The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are 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 adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 January, 2015.
The Issue The central issue in case no. 88-2368 is whether Respondent should be suspended for thirty workdays due to misconduct in office. The central issue in case no. 88-3315 is whether Respondent should be dismissed from employment due to misconduct in office, gross insubordination, and incompetency.
Findings Of Fact COPIES FURNISHED: Marlene Rodriguez 16333 Wood Walk Miami Lakes, Florida 33014 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
Recommendation Based on the foregoing, it is RECOMMENDED: With regard to case no. 88-2368, that the School Board of Dade County enter a final order affirming the administrative decision to suspend Respondent for a thirty workday period for misconduct in office. With regard to case no. 88-3315, that the School Board of Dade County enter a final order affirming the administrative decision to dismiss Respondent from employment for misconduct in office, incompetence, and gross insubordination. DONE and RECOMMENDED this 1st day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2368, 88-3315 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the exception of George C. Clark, Mr. Clark's testimony was offered by deposition. Paragraph 2 is accepted. Paragraphs 3-4 are accepted. Paragraph 5 is rejected as a recitation of testimony, not specific facts adduced by such testimony; some of the recitation being without basis. It is found that Respondent did not follow school policies regarding the discipline administered to students, that Respondent was aware of the correct procedures, and that Respondent continuously had trouble regarding classroom management. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted but is unnecessary to the conclusions reached in this cause. Paragraph 10 is accepted not for the truth of the matters asserted therein but as a indication of the student-teacher relationship between Respondent and one of the students she taught. Paragraphs 11, 12, and 13 are accepted. Paragraph 14 is accepted not for the truth of the matters asserted therein but see p.9 above. Paragraph 15 is accepted. Paragraph 16 is accepted not for the truth of the matters asserted therein but see p.9 above as it relates to the hearsay contents of the letter. Other portions of the paragraph which conclude respondent knew discipline procedures but did not follow them, or knew notice policies but did not follow them are accepted. Paragraphs 17 and 18 are accepted. Paragraphs 19,20,21, and 22 are accepted only to the extent addressed in findings of fact, paragraphs 7,8,9, and 10; otherwise, the proposed findings are rejected as contrary to the weight of the evidence or unsupported by admissible evidence. Paragraphs 23, 24, and 25 are accepted. With regard to paragraph 26, the first two sentences are accepted, the balance is rejected as hearsay or unsupported by the record in this cause. Paragraphs 27, 29, and 30 are accepted. (Petitioner did not submit a paragraph 28) In the future, proposed findings submitted which do not conform to the rules of the Florida Administrative Code will be summarily rejected. Petitioner is cautioned to review applicable rules, and to cite appropriately. RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the clarification that Clark's testimony was offered by deposition. Paragraph 2 is accepted. With regard to paragraph 3, according to the evidence in this case, Repodent taught at Miami Gardens Elementary School (Leon was her principal there) and North Carol City Elementary School (Sawyer and Brown were her principals there). Other schools may have been assigned during her periods of "special assignment" but the record is insufficient to establish Respondent's performance while on such assignments. The record is insufficient to make the legal conclusion addressed in paragraph 4, consequently, it is rejected. The Board addressed a recommendation to terminate Respondent's employment; however, the record does not establish final action was taken. The facts alleged in paragraph 5 are too voluminous to address in one paragraph. Petitioner's continued use of a recitation of the testimony does not constitute findings of fact. Pertinent to this case are the following facts adduced from Petitioner's paragraph 5: that Respondent's overall performance was unacceptable, that Respondent failed to direct students who were off task, that Respondent made an excessive number of referrals for discipline, and that the atmosphere in Respondent's class was not conducive to learning. With the exception of the last sentence in paragraph 6, it is accepted. The last sentence is rejected as contrary to the weight of the evidence. See finding made regarding paragraph 5, case no. 88-2368. Paragraph 8 is rejected as contrary to the specific evidence presented. Paragraph 9 is accepted. Paragraphs 10-14 are accepted. Paragraph 15 is rejected with the exception of the last sentence; the time sequence referred to is not specified in the record. The record does establish, however, that Respondent did not make progress in correcting noted areas of deficiency. Paragraphs 16 and 17 are accepted. Petitioner's proposed findings of fact have duplicate numbers for the following paragraphs: 15,16, and 17. The second set of these paragraphs are addressed below. Second paragraph 15 accepted not for the truth of the matters asserted but as an indication of the teacher-student relationship between Respondent and her student. Second paragraph 16 is accepted. Second paragraph 17 is accepted. Paragraph 18 is accepted. Paragraphs 19-22 are accepted.
