesia is telling the truth. Nor was it established to the satisfaction of this Hearing Officer that these kinds of interviews separate fact from fantasy. (It also is possible that, if not conducted properly, the interview can result in suspect, sleepy affirmations to leading questions, but this defect probably could be detected from a review of the interview itself.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking the certification of the Respondent, Russell W. Doran. RECOMMENDED this 27th day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1993. COPIES FURNISHED: D. David Sessions, Esquire Assistant General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Bruce G. Howie, Esquire Battaglia, Ross, Hastings & Dicus 980 Tyrone Boulevard Post Office Box 41100 St. Petersburg, Florida 33743 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether just cause exists for the termination of the Respondent's employment by the Petitioner.
Findings Of Fact At all times material to this case, Gary Ellerson was employed as a Police Aide II by the City of Clearwater Police Department (Department). The position held by Mr. Ellerson is classified as a permanent part- time and is subject to the City of Clearwater Civil Service Rules. At some time during his employment with the Department, Mr. Ellerson has also worked for the "NuCops" program, a part of the federally-funded "Americorps" project. One of Mr. Ellerson's NuCops assignments was to provide assistance to a regularly scheduled Boy Scout meeting. Although on one occasion the Department funded Mr. Ellerson's attendance at a NuCops training program, the NuCops program is not funded or operated by the Department. At some point immediately prior to April 1, 1995, Mr. Ellerson sought permission from Lt. Frank Daly, a superior, to work as a Police Aide with the Boy Scouts on April 1, 1995. Lt. Daly approved the request, contingent on the further approval of Police Aide Lead Worker Chris Corino and Police Sergeant Heinz. Based on Lt. Daly's approval, Mr. Ellerson obtained the approval of Mr. Corino and Mr. Heinz. Mr. Ellerson did not advise Lt. Daly that the April 1 Boy Scout meeting was part of his regularly assigned NuCops duties. Lt. Daly testified that had Mr. Ellerson identified the Boy Scout meeting as part of his NuCops assignment, the request to include it on Mr. Ellerson's Department time sheet would not have been approved. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 1, 1995, Mr. Ellerson reported working the same hours to both employers. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 4, 1995, Mr. Ellerson reported working the same hours to both employers. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 10, 1995, Mr. Ellerson reported working the same hours to both employers. There is no evidence that Mr. Ellerson sought or received the Department's permission to include the April 4 and 10 Boy Scout meetings on his Department time sheets. There is no evidence that Mr. Ellerson worked for the Department during the hours reported on the time sheets for the dates cited herein. On the three relevant dates, Mr. Ellerson attended a meeting of Boy Scouts, a duty of his employment with the NuCops program. Department time sheets contain a signature line where the employee attests to the truth and correctness of the hours reported. Mr. Ellerson signed the statement on the relevant time sheets. The Department conducted an investigation of the erroneous time sheets. During the investigation, Mr. Ellerson asserted that he listed "training" hours and "studying" hours separately. Review of the time sheets fails to support the assertion. There is no evidence that Mr. Ellerson had differentiated such hours on prior time sheets. The Petitioner asserts that after the April 1 incident, Mr. Ellerson was told by Police Aide Lead Worker Chris Corino not to include the NuCops/Boy Scout time on his Department time sheets and that Mr. Ellerson failed to follow the directive. Mr. Corino did not testify at the hearing. Mr. Ellerson denies he was told by Mr. Corino that his time sheet was improper. Because there is no non-hearsay evidence which could establish that Mr. Ellerson was specifically told not to include the Boy Scout program on his Department time sheets, the assertion is rejected. Mr. Ellerson has been previously disciplined by the Department for failure to obey orders (resulting in a written reprimand) and for tardiness and absence from duties (resulting in a one day suspension.) The evidence establishes that based on the facts of this case, the appropriate disciplinary action is termination of employment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the City of Clearwater Civil Service Review Board enter a Final Order terminating the employment of Gary Ellerson. DONE and ENTERED this 8th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4250 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent did not file a proposed recommended order. COPIES FURNISHED: H. Michael Laursen Human Resource Director City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Leslie K. Dougall-Sides, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Mr. Johnny Long, Representative c/o Mr. Gary Ellerson (address of record)
Findings Of Fact Petitioner, Frank A. Caluwe, Jr., was employed on a noncontractual basis by Respondent, South Florida Water Management District, during the period from April 8, 1974 through August 4, 1982. From August, 1981 until his termination, Caluwe held the position of water management engineer III. At all times relevant hereto, Richard A. Rogers, director of the Resource Control Department, was overall supervisor or department head. Charles Alan Hall served as his direct, day-to-day supervisor. Petitioner transferred into the Resource Control Department in 1977. He was eventually promoted to a supervising professional engineer I class in 1979 by Rogers and Hall. Caluwe's job evaluations received in evidence as Petitioner's Exhibit 17 reflected outstanding and excellent ratings and included such glowing descriptions of his work performance as "excellent" and "well organized", and as having "a very good handle on all phases of the work". He received an excellent rating from Rogers and Hall as late as November, 1981. Rogers first began experiencing what he described as "difficulties" with Caluwe around 1980 when Caluwe went to lunch with several of his subordinates and did not return to work the rest of the afternoon. He did not take leave for his absence. Although Rogers claimed the employees were on a "drinking spree," this was not confirmed. Caluwe did not receive any disciplinary action for this "incident", although several months later Hall expressed displeasure with his absence. There was no evidence that any of the other employees in the group received any type of oral or written disciplinary action for their absences. Several other "problems" occurred during his employment tenure including unsuccessful attempts in 1980 to utilize law books at the agency's law library for personal use, admonishments for having too many incoming personal calls on his telephone during office hours and discussing nonworking matters with other employees, "negative" comments to two