The Issue Whether Respondent, Mark Ostermeier, violated Sections 1012.795(1)(c), (1)(g), and/or (1)(j), Florida Statutes (2011), and/or Florida Administrative Code Rule 6A-10.081(3)(a), as alleged by the Administrative Complaint dated October 14, 2014; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Pam Stewart, as Commissioner of Education, on behalf of the Florida Educational Practices Commission, is authorized by Florida law to investigate and prosecute cases against teachers with Florida teaching certificates. See §§ 1012.315, 1012.795, and 1012.796, Fla. Stat. Respondent, Mark A. Ostermeier (Respondent), holds a Florida educator’s certificate, Certificate No. 662488, covering the subject area of art, grades kindergarten through 12. Respondent’s teaching certificate is valid through June 30, 2016. At all times material to the allegations of this case, Respondent was employed by the Brevard County School District (District) and worked as an art teacher at the high school and elementary school levels. Except for the school year ending 2002, the District issued acceptable evaluations to Respondent. From the time Respondent was assigned to Bayside High School (Bayside) until the 2008/2009 school year Respondent received acceptable evaluations. For the school years 2008/2009 and 2009/2010 Respondent was assigned to Bayside. The principal at Bayside during the relevant time span was Robin Novelli. While at Bayside, Respondent was responsible for instructing students in grades 9 through 12 in the area of art. During the 2008/2009 school year, Mr. Novelli became concerned regarding Respondent’s classroom management, planning, and instruction. Although he signed off on the evaluation for that year (performed by another school administrator), Mr. Novelli decided he would assume the role of evaluator for Respondent for the following school year. Before 2008/2009, Respondent received acceptable evaluations. The principal at Bayside during those years was John Tuttle, who signed off on all of Respondent’s evaluations, but did not personally evaluate Respondent. Mr. Tuttle believed Respondent to be a competent instructor. In May 2009, Respondent exhibited unacceptable behavior and Mr. Novelli received complaints from a parent and student that Respondent had refused to return the student’s artwork. The student withdrew or did not re-enroll in Respondent’s art class, and Respondent took one of the student’s paintings to his home. When the student and parent demanded the return of the painting, Respondent refused to return it. When Mr. Novelli intervened, Respondent relented and eventually returned the student’s painting. The student believed Respondent was refusing to return the painting in an effort to get the student to re-enroll in Respondent’s class. Respondent denied the allegation but did not have a valid reason for not returning the student’s art. Bayside did not have an advanced placement (AP) art program. Respondent was desirous of establishing such a program and sought to do so. One of the activities that would enhance an AP art program was a field trip Respondent proposed for students to attend a National Portfolio Day conference. Respondent attempted to pitch the field trip for his art students, but did not follow directives in order to get the trip approved. Mr. Novelli did not approve the trip. Respondent did not have art students who met the requisite level of proficiency to warrant an AP level class. Nevertheless, Respondent continued to fuel the students’ desire to attend the conference. When Respondent failed to meet the prerequisite criteria to have the field trip approved, he blamed Mr. Novelli. In October 2009, Mr. Novelli observed Respondent and gave him an interim evaluation that marked him as overall unsatisfactory. Five categories were unsatisfactory and one category needed improvement. Thereafter, Mr. Novelli gave Respondent prescriptive plans for improvement. The Professional Development Assistance Plans (PDAPs) itemized what Respondent needed to do to improve his performance. The plans provided specific strategies and acts for Respondent to do to improve. Respondent did not follow the PDAP. Trying to communicate with Respondent proved difficult, as his interpretation of what was needed to improve differed from the directives of the PDAP. Respondent did not improve, and it became Mr. Novelli’s opinion that students in Respondent’s art classes had been deprived a minimum educational experience. Mr. Novelli’s expectations of Respondent were based upon his years as a trained administrator to evaluate teachers in all courses. Because Respondent continued to provide deficient classroom management, planning, and instruction, Mr. Novelli evaluated Respondent as unsatisfactory. As the end of the school year approached, Respondent’s performance did not improve to any significant degree. Rather than continue at Bayside, Respondent’s union representative, acting on his behalf, sought a transfer for Respondent to another school. That transfer was granted by the District. Respondent made several false accusations against Mr. Novelli and/or other school administrators. At one time or another Respondent stated he had been recorded with a USB recording pen; had been falsely arrested because of a false claim made by a District employee; had been poisoned due to an environmental hazard that Respondent was forced to endure; lost a child because of District treatment; and had his car vandalized by a school administrator. None of the accusations were accurate. Respondent started the 2010/2011 school year with a PDAP at Lockmar Elementary School (Lockmar). While at Lockmar, Respondent was supervised by the principal, Ms. Hostetler. Respondent respected Ms. Hostetler and acknowledged she had worked to assist him. Nevertheless, despite her efforts to give Respondent constructive help to meet the criteria and to improve deficiencies, Ms. Hostetler evaluated Respondent as unsatisfactory. The issues with planning, classroom management, and ability to provide effective instruction to students continued. In October 2010, Ms. Hostetler gave Respondent an interim evaluation that scored him as unsatisfactory in four categories and needs improvement in one. Ms. Hostetler noted that (as in the past) Respondent failed to have adequate lesson plans, failed to provide meaningful instructions to students in an organized, efficient manner, and failed to manage his classroom to assure that all students were appropriately engaged in the lesson. Additionally, Ms. Hostetler noted that Respondent did not have his classroom ready for instruction when students arrived for class and did not timely release the students back to their teachers at the conclusion of the art session. This was a problem because the classroom teachers were delayed or inconvenienced by Respondent’s behavior. Despite counseling for this issue, Respondent’s deficiencies at the beginning and conclusion of class continued. It came to Ms. Hostetler’s attention that Respondent was sending disruptive students outside his classroom to “look for dinosaurs.” His belief that this technique for behavior management was acceptable was erroneous. Ms. Hostetler did not approve the practice and opined that it placed students at risk. Respondent did not accept Ms. Hostetler’s authority as definitive on the issue. Respondent maintained that his technique was an acceptable strategy that should have been allowed. Ms. Hostetler next evaluated Respondent in February of 2011. Noting little improvement, the February evaluation found the Respondent’s teaching practices remained unsatisfactory. Respondent failed to use 21st Century equipment as Ms. Hostetler had requested. Additionally, he did not use art materials appropriately, did not control the classroom, and did not differentiate course work by age and grade. Nevertheless, Ms. Hostetler gave Respondent more time to improve and again issued a PDAP that was designed to give Respondent specific directives. At the conclusion of the school year, Ms. Hostetler evaluated Respondent’s performance as unsatisfactory. He was given a contract for the following school year in error. The District eventually caught the mistake and notified Respondent that his employment with the schools would be terminated. Subsequent to a two-day administrative hearing, the DOAH Administrative Law Judge issued a Recommended Order that found the District’s action was supported by the weight of the evidence presented. Respondent’s teaching was unacceptable during the 2010/2011 school year and failed to provide students with a meaningful educational opportunity. Respondent was incompetent to comply with directives, which were reasonable and tailored to help Respondent meet the mandates of the PDAPs. Respondent’s art students were deprived a minimum educational experience.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Educational Practices Commission enter a final order revoking Respondent's teaching certificate. S DONE AND ENTERED this 30th day of June, 2016, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 30th day of June, 2016. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Robert Charles McClain, Esquire 4910 Flora Drive Melbourne, Florida 32934 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue for determination is whether Respondent should be suspended and dismissed from employment with Petitioner.
Findings Of Fact No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Ms. Woods was employed as a paraprofessional with the School Board. At the time of hearing, Ms. Woods had been a paraprofessional with the School Board for 19 years. No dispute exists that, at all times material hereto, Ms. Woods was a member of the United Teachers of Dade (UTD) and was subject to the terms and conditions of the collective bargaining agreement between UTD and the Miami-Dade County Public Schools (UTD Contract). At all times material hereto, Ms. Woods was assigned as a paraprofessional to Robert Renick Education Center (Robert Renick). She was assigned to assist Alexander Phillips, who is an exceptional student education (ESE) teacher, in an ESE class. Robert Renick is a school for ESE students. All of the students are emotionally, behaviorally disturbed, and some have additional disabilities. They are dually diagnosed with autism and as educable mentally handicapped and trainable mentally handicapped. Since the 2004-2005 school year, Fred Clermont has been employed at Robert Renick as an ESE teacher. Prior to October 18, 2007, one of Mr. Clermont’s students had hit one of the staff members at Robert Renick. Mr. Clermont testified that, after the incident, Ms. Woods told him that, if one of his students ever hit her, she would “fuck [him (Mr. Clermont)] up.” Mr. Clermont’s testimony is found to be credible. On October 18, 2007, at the time of school dismissal for Robert Renick, Mr. Clermont was escorting one of his students, A. F., who was nonverbal, to the flagpole, a common area for students, whose bus was late, to wait. Because the student was hitting himself and Mr. Clermont and was spitting and kicking, Mr. Clermont shouted for everyone to move back and clear a path through which he (Mr. Clermont) could bring the student. Students and staff were moving out of the way; however, Ms. Woods did not. A. F. struck Ms. Woods in the back or shoulder area. Mr. Clermont testified that Ms. Woods turned around, pushing A. F. to the ground, and struck him (Mr. Clermont) in the chest. Mr. Clermont immediately apologized to Ms. Woods for A. F. hitting her. Mr. Clermont testified that Ms. Woods responded to his apology by shouting obscenities at him and reminding him of what she told him earlier as to what she would do if one of his students ever hit her. Mr. Clermont’s testimony is found to be credible. The student, A. F., became further upset, got out of his harness, and struck another staff member, David Jefferson, Dean of Discipline. Mr. Clermont and Mr. Jefferson were able to bring A. F. under control by holding him down and calming him. Mr. Clermont further testified that, as he was getting up from holding A. F. down, he (Mr. Clermont) was hit on the side of his face by Ms. Wood; that the blow knocked his (Mr. Clermont’s) sunglasses off his face and one of his contact lens out of his eye; and that Ms. Woods was shouting obscenities at him (Mr. Clermont)—“Yeah, mother fucker, I told you I would hit your mother fucking ass. I told you, bitch . . . .” Additionally, Mr. Clermont testified that Ms. Woods looked at her cellular telephone and declared that they were off the clock and he (Mr. Clermont) was going to get his “ass whupped now”; and that she kicked-off her shoes and earrings and lunged at him, only to be held back by Mr. Phillips. A. F. was later placed safely on his bus. Mr. Clermont’s testimony is found to be credible. Mr. Jefferson testified at the hearing. He testified that, when Mr. Clermont requested persons to move and make a path through which he (Mr. Clermont) could bring A. F., Ms. Woods stated that she was not moving and that, if that “retarded mother fucker hit me, I’m going to hit your punk ass”— referring to Mr. Clermont. Mr. Jefferson further testified that he witnessed Ms. Woods punch Mr. Clermont in the chest and that Mr. Clermont apologized to Ms. Woods. Additionally, Mr. Jefferson testified that, after he and Mr. Clermont were able to restrain A. F., Ms. Woods hit Mr. Clermont in the face, knocking his (Mr. Clermont’s) sunglasses off; that Ms. Woods looked at her cellular telephone and indicated the time, as no longer being within the work day; that Ms. Woods kicked-off her shoes and removed her earrings; and that Ms. Woods was restrained by Mr. Phillips. Mr. Jefferson did not testify that he observed Ms. Woods strike or push the student. Mr. Jefferson’s testimony is found to be credible. Mr. Phillips testified at hearing. At the time of the incident on October 18, 2007, he was standing next to Ms. Woods. He testified that he observed Ms. Woods strike Mr. Clermont twice, look at her watch, indicating that the work day had ended, and kick-off her shoes. Mr. Phillips further testified that he grabbed Ms. Woods because she was a good paraprofessional and he did not want to get into trouble. Mr. Phillips did not testify that he observed Ms. Woods strike or push the student. Mr. Phillips testimony is found to be credible. Bernadette Adams, a paraprofessional at Robert Renick, testified at the hearing. She was also standing next to Ms. Woods at the time of the incident on October 18, 2007. Ms. Adams testified that she did not observe Ms. Woods push or strike the student. Ms. Adams also testified that she heard Ms. Woods express to Mr. Clermont that she (Ms. Woods) told him would happen if the “autie mother fucker . . . .” hit her and that she (Ms. Woods) was going to “hit [his] punk ass.” Further, Ms. Adams testified that she observed Ms. Woods’ arm come down, kick off her shoes, and indicate to Mr. Clermont that they were off the clock. Furthermore, Ms. Adams testified that Mr. Clermont responded to Ms. Woods by asking Ms. Woods whether she (Ms. Woods) was “fucking crazy.” Ms. Adams left the scene of the incident. Ms. Adams’ testimony is found to be credible. Shayon Tresvant, the indoor suspension teacher at Robert Renick, testified at the hearing. At the time of the incident on October 18, 2007, he was assisting with dismissal and was approximately 10 or 11 feet from Mr. Clermont and Ms. Woods. Mr. Tresvant did not observe Ms. Woods strike or push the student; however, he did observe Ms. Woods acting in an aggressive manner towards Mr. Clermont. Additionally, Mr. Tresvant heard Mr. Clermont ask Ms. Woods why she had hit him (Mr. Clermont) and Ms. Woods mention the timeframe or the time of the day. Mr. Tresvant testimony is found to be credible. Ms. Woods testified at hearing. She admits that she observed Mr. Clermont having problems controlling and calming down student A. F. Ms. Woods testified that she felt a punch or hit to her arm and turned around and, in turning around, that she may have struck the student, but, that, if she did, it was not intentional. Taking into consideration the testimony of other witnesses at hearing, Ms. Woods’ testimony, regarding the striking of A. F., is found to be credible. The evidence demonstrates that Ms. Woods did not intentionally strike the student A. F. Further, Ms. Woods testified that she requested Mr. Clermont to get the student under control and that she observed Mr. Clermont laughing. As a result, Ms. Woods testified that she concluded that Mr. Clermont was joking with her and playfully punched him and told him to “stop playing.” Ms. Woods’ testimony is not found to be credible. Additionally, Ms. Woods testified that, after Mr. Clermont and Mr. Jefferson got the student under control and on the bus, she (Ms. Woods’) touched Mr. Clermont’s neck in a playful manner and that Mr. Clermont began screaming and cursing at her. Ms. Woods testified that she vocally objected to Mr. Clermont raising his voice to her, looked at her watch and indicated that they were not off work until 3:50 p.m., and told Mr. Clermont not to “play with her.” Also, Ms. Woods testified that, at no time, did she intentionally strike Mr. Clermont. Ms. Woods’ testimony is not found to be credible. The evidence demonstrates that Ms. Woods intentionally struck Mr. Clermont. After placing the student A. F. on the bus, Mr. Clermont reported the incident with Ms. Woods to the principal of Robert Renick, Allison Harley, Ed.D. While reporting the incident to Dr. Harley, Mr. Clermont was highly emotional, distraught, and “crying.” At that time, Mr. Clermont was not certain of the action that he wanted to take. The following day, October 19, 2007, Mr. Clermont indicated to Dr. Harley that he wanted to report the incident to the school police. He prepared a written statement, which was witnessed by Dr. Harley. On October 19, 2007, Mr. Clermont was referred to a Workers’ Compensation physician. Mr. Clermont was diagnosed with a skull contusion. On October 19, 2007, Mr. Clermont made a formal complaint to the school police. The procedure for employee investigations is set forth in the School Board’s Personnel Investigative Model (PIM), which has been adopted by the UTD. Pursuant to the PIM, once an allegation is made, the site administrator (here, the principal, Dr. Harley) contacts the school police. Additionally, the accused employee is notified verbally of allegations within 24 hours and in writing within 48 hours. Further, pursuant to the PIM, as to investigations which may lead to suspension or dismissal of an employee, only the Superintendent or the Superintendent’s designee may authorize the investigation. When an officer of the school police is assigned to investigate the allegation(s), the officer meets with the complainant, interviews witnesses, and generates a report, referred to as a lead sheet. For a criminal allegation, the school police’s General Investigative Unit (GIU) maintains the lead sheet, conducts the investigation, and presents the lead sheet to the State Attorney’s Office. At the conclusion of the investigation, the accused employee is notified of the outcome of the investigation; forwarded a copy of the investigative report; advised of his or her right to request a supplemental report; and given five days to file written exceptions, which could possibly change the outcome of the investigation. On October 19, 2007, when the incident was reported to the school police and which was a Friday, Dr. Harley was not able to verbally notify Ms. Woods because Ms. Woods was not at Robert Renick; she was absent. On Monday, October 22, 2007, Dr. Harley notified Ms. Woods verbally of the allegations. By letter, dated October 22, 2007, Dr. Harley notified Ms. Woods in writing of the allegations, identifying, among other things, the case number, the complainant, and the nature of the complaint, which was “simple battery.” By her signature, Ms. Woods acknowledged that she received the written notice; and by dating the written notice, indicated that she (Ms. Woods) received the written notice on October 23, 2007. Pending the outcome of the investigation, Ms. Woods was removed from Robert Renick. She was placed on paid administrative placement in an alternate assignment at FDLRS- South. Detective Rafael Gomez was assigned to and did conduct the investigation regarding the complaint against Ms. Woods. The Superintendent’s designee who authorizes investigations which may lead to suspension or dismissal of an employee is the Assistant Superintendent for the Office of Professional Standards (OPS). The lead sheet indicates that Officer Michael Alexander assigned the investigation to Detective Gomez and authorized Detective Gomez to perform the investigation. By letter dated October 26, 2007, the School Police notified Ms. Woods, among other things, that a criminal investigation was being conducted, that the complainant was Mr. Clermont, that the nature of the complaint was “Battery on [a] School Employee,” and that she would have an opportunity to provide a formal statement, but that she had a right to decline to give a formal statement. Ms. Woods declined to give a formal statement on the advice of counsel. Having completed the investigation, Detective Gomez determined that probable cause existed to support the allegation that Ms. Woods violated School Board Rules 6Gx13-5D-1.07, Corporal Punishment-Prohibited and 6Gx13-4-1.08, Violence in the Workplace. The investigative report was submitted by GIU to OPS. By letter dated November 9, 2007, OPS notified Ms. Woods, among other things, that probable cause was found as a result of the investigation, simultaneously providing a copy of the investigative report, and that she had an opportunity, within five days to submit written exceptions. Ms. Woods acknowledged receipt of the letter on November 13, 2007, by signing and dating the letter. Subsequently, a conference-for-the-record (CFR) is held with the affected employee by OPS to provide an opportunity for the employee to respond to allegations. At the conclusion of the CFR, the affected employee is informed that the case will be presented to the Assistant Superintendent of OPS and the employee’s site supervisors to obtain a recommendation for disciplinary action. A summary of the CFR is forwarded to the affected employee and the affected employee is advised within the summary that he/she has a right to append any additional information that was not included in the summary. Prior to School Board action, a meeting is held with the affected employee, during which he/she is verbally notified of the recommended disciplinary action and of his/her right to request a hearing after the School Board takes official action. On December 7, 2007, a CFR was held with Ms. Woods by OPS to discuss the finding of probable cause and her future employment with the School Board. In addition to Ms. Woods, attendees at the CFR included, among others, Ana Rasco, Ed.D., Administrative Director of OPS; Will Gordillo, Assistant Superintendent, Division of Special Education; Sonja Clay, Executive Director, Division of Special Education; Dr. Harley; and members of UTD, Sherri Daniels, UTD Union Representative, and Joy Jackson, UTD Steward, Robert Renick. During the CFR, Ms. Woods stated that she did not intend to strike the student A. F., and that she was attempting to avoid being struck by A. F. when she allegedly struck him. Additionally, during the CFR, Ms. Woods was provided information regarding the options of resignation or retirement, but she declined to exercise either one of the options. At the conclusion of the CFR, the recommendation was to terminate Ms. Woods. A summary of the CFR was prepared and a copy was provided to Ms. Woods. Even though Dr. Harley had written favorable recommendations on Ms. Woods’ behalf prior to the incident, she (Dr. Harley) still agreed with the recommendation made at the CFR meeting. Dr. Harley testified at hearing that no such incident had occurred at the time that she wrote the recommendations; that violence in the workplace could not be tolerated; that staff was teaching children not to be aggressive; and that staff must exhibit what they teach. Dr. Harley’s testimony is found to be credible. By memorandum dated January 29, 2008, Maria Rojas, Associate Superintendent of OPS, advised Dr. Rudolph Crew, Superintendent of Schools, among other things, of the allegations, the investigation, and the finding of probable cause. Ms. Rojas’ recommendation was to suspend Ms. Woods employment with the School Board, without pay, and to begin dismissal proceedings against Ms. Woods, effective at the close of the workday on March 12, 2008. By memorandum dated February 22, 2008, Ms. Woods was directed to attend a meeting at OPS on February 26, 2008, to address the recommendation to be made at the School Board meeting on March 12, 2008. She was notified at the meeting on February 26, 2008, that termination of her employment would be recommended at the School Board meeting. By letter dated February 27, 2008, Ms. Woods was provided written notification that, at the School Board meeting on March 12, 2008, the Superintendent of Schools would recommend suspension, without pay, and the initiation of dismissal proceedings against her for just cause for, not only the two original violations, but, also, for violating School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics. OPS prepared an agenda School Board item for the School Board meeting being held on March 12, 2008, regarding the recommended action against Ms. Woods. The agenda item, among other things, quoted verbatim the information contained in the letter dated February 27, 2008. OPS did not provide Ms. Woods a copy of the agenda item. The standard operating procedure of OPS is to not provide a copy of such agenda item to the affected employee. At its meeting on March 12, 2008, the School Board accepted the recommendation and took action to suspend Ms. Woods and to initiate dismissal proceedings against her from all employment with it. The School Board’s decision was based upon the violations set forth in the agenda item. Ms. Woods timely protested the action taken by the School Board and requested an administrative hearing. On May 5, 2008, the School Board filed in the instant matter a Notice of Specific Charges. Ms. Woods was served a copy of the Notice of Specific Charges. As a result of the allegations against Ms. Woods, she was arrested. She was charged with one felony and two misdemeanors, but, at the time of the CFR, only one misdemeanor remained, with “no action” being taken on the other charges. Ms. Woods pled no contest to the remaining misdemeanor charge, with the court, among other things, withholding adjudication and placing her on probation. Additionally, the court entered a Stay Away Order, Non-Domestic Violence against Ms. Woods on behalf of Mr. Clermont and the student A. F. Ms. Woods has not been the subject of prior disciplinary action by the School Board. The evidence demonstrates that, prior to the incident on October 18, 2007, Ms. Woods was perceived by the principal and assistant principal at Robert Renick as an outstanding and effective paraprofessional. The evidence also demonstrates that, prior to the incident on October 18, 2007, Ms. Woods had never been engaged in physical contact with a student or co-worker.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Monique S. Woods without pay from March 12, 2008, through the end of the 2008-2009 school term and under other terms and conditions deemed appropriate by the Miami-Dade County School Board. DONE AND ENTERED this 30th day of April 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2009.
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 Whether Petitioner has just cause to terminate Respondent's employment as a school custodian based on the allegations contained in the Notice of Specific Charges filed June 21, 2001.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public education within the school district of Miami-Dade County, Florida. See Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a custodian at Miami Edison Middle School (Miami Edison) and Horace Mann. Both schools are public schools located in Miami-Dade County, Florida. On May 16, 2001, Petitioner voted to suspend Respondent's employment as a school custodian and to terminate that employment. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME). AFSCME and Petitioner have entered into a Collective Bargaining Agreement (the Agreement) that includes provisions for the discipline of unit members. Article II of the Agreement provides that Petitioner may discipline or discharge any employee for just cause. Article XI of the Agreement provides specified due process rights for unit members. Petitioner has provided Respondent those due process rights in this proceeding. Article XI of the Agreement provides for progressive discipline of covered employees, but also provides that ". . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. " Article XI, Section 4C of the Agreement provides that employment may be terminated at any time for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. On February 6, 1996, Respondent was issued a memorandum from the principal of Miami Edison involving Respondent's use of profanity in the presence of students. In the memorandum, the principal directed Respondent not to use profanity on school grounds. On May 21, 1998, Respondent, Mark Wilder, Clarence Strong, and a student were in the cafeteria of Horace Mann preparing for a fund raising activity. Respondent spouted profanities directed towards Mr. Wilder and threatened him with a mop handle. Respondent feigned a swing of the mop handle, causing Mr. Wilder to reasonably fear he was about to be struck by the mop handle. Mr. Wilder had done nothing to provoke Respondent. Mr. Strong knew Respondent and was able to defuse the situation. Mr. Wilder reported the incident to Senetta Carter, the principal of Horace Mann when the incident occurred. Ms. Carter reported the incident to Petitioner's director of region operations. Respondent received a copy of the School Board rule prohibiting violence in the workplace. After investigation, the school police substantiated a charge of assault against Respondent. On March 15, 1999, Petitioner's Office of Professional Standards held a Conference for the Record (CFR) with Respondent pertaining to the incident with Mr. Wilder. Respondent was specifically directed to refrain from using improper language and from displaying any action that another person could interpret as being a physical threat. On October 25, 2000, during the evening shift, Respondent physically assaulted William McIntyre and Noel Chambers while all three men were working as custodians at Horace Mann. Respondent shouted profanities towards both men, threatened them, and violently grabbed them by their shirt collars. Respondent punched Mr. McIntyre in the area of his chest and broke a chain Mr. Chambers wore around his neck. Mr. Chambers and Mr. McIntyre reported the incident to Robin Hechler, an assistant principal at Horace Mann. Respondent came to Ms. Hechler's office while she was interviewing Mr. McIntyre about the incident. When Ms. Hechler attempted to close the door to her office so she could talk to Mr. McIntyre in private, Respondent put his hand out as if to move Ms. Hechler out of his way. Ms. Hechler told Respondent not to touch her and instructed him to wait outside her office. Ms. Hechler later told Respondent to come in her office so she could interview him. Respondent was acting irrationally. Ms. Hechler told him if he could not control himself she would call the school police. Respondent replied that was fine and walked out of her office. Ms. Hechler reported the incident to the school police, who ordered Respondent to leave the premises. Following the incident, neither Mr. Chambers nor Mr. McIntyre wanted to work with Respondent because they were afraid of him. In response to the incident involving Mr. McIntyre and Mr. Chambers, the principal of Horace Mann referred Respondent to the Petitioner's Employee Assistance Program on November 2, 2000. Respondent's shift was changed so he would not be working with Mr. Chambers or Mr. McIntyre. On November 7, 2000, Respondent attacked J. C., a student at Horace Mann, in the cafeteria area of Horace Mann to punish J. C. for something Respondent thought J. C. had said or done. Respondent shouted profanities towards J. C. and choked his neck. J. C. was very upset and injured by Respondent's attack. Respondent was arrested on November 7, 2000, on the offense of battery on a student. On February 21, 2001, he was adjudicated guilty of that offense, placed on probation for six months and ordered to attend an anger control class. Respondent was also ordered to have no contact with J. C. School Board Rule 6Gx13-4-1.08, prohibiting violence in the workplace, provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools [sic] employees have a right to work in a safe environment. Violence or the threat of violence will not be tolerated. School Board Rule 6Gx13-5D-1.07, provides that corporal punishment is strictly prohibited. Respondent's attack on J. C. constituted corporal punishment. School Board Rule 6Gx13-4A-1.21, provides as following pertaining to employee conduct: I. Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ORDERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of December, 2001. COPIES FURNISHED: Frank Ferguson 7155 Northwest 17th Avenue, No. 9 Miami, Florida 33147 John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Does just or proper cause exist to terminate Respondent- custodian, an educational support (non-instructional) employee for gross insubordination, misconduct in office, violation of the Code of Ethics by attempting to use students for personal gain, and overall unsatisfactory job performance?