subordinates during a 1981 intra-agency election, and an alleged failure to return a long-distance telephone call to someone seeking information. However, no formal disciplinary action was taken against Petitioner for any of these actions, and his personnel file reflects no written comments. He also sued the agency twice, once in 1977 over an insurance claim, and a second time in 1980 concerning a cash award he claimed was due for making a suggestion. However, this action did not result in any written or oral warnings from his superiors. In May, 1981, Hall, Rogers and Caluwe met to discuss a transfer from a supervisory position (supervisor of water permit section) to a water management engineer III, which was a staff position. Although Caluwe admitted he was "burned out" in his supervisory role, he protested being demoted to a staff position and requested he be given an engineer IV slot. Notwithstanding his request he was demoted to the lower position. On March 17, 1982, an annual agency meeting was held at which time the agency executive director spoke to all employees. Prior to that time an undated memorandum was posted on the agency's bulletin board "urging" all employees to attend. Another memorandum dated March 1, 1982, which rescheduled the meeting to another date, simply advised members of Caluwe's department when the talk was to be held, but made no mention regarding attendance. Caluwe did not attend the meeting because he did not consider it to be mandatory. He based this conclusion upon the fact that the memorandum urged vis a vis required attendance, and because other employees had missed the meeting in prior years. He conceded, however, that it was "implied" from the memorandum that he attend the meeting. Respondent construed the memorandum to mean that attendance was compulsory, and that "everybody (was) expected to attend." Whether this specific meaning was ever conveyed to all employees, including Caluwe, before the meeting was not disclosed. During the annual agency meeting Caluwe remained working in his office. While there, an unidentified member of the public approached a temporary receptionist seeking information concerning a problem. The receptionist in turn went to Caluwe seeking his aid in responding to the inquiry. Caluwe responded, "I don't know. That's not my job. Pat Gleason's group handles that." Out of "curiosity", the receptionist reported his comments to a department head, who in turn told Rogers. Neither the receptionist nor the member of the public were identified, and neither appeared and testified at the final hearing. Whether or not the receptionist suffered "abuse" as a result of this as the agency claims was not confirmed. Rogers, Hall and Caluwe met on March 18 concerning his absence from the annual meeting and the "incident" with the receptionist. On March 22 Caluwe was given a written warning and assigned 25 disciplinary points for being guilty of a Category 2e offense under the agency's Corrective Action-Procedure Index and Corrective Action-Policy. The Index and Policy "defines appropriate corrective actions for resolving performance problems and violations of rules of conduct" by agency employees. In short, it represents the agency's written code of conduct for employees. A 2e offense is defined therein as a "(f)ailure to follow authorized instructions." In conjunction with the written warning, Caluwe was also given a memorandum prepared by Rogers on March 19 which explained in greater detail the conduct that precipitated the disciplinary action. In the memorandum Rogers referred to a number of things which prompted the disciplinary action, including the "incident" with the receptionist, the missed meeting, and Caluwe's apparent use of the telephone for personal use during the meeting as reported by the temporary receptionist. However, since the 25 points were given to Caluwe for failing to follow authorized instructions, it is found that disciplinary action was taken because he failed to attend the annual meeting. On March 29, 1982, Caluwe wrote a fourteen-page letter to Rogers giving his version of what occurred on March 17, and explaining in great detail other "incidents" that had occurred during the preceding eighteen months, Attached to the letter were 23 exhibits. Among other things, Caluwe accused Hall and Rogers of "improper conduct and abuse of authority" in handling the other incidents that had previously arisen. He also criticized their ability to manage and communicate with employees. The letter indicated that copies of the same were being mailed to each member of the agency's governing board, its Executive Director, Deputy Director, and Records Clerk, and an outside attorney. Rogers accepted the letter as merely being a response to his memorandum of March Caluwe was not disciplined for this action. On March 31, 1982 Caluwe wrote a two-page letter to the members of the governing board of the agency and enclosed his March 29 letter and exhibits previously sent to Rogers. In his March 31 letter, Caluwe stated, among other things, that management "occupie(d) a position of trust", that it had "breached this trust", that it "rule(d) by intimidation and fear and not in the spirit of cooperation", and urged the board members to conduct an independent investigation of his "allegations". A copy of this letter was also furnished an outside attorney. On May 13, 1982 Caluwe sent another letter to the members of the governing board in which he inquired as to the status of the investigation he had called for in his letter of March 31. Caluwe also raised allegations concerning the agency's general counsel, and claimed the general counsel had "used sick leave for purposes other than for which it was intended (and) falsified his bi-weekly time reports and received pay and benefits for periods he was absent from work", and that the problem was created because his leave slips had been approved by the agency's deputy executive director. That complaint is now the subject of a Florida Commission on Ethics proceeding. Caluwe had previously brought this subject to Rogers' attention sometime in 1980. There was no evidence his to the reaction, if any, by the members of the governing board to this letter or the one previously sent on March 31. Caluwe did not furnish his supervisors a copy of the letter but did copy the records clerk of the agency. Neither Rogers nor the agency personnel director received copies of the same until late July, 1982. In June, 1982 Caluwe contacted reporter for the Miami Herald to disclose the fact that the chairman of the agency's governing board had been involved in selling insurance to the board. On June 22, 1982 outside counsel for the agency wrote the agency's personnel director telling him, among other things, that it would call the director the next day concerning Caluwe and provide him "with language to be included in a letter of termination." It also referred to a need to review in detail "SFWMD's termination, grievance, and personnel policies to make sure that Caluwe's discharge, and the procedures used to implement the discharge, comport with due process." At this point, then, the agency had decided to terminate Caluwe. On July 21, 1982 Caluwe again wrote a letter to the members of the governing board. The text of the letter is set out below: To members of the Governing Board of the South Florida Water Management District: You are to be congratulated for your unity in not addressing controversial topics. It's an unfortunate situation when special interests are put ahead of the public trust that has been vested in you. The only reasonable conclusion that I can reach is that you condone poor management and theft. Perhaps some of you have committed acts similar to these and that's why you cannot afford to get involved. Well you are involved! It's satisfying to note the courts have held directors personally liable in civil actions and that penalties are not limited to compensatory damages but that punitive damages can be assessed. It's also interesting to note that you may be found culpably negligent in permitting acts like these to occur. Since you have been unwilling to do your own house cleaning, I have decided to help you in this matter. I think it would be an excellent idea if the citizens of South Florida had an opportunity to see how the South Florida Water Management District has acted in favoring special interests. When this happens you will not honestly be able to say, "we didn't know". One member of the Board responded by letter dated July 23, 1982 that she considered it inappropriate for Caluwe to write directly to board members and instructed him to use channels that were provided for handling complaints. She added that Caluwe's letter struck her as being "offensive". The letter made no direct reference to Rogers and Hall, and they were not furnished a copy. However, on July 26 Rogers was given a copy of the letter. On July 30, 1982 Rogers sent Caluwe a memorandum in which he informed Petitioner that his employment was being terminated at 5:00 p.m. on August 4, 1982, and not to report to work after July 30. In brief, the reasons given for Caluwe's termination were (a) his "uncooperativeness shown a co-worker" on March 19, and his "failure to respond to a request for information from a member of the public", which collectively constituted a 2e offense for which he was previously assigned 25 points on March 19, 1982; (b) his letter to Rogers on March 29, 1982 which alleged poor management, illegal activity and unfair treatment to Caluwe, and which "personally attacked and insulted Charles Hall and (Rogers)"; (c) his letter of July 21 to the board which contained "inflammatory, threatening, and abusive language" and which constituted Category 2h and 3a offenses for which he received 75 points in total, and an additional 25 points which was given for the same letter by virtue of Caluwe's "failure to follow promulgated grievance and complaint procedures'; 3/ (d) the accumulation of a total of 125 points since March 19 which was in violation of Section E.1.d. of the Corrective Action Policy; and (e) "actions" which interfered with Rogers' ability to maintain internal discipline", made it impossible to work with (Caluwe)", made it "impossible to transfer (him) to a different Department", which "interfered with (his) performance of assigned duties", and which showed a "tendency on (his) part to make untrue and misleading statements." A Category 2h offense is defined in the Policy-Index as the "(u)se of abusive language to a co-worker" while a Category 3a offense is defined as the "(u)se of abusive or threatening language to the public, or use of threatening language to a co-worker." Category 2e offenses carry the imposition of 25 points for each violation. Fifty points are assigned for a violation of a Category 3 offense. Section E.1.d, of the Policy-Index provides that "(a) total of 100 points in effect may be cause for termination." The Policy-Index requires that "(c)orrective action shall be taken as soon as possible, but not more than five working days from the time the supervisor becomes aware of the incident." The memorandum of July 30, 1982 was followed by a letter to Caluwe on August 5 from Rogers which confirmed that his employment had been terminated. The letter also instructed Caluwe on the time limitations for filing a request for an administrative hearing. Thereafter, a timely request for a hearing was filed. The agency adopted an "Employee grievance Procedure" on July 15, 1977. Its purpose was to allow all employees the opportunity to quickly and fairly resolve a grievance." The Procedure provides a specified procedure for hearing and resolving various types of complaints from employees, including a hearing by an Employee Relations Committee (ERC), a further review by the unit manager or department director, a second hearing by a Grievance Review Board, and a final decision by the agency's executive director. According to the agency's personnel director, the agency has fired employees in one of two ways in the past: (a) when the employe has accumulated more than 100 disciplinary points under the Policy-Index, and (b) when the employee has committed certain acts, irrespective of the Policy-Index. Thus, it contends the agency may, at its discretion, determine whether to terminate an employee by assessing points under the Policy-Index or by merely giving notice to the employee even though he has accumulated no points under its written code of conduct. Even though an employee has accumulated over 100 points, the agency may not necessarily fire an employee. For example, on one occasion an employee accumulated 135 points but was not fired. In the case at bar, the agency considered Caluwe's 125 points to be incidental to his termination, and viewed his supervisor's inability to work with him, his letter writing activities and prior "incidents" to be the major concern and basis for the termination. Whether the District had a policy of terminating an employee whenever his actions made it impossible to transfer him to another department or whenever a supervisor could not work with an employee was not disclosed. It was also not disclosed whether all employees, including Caluwe, were aware of such policies, and the ramification for violating the same. There was no evidence as to the reason for such policies, the types of proscribed conduct within each policy, and the authority for adopting the same. Caluwe blamed his firing primarily on the fact that he had prompted an investigation of the agency's general counsel, who was a long-time District employee. He acknowledged he failed to use the Employee Grievance Procedure when he wrote directly to the members of the governing board, but claimed the ERC was ineffective in dealing with management problems. Caluwe did not dispute that he missed the annual meeting, and wrote the letters in question; however, he contends they do not justify the disciplinary action imposed by the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that all charges against Petitioner be dismissed except for one Category 2e offense for which 25 points should be imposed. It is further RECOMMENDED that Petitioner be reinstated in the position of water management engineer III retroactive to August 4, 1982 and that he be given full back pay between that date and the date of reinstatement. DONE and RECOMMENDED this 8th day of June, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1983.