Findings Of Fact Respondent was first employed as a custodian at Gainesville High School by the Alachua County School Board on August 16, 1993. As such, he qualified as "non-instructional personnel" and as an "educational support employee." He remained continually employed until the termination letter giving rise to the instant case. At all times material to this cause, Respondent was employed under a Collective Bargaining Agreement between his union and the School Board. On May 20, 1994, Respondent completed training for and was certified as a "Certified Custodian." He received a "step-up" in pay as a result. Certification attests to competency, not performance or attitude. Samuel D. ("Sam") Haywood, Assistant Principal, supervised and evaluated Respondent through a chain of command during the school years of 1993-1994, 1994-1995, and 1995-1996. Despite an interim evaluation identifying problem areas on March 16, 1995, Respondent was rated overall "satisfactory" annually during those years. Petitioner had a history of being uncooperative and verbally abusive with the Head Custodian and Lead Worker, but these problems were resolved by the subsequent annual evaluations and prior to the present charges, so they have not been considered. At the conclusion of the 1995-1996 school year, Sam Haywood was replaced as Assistant Principal by John C. Williams, who continued to supervise Respondent through a chain of command that descended through Albert Williams, Head Custodian, and Alexander Bradley, Lead Worker. As of the 1996-1997 school year, Respondent was the on- site union representative for the Gainesville High School custodians. Assistant Principal John C. Williams holds a master's degree in school psychology and is a certified school psychologist. He had held the position of school psychologist in Sarasota County for ten years prior to his appointment at Gainesville High School. His supervisory experience consists of two years as assistant manager at Eckerd Drugs before becoming a school psychologist. At all times material he was responsible for the maintenance needs of Gainesville High School, making sure maintenance needs were responded to by the central office or the maintenance person on staff. That responsibility covered the upkeep of the grounds and the buildings. He was responsible for the cafeteria as far as being the immediate supervisor of the cafeteria manager and was responsible for the discipline of approximately 1,950 students. He also was responsible for the security of the buildings, responding to fire emergencies and evaluating one-fourth of the instructional staff. In addition, he was the site supervisor of the custodial staff with twelve custodians, plus the Head Custodian. Virginia S. Childs is the Principal of Gainesville High School. James Williams, Mark Lee, and Willie Townsend are custodians at Gainesville High School. On September 4, 1996, the Assistant Principal tried to locate Respondent because he wanted part of Respondent's assigned area raked and mowed for a sports activity that was taking place that evening. After searching from approximately 4:30 to 5:15 p.m., the Assistant Principal located Respondent exiting a restroom outside of his assigned area. The Assistant Principal directed Respondent to rake and mow the designated area "for company." By both the Assistant Principal's and Respondent's accounts, the Respondent told the Assistant Principal twice that, since he could not complete the job by 6:00 p.m. quitting time, he would mow or he would rake, but he would not do both. The Assistant Principal repeatedly told Respondent to do both jobs. In the course of arguing with the Assistant Principal, Respondent also appealed to a teacher/coach standing nearby that he should not have to do both jobs. The Respondent did not complete the job as requested. The Assistant Principal did not cite Respondent for not completing the September 4, 1996, assignment as requested, but, upon proper notice, he held a conference on September 6, 1996, to discuss the incident. Present were the Assistant Principal, the Principal, the Respondent, and the Respondent's union representative. In the conference the Assistant Principal stated that on September 4, he had simply requested the Respondent to do a job, and he did not expect to have to explain or justify the request to the Respondent. The Principal explained to the Respondent that the Assistant Principal was the Respondent's supervisor and that Respondent must comply with his work assignments unless they were harmful or unlawful even if Respondent disagreed with them