Findings Of Fact On the evening of February 7, 1978 Officer Di Stasio stopped a vehicle driven by Michael Gross in the City of Clearwater. The primary reason for stopping this vehicle was that Gross had exited onto the main street from a side street and nearly collided with the car driven by Di Stasio. After stopping the vehicle Di Stasio questioned the driver regarding the registration of the vehicle, among other things, and although Gross could not produce the registration he did produce a Bill of Sale for the vehicle dated in 1976. Gross told Di Stasio that the car had been registered in his wife's name, that they were in the process of getting a divorce, and the registration was probably in the mail to him. The tag was from Kentucky, was bent and rusty, and was secured to the vehicle by wire. In lieu of citing Gross for driving with an invalid tag Di Stasio removed the tag from Gross's car and advised Gross that it was unlawful to drive the vehicle without a valid tag. Di Stasio subsequently threw the tag in the trash and made no report of the incident. The Clearwater police had a book showing the various states' automobile tags and expiration dates of these tags. Had Di Stasio radioed in for this information he would have learned that the tag on Gross' car had not expired. Police officers had been instructed regarding the existence of the book but Di Stasio apparently missed the training session when this Information was disseminated. The following morning on February 8, 1978 Gross appeared at the police station to inquire what he needed to do to drive his car. He related the instance of the previous evening to Captain Enlow of the Clearwater Police and when the latter could find no report of the incident called Gross at his home to come down to the police station. Di Stasio advised Captain Enlow that he thought the tag was invalid and therefore he removed it from the car. Although the tag had a `77 decal on it information in the police station indicated the tag was valid until March, 1978. Di Stasio took Gross to the tag office in the courthouse where he was able to obtain a temporary tag for the vehicle. As a result of Officer Di Stasio removing the tag and failing to maintain custody of the tag as required by police regulations he was suspended without pay for three days. Subsequent inquiries to Kentucky confirmed that the car was properly registered to Michael Gross and that the tag on the vehicle was a valid tag on February 8, 1978. Respondent's primary explanation for removing the tag from the vehicle was that Gross told him the tag had been placed on the vehicle to come to Florida and that it did not belong to the car. Gross was not a witness at this hearing and this testimony was rebutted by information in Exhibit 6 received from the Lexington, Kentucky Police. In defense of his actions in not securing the tag as required by Rule 73 when it came into his possession, Respondent produced several witnesses who testified that they had been instructed not to bring in partly filled beer cans or to remove whiskey from a motor vehicle when the driver was apprehended. None of these witnesses recalled any specific instance where a tag had been removed from a vehicle and not accounted for pursuant to Rule 73. Respondent contended that a police officer is given wide latitude to exercise discretion in the handling of property and as an example cited the instances when children's toys are left in the street and the police do not take this property into custody. The principal exception to the rule that property coming into the possession of a police officer is to be turned in to the property office involves the handling of alcoholic beverages which is not evidence.
The Issue The issues in this case are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on sex, whether Respondent was sexually harassed, and whether Respondent retaliated against Petitioner for making a complaint of sexual harassment.
Findings Of Fact Ms. Hunt was hired by Sears on January 9, 2006, as an appointment specialist, which is a telemarketer position. Sears provides home improvement products such as siding. The duties of an appointment specialist include calling potential Sears customers and scheduling appointments for the Sears salespersons and the customers. Each year, the chief executive officer of Sears sends the Sears associates a reaffirmation statement of affirmative action and equal employment opportunity. The letter, which is posted at each call center, states in part: Our fair employment policies are not new to Sears. These policies prohibit harassment or discrimination against any applicant, associate, vendor, contractor, or customer on the basis of race, color, religion, gender, gender identity, ancestry, national origin, age, disability, veteran status, pregnancy, citizenship, sexual orientation, marital status, ethnicity, or any other reason prohibited by law. These policies also prohibit all forms of retaliation against any individual who complains of being harassed or discriminated against. Each new hire, including Ms. Hunt, is provided with a copy of the Sears harassment policy on their first day of employment. The harassment policy is also posted at each call center. The harassment policy states that Sears prohibits sexual harassment and provides examples of actions that may constitute sexual harassment. Such examples include “[i]nappropriate comments, jokes, or remarks because of or based on a person’s status” and “[t]ouching someone in a sexual way, including hugs, kisses, pinches, etc.” The Sears harassment policy further requires an employee to take action if the employee: [F]eel[s] uncomfortable in a situation because of someone’s harassing, sexually aggressive, abusive, or discriminatory behavior. [F]eel[s] that another’s harassing, sexually aggressive, abusive or discriminatory comments or actions toward [the employee] or a fellow associate, vendor, customer, etc. are improper in a work environment. [B]elieve[s] that another’s harassing, sexually aggressive, abusive, or discriminatory behavior impairs the [employee’s] ability to do [his or her] job, or [W]ants the harassing, sexually aggressive, abusive, or discriminatory behavior to stop. If an employee believes that a violation of the harassment and discrimination policy has occurred, the Sears harassment policy tells the employee to take the following actions: Explain the situation to your immediate supervisor or manager. If you are not satisfied with your supervisor’s or manager’s response, or if you are uncomfortable speaking with him or her, immediately contact his or her manager or your human resources representative. If you still find that sufficient attention has not been given to your complaint, or if you are uncomfortable talking with someone in your unit, associates should contact the company’s the EthicsAssist Line at 1-800-BASSIST or Associates Services at 1-888-88sears. Sears has a progressive discipline policy and a progressive progress policy. Employees are given coaching discussions and verbal performance memos for the first step. The second step, third, and fourth steps are performance plans for improvements. The last step is a final warning. Sears has a dress code policy. On April 6, 2006, Ms. Hunt was sent home because she was in violation of the dress code policy. On April 13, 2006, a coaching discussion was held with Ms. Hunt concerning her productivity. Ms. Hunt was not meeting the daily requirements for making calls. The minimum standard was 165 calls out daily and 12 appointments. Ms. Hunt was averaging approximately 78 calls per day. On May 15, 2006, Ms. Hunt received a step-two performance plan for improvement for not adhering to the Sears attendance policies. The performance plan stated the performance issues as follows: Tonja’s attendance does not meet company expectations. Since the beginning of her employment Tonja has had multiple occurrences. On 01-30 scheduled court date, 02-10 out due to a family emergency, 02-21 out due to a court hearing for her daughter, 03-06 out due to daughter personal issues, 03-30 called running late, 04-14 late, 04-19 late, 04-24 thru 04-25 out due to oral surgery. Tonja does not have any time available to her an[d] any further occurrences will count as separate occurrences. On June 1, 2006, Ms. Hunt received a verbal performance memo for not meeting the company requirements for productivity. Her productivity for April was .05, which was below the company minimum of 1.3. In October 2006, Ms. Hunt received a step-three performance plan for improvement. The performance issues were described as follows: Tonja’s productivity for the month of September was that of 0.64 which is well below company minimums of 1.3 and a company goal of 1.8. Tonja’s attendance has yet to improve. Since 05-15-06 Ms. Hunt has had 12 additional occurrences. On November 7, 2006, Ms. Hunt received a step-four performance plan for improvement due to work performance and misconduct. The performance issues were described as follows: Work Performance: Below monthly minimum standard of 1.3; Tonja’s results--.60 has not met standards since hire date. Attendance: 10/27/06, instructions given to Tonja to call in by noon on Monday & speak to Luis. Previously warned of attendance on 10/9/06 & 5/15/06. Failed to follow directive Could not be reached until 11/1 Misconduct: 10/27/06, received multiple complaints regarding inappropriate comments of a sexual nature to other associates on the call floor. Upon investigation, behavior was in violation of company policy. 11/3/06, Tonja instructed by Management and HR not to discuss investigation with other associates. Complaints received regarding Tonja not following this directive and discussing the matters of the investigation with other associates. On November 13, 2006, Ms. Hunt was given a performance memo which served as a “final warning.” The memo stated the reasons for the final warning as follows: As stated in the PPI Written Step IV document issued on 10-03-06, there were to be no more attendance occurrences. According to the timekeeping system, you clocked in 40 minutes late on 11-09-06. This memo serves as your final warning. Another attendance occurrence will result in immediate separation. On January 17, 2007, Ms. Hunt received her annual performance evaluation, which rated her on nine areas of performance. Ms. Hunt received an overall performance evaluation of two, which meant that improvement was needed. She received a rating of one in the areas of productivity, availability, and adherence to policy. A rating of one signifies that the performance is unacceptable. Sears terminated Ms. Hunt’s employment effective January 23, 2007, for poor performance. When Ms. Hunt began her employment with Sears, she worked in a unit in which Mr. Royston Kenneth Khadaroo was the team leader. As team leader, Mr. Khadaroo would provide assistance to the other employees concerning the work assignments. He was not a supervisor and had no authority to fire, discipline, or otherwise affect the terms and conditions of employment of the other employees in the unit. Beginning in May 2006, Ms. Hunt claims that Mr. Khadaroo began to sexually harass her.1 According to Ms. Hunt, Mr. Khadaroo made the following statements to her: “I think you are pretty” and “I think you must be cold.” Ms. Hunt took the second statement to mean that he was referring to her nipples. Ms. Hunt claims that on one occasion, he made a measurement using his finger and thumb. She took the action to mean that he was referring to the length of her crotch. On another occasion, Ms. Hunt claims that while Mr. Khadaroo was giving her a ride to her car that he put his hands between her legs. Prior to August 2006, Ms. Hunt made no attempt to advise her supervisor or other management at Sears concerning Mr. Khadaroo’s actions. In August 2006, Mr. Khadaroo approached Darlene Lighthouse, who was one of Ms. Hunt’s supervisors and told Ms. Lighthouse that Ms. Hunt had been making accusations against him and that he wanted the issue to be addressed by upper management. Mr. Khadaroo also advised Luis Saez, who was another of Ms. Hunt’s supervisors, that he wanted an investigation because Ms. Hunt had been making complaints against him. After Mr. Khadaroo complained to Ms. Lighthouse, she sent him home and talked to Ms. Hunt. Ms. Hunt told Ms. Lighthouse that Mr. Khadaroo had been sexually harassing her. Ms. Lighthouse sent Ms. Hunt home and began an investigation into the allegations. Up until Ms. Hunt’s claims, there had been no complaints from any employee concerning Mr. Khadaroo. Ms. Lighthouse’s investigation did not reveal any witnesses to Ms. Hunt’s allegations. There was no evidence to support or refute Ms. Hunt’s claims of sexual harassment. It was a case of “he said, she said.” To alleviate the situation, management decided to move Ms. Hunt from the unit in which Mr. Khadaroo worked. Ms. Hunt’s workstation was moved so that she worked a few rows away from Mr. Khadaroo. After the investigation, Ms. Hunt did not experience any further unwelcome advances or comments from Mr. Khadaroo. On October 12, 2006, Ms. Hunt filed a Charge of Discrimination with the Commission, alleging that Sears had discriminated against her based on her sex.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entering dismissing Ms. Hunt’s Petition for Relief. DONE AND ENTERED this 15th day of April, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2009.
The Issue Whether the Petitioner, Fletcher Armour, should have been suspended by the Respondent, City of Clearwater, for a three-day period.
Findings Of Fact The Petitioner is an employee of the City of Clearwater and was at the time pertinent to this hearing a meter reader for the city. He was suspended for a period of three (3) days beginning July 31, 1979, and ending August 2, 1979, for insubordination and a serious breach of discipline. In February, 1979, Petitioner Armour and his superior, Fred W. Lewis, Accounts Supervisor, discussed the Petitioner's planned vacation. The Petitioner requested six (6) consecutive days: June 28 and 29, 1979, for religious reasons, plus the following four (4) days. Although tentative written approval was given by Lewis, he warned the Petitioner that if a meter reader with seniority requested the same four (4) "non-religious" vacation days Lewis would have to accede to the request for the reason that there is a seniority policy in the Utilities Department of the City of Clearwater, and further that the department could not properly function with two (2) meter readers on vacation at the same time. Lewis told the Petitioner that the two (2) vacation days requested for religious purposes, June 28 and 29, would be granted regardless of seniority. Subsequent to this first meeting, a Mr. Henderson, a meter reader with seniority over Petitioner Armour, requested the same four (4) days desired by the Petitioner. To resolve this conflict of vacation schedules, Lewis called a meeting during early June, 1979, at which all meter readers were present, including Kim Kyler, a witness for Respondent at the hearing. According to the testimony of Lewis and Kyler, Lewis asked Petitioner Armour during the meeting what days he wanted to take off. Petitioner responded by stating he would take his first two (2) vacation days (June 28 and 29), but not the last four (4) days, and that he would postpone taking these four (4) days until sometime in December when he had two (2) weeks. He was then told that he was not entitled to two (2) weeks until after January 1, and therefore could not take the requested four (4) days in December. Lewis thereupon documented the vacation schedules of Petitioner Armour and Henderson accordingly, giving Henderson the last four (4) days he desired and had theretofore requested. Witness Kyler corroborated the testimony of Lewis. Petitioner Armour took off the four (4) days following the two (2) days leave granted that he had requested in February but was denied in June.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the three (3) days suspension of the Petitioner, Fletcher Armour, by the Respondent, City of Clearwater, be sustained. DONE and ORDERED this 10th day of January, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Rick Griesinger, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518 Mr. Fletcher Armour 535 Fairwood Avenue, #230 Post Office Box 794 Clearwater, Florida 33518
The Issue The issues to be determined are whether Respondent, Tammy Malone, violated section 1012.795(1)(d), (g), or (h), Florida Statutes (2008), or Florida Administrative Code Rule 6B- 1.006(3)(a) or (5)(a), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent, Tammy Malone, has held Florida Educator's Certificate 606947, covering the areas of elementary education and health. Her certificate is valid through June 30, 2011. During the 2008-2009 school year, Respondent was employed as a second-grade teacher at Edgewater Elementary School (Edgewater) in the Escambia County School District. During the 2008-2009 school year, the principal at Edgewater was Steven Schubert. Anthony Boling was a third-grade teacher. Dr. Steve Schubert was the principal at Edgewater starting in January 2006 through May 2009. Edgewater closed after the 2008-2009 school year. At the end of the 2007-2008 school year, Respondent had completed her third year of annual contracts with the Escambia County School District. Dr. Schubert offered her a fourth-year annual contract for the 2008-2009 as opposed to a continuing contract. Melinda Vest was the 2008-2009 PTA president, and a parent liaison. She also sometimes worked as a substitute teacher at Edgewater. Deborah Moore, a secretary at Edgewater, heard Respondent call Ms. Vest uneducated and unprofessional. The statement was made in front of students, and was made in a loud and angry tone of voice. Ms. Vest reported the incident to the curriculum coordinator, and it was agreed that Ms. Vest would not work in Respondent's classroom. On September 25, 2008, Dr. Schubert asked Respondent to come to his office and sign a notice of a counseling meeting scheduled for the next day. The counseling notice, dated September 25, 2008, referenced three areas of concern: unprofessional remarks to two students; unprofessional and disrespectful remarks about the PTA president; and teacher complaints about disruptive behavior in faculty meetings. The purpose of calling Respondent to Dr. Schubert's office on September 25, 2008, was simply to provide her written notice of the counseling session, which advised her of her right to have union representation present. Upon receipt of the notice, Respondent immediately became loud and hostile. She stood over Dr. Schubert's desk and refused to listen to him, despite the fact that he was trying to tell her that it was simply a notice of a meeting at which she could have union representation and the opportunity to respond to the items listed. According to Dr. Schubert, he was sitting at his desk with Respondent leaning over it, leaning toward him as she continued to talk in a loud, angry voice. Despite his repeated requests for her to leave, she did not do so until he stood up at his desk, put his hands on his desk to get her attention, and pointed to the door, telling her, "Mrs. Malone, leave my office now!" He then went to the door, opened it, and stood there while she exited the office. Dr. Schubert found the incident upsetting, and spoke to his assistant about it. Respondent's memory of the meeting is quite different. According to a letter that she sent to the chief of Professional Practices Services at the Department of Education, On Thursday, September 25, 2008 at approximately 10:45 a.m., Steve R. Schubert, principal of Edgewater Elementary School in Pensacola, FL did the following to me. He called me away from my students and my classroom, told me to sit down in his office as he closed the door behind me. He proceeded to present me with a letter with a new list of lies about me on it He demanded that I sign the letter, which had three negative, false and anonymous statements written on it about me. The letter also notified me that I was to attend a "counseling session" with Steve Schubert and my union representative within the next 24 hours. I stated to him that I did not want to sign the letter because it was not true. Steve R. Schubert grew irate. He shouted in anger at me "Sign it Malone!" his entire body shook, his face turned bright red, and his veins and eyeballs bulged out. He lunged across the desk at me, bared his teeth and intimidated me further. I signed the letter and then I stepped away from his desk and he came around his desk, and raised his hand up toward me as intention of doing me physical harm. I backed away and opened his office door and returned to my classroom and students. Dr. Schubert's version of the events taking place on September 25, 2008, is credited. The counseling session with Respondent took place the following day, September 26, 2008. Present at the meeting was Dr. Schubert, Respondent, and Ms. Husbands, Respondent's union representative. Respondent interrupted him several times, requiring Ms. Husbands to caution her to let him finish. Respondent denied having done anything wrong and insisted that others were simply out to get her. She was given a written summary of the session, which she signed, that included strategies for dealing with the complaints. Evidence to support the first and third items listed for the counseling session with Respondent was not presented at hearing. Competent, persuasive evidence regarding her statements about Ms. Vest is described in paragraphs 6-7. Edgewater had a rotating schedule for lunch, meaning that classes were assigned a lunch-time location for a set period of time. Once one class's lunch period was finished, another class would be scheduled to sit in the same area. The rotation required that classes adhere to their assigned timeframe so that all classes could be seated for lunch. Respondent's class was sometimes late leaving the lunchroom area, which affected other classes who came after her. On or about October 9, 2008, Respondent's class was late leaving the lunchroom. As a result, Mr. Boling left a lunch schedule in Respondent's school mailbox to remind her of her assigned lunch period. He did not put any note or message on the schedule, but simply left it in her mailbox in the teacher workroom. Respondent was apparently offended by Mr. Boling's actions. When he arrived home that evening, Respondent had left a message on his telephone answering machine, in which she stated: I see you're a bully on your home phone, too. Mr. Boling, this message is for you, Anthony. This is Tammy Malone-Bailey. If you speak to, harass me or look at me the wrong way or put anything in my box from you again, you're going to have the police at your door. I hope you're clear on this. I hope that you get it. Evidently, you have issues with people and I'm not going to be your whipping boy any more. You need to butt out and mind your own business and stick to what you know. I'm not sure what that is. It doesn't seem like much. Respondent's voice in the message was angry and hostile. Mr. Boling was offended by the message and found it hostile, abusive and, to the extent it threatened police action, intimidating. When Mr. Boling arrived at school the following morning, he went to Dr. Schubert, reported the incident, and gave him a copy of the voice mail message. He then proceeded to his classroom for the start of the school day. In order to reach his classroom, Mr. Boling had to pass by Respondent's classroom. As he did so, Respondent was standing in the doorway of the class, and there were students present. Mr. Boling glanced at Respondent as he walked by, and when he did so, Respondent stated in a loud, condescending voice, "Don't you even," as well as other statements directed at Mr. Boling. He found her tone to be offensive and confrontational. Mr. Boling did not respond to Respondent but kept walking down the hall to his classroom. Tamara Fischbeck was a guidance counselor at Edgewater. She was in the hall when the exchange between Respondent and Mr. Boling occurred. Ms. Fischbeck was standing in her duty position in the hallway and could see Respondent, and could hear her speaking in a loud, angry, raised voice. She was concerned about Respondent's behavior, which she described as "out of control," especially in an area congested with students. Ms. Fischbeck went over to Respondent to see if she could calm her down, and told her to "let it go." The incident concerned her enough that she reported it to Dr. Schubert, who asked her to write a report of the incident. Ms. Fischbeck is a close friend of Mr. Boling's and admitted that she may have been present in a group when some teachers made statements about Respondent's teaching style that were not complimentary. She denied ridiculing Respondent on faculty meetings. While Ms. Fischbeck candidly admitted a friendship with Mr. Boling which could imply a bias in his favor, her testimony was straightforward and candid, and is accepted. On October 20, 2008, Respondent received a written reprimand, in part because of the telephone message left on Mr. Boling's answering machine, and her interaction with him the following day. The written reprimand also referenced other incidents about which evidence was not presented at hearing, but that included further statements related to Ms. Vest. In this reprimand, Mr. Schubert referenced the previous counseling session and advised Respondent that she was being given another chance to improve her performance, but that without improvement in her interactions with faculty and staff, she would be subject to further disciplinary action. Consistent with the statements in her reprimand, the bulk of the evidence presented at hearing dealt with Respondent's interactions with other staff as opposed to her relationship with her students. One student, D. L., testified regarding an incident where Respondent pulled her out of line by the arm, an action that allegedly caused a bruise. She admitted however, that Respondent was breaking up a fight between D. L. and another girl. D. L.'s testimony appeared to be influenced by who was asking her questions. Her mother also testified, but had no direct knowledge of what transpired in the classroom. In addition, it was clear that although D. L.'s mother did not particularly care for Respondent, she felt that Respondent had worked to get her daughter some assistance she needed. There was also testimony that another child, E. E., was removed from Respondent’s class and placed with another teacher because the child appeared afraid to go into Ms. Malone's classroom, and was acting out. Once he was transferred, his disciplinary problems stopped. The evidence was far from clear and convincing, however, that Respondent mistreated the children in her classroom. There are many explanations for why a child might be afraid to go into a classroom, including the behavior of other students. Here, the only evidence is that E. E. was afraid, but no competent, persuasive evidence was presented as to why. Edgewater was slated to close at the end of the 2008- 2009 school year. On March 2, 2009, Respondent received a notice that her annual contract for 2008-2009 would expire at the end of the school year. Respondent signed the notice on March 17, 2009. During the first week of May 2009, the school district sent out email notices to teachers at Edgewater of their new assignment for the 2009-2010 school year. However, Dr. Schubert had determined that he would not be recommending Respondent for a contract the following year, so she did not get a notice of reassignment. On May 8, 2009, Dr. Schubert called Respondent to his office to tell her of his decision to recommend that her contract not be renewed. He did not make the decision based on her classroom performance: as he stated in a memorandum to Alan Scott, the Assistant Superintendent for Human Resources, all school-based observations regarding classroom performance indicated that Respondent was a proficient educator. However, "additional data gathered throughout the year concerning Mrs. Malone's professional interactions with administration, faculty, and staff at Edgewater Elementary forced me to conclude that her performances in these . . . categories was well below proficiency." Because of past incidents involving Respondent, Dr. Schubert called the Human Resources Department for the School District to request that a law enforcement officer be available when Ms. Malone was told of his decision. Alan Scott agreed with Dr. Schubert's request, and a school resource officer, Deputy Nick Harris, was sent to the school, arriving at approximately 7:50 a.m. A school-wide event called Field Day was scheduled that included a series of outdoor activities planned for the morning. At about 8:15 a.m., Dr. Schubert asked Jessica Bryan, the school's curriculum coordinator, to escort Respondent to his office. Another staff member went with Ms. Bryan to cover Respondent's class while she met with Dr. Schubert. Ms. Malone was irritated by the interruption and made the comment that "Mr. Inept" needed to see her. Students were in her classroom at the time she made the comment regarding the school's principal. When Respondent arrived at Dr. Schubert's office, she was asked to sit down, but refused to do so. Dr. Schubert attempted to tell her that she was not going to be rehired for the 2009-2010 school year, and to explain her options to her. Respondent was not listening, however. She responded by telling Dr. Schubert, in a voice loud enough to be heard outside his office, that he would rot in hell, and that everyone knew he was incompetent.1/ Respondent's conduct was loud, verbally abusive, hostile, and totally inappropriate in an elementary school setting. At this point, Respondent was either unwilling or unable to listen to Dr. Schubert. He asked her to leave campus, and she refused. At that point, he signaled for Deputy Harris, and in his presence again asked Respondent to leave campus, and she again refused. Dr. Schubert then asked Deputy Harris to escort her to her classroom to retrieve her personal belongings, and to escort her to her car so that she could leave campus. At no time during the interchange with Respondent did Dr. Schubert raise his voice. On the way to her classroom, Respondent continued to be loud and angry. She referred to Dr. Schubert as a "Nazi" and a "faggott," also in a loud voice. Deputy Harris suggested to Respondent that she could not talk that way, and upon retrieving her purse and keys, escorted her to her car and watched her drive off campus. Dr. Schubert notified the District of the outcome of his meeting with Respondent. As a result, later that day Respondent was placed on administrative leave, effective immediately, "pending the outcome of an investigation into an allegation of misconduct." Respondent signed the notice on May 8, 2009, at 11:17 a.m. Respondent was reassigned to her home for the remainder of the school year. On June 17, 2009, Dr. Scott advised Respondent by letter that, since her annual contract had expired on June 3, 2009, and she was no longer an employee of Escambia County School Board, the investigation into her conduct ceased to be active. In reality, Respondent did not really dispute much of her conduct, described above. She admitted leaving the tape recording on Mr. Boling's voice mail, but minimized its effect. She did not seriously dispute her comments to Dr. Schubert on May 9, 2009. Instead, she focused her efforts on discrediting Dr. Schubert and laying the blame for her problems at Edgewater at his feet. It is clear, from the totality of the evidence, that the working relationship between Respondent and Dr. Schubert was poor. Whether the relationship deteriorated because of Respondent's temper or because of Dr. Schubert's failure to "support" her, or some factors in between, is not a determination to be made in this proceeding. The focus here is Respondent's behavior and whether it conformed to the standards expected of educators in the State of Florida. As stated in the conclusions of law, Respondent's behavior did not meet appropriate standards.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and (j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(5)(d) and (e). It is further recommended that the Commission suspend Respondent's teaching certificate for a period of 60 days; require Respondent to undergo an evaluation by the Recovery Network Program (RNP) and conducted by a Florida licensed professional licensed pursuant to chapter 490 or 491, Florida Statutes, approved by RNP, and successfully complete any treatment recommended as a result of the evaluation; and impose a probationary period of two years upon her return to teaching, subject to terms determined by the Commission. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 11th day of May, 2011.
Findings Of Fact At all times relevant hereto, Sammie Rayner, Respondent, was employed by the City of Clearwater as a customer service representative in the utility department. On February 11, 1992, Respondent needed to take her daughter to Seminole High School for a test and mentioned this to Joyce Griesel, Senior Customer Service Representative. The only city employees in the customer service section with authority to grant Respondent permission to leave the building on February 11, 1992, were John Scott, Utility Consumer Response Manager and Tim Bissonnette, Customer Service Supervisor. On the afternoon of February 11, 1992, Bissonnette was out of the office attending a conference; however, Scott was available. Bissonnette was Respondent's immediate supervisor, and Scott was over Bissonnette. Prior to October 1991, the Senior Customer Service Representative had authority to allow customer service representatives to leave the building for short periods. However, because of an incident in October 1991, this authority was removed from the Senior Customer Service Representative, and all employees were advised of the changed policy. Although Respondent denies that she was told that only Scott and Bissonnette could grant permission to leave the building, she did ask if Bissonnette was available before she departed the office around 3 p.m., on February 11, 1992. Respondent also contends that she asked Giesel for permission to leave, but Giesel denies that she gave such authorization, knowing full well that she had no such authority. Respondent was not given permission to leave the building on February 11 by Giesel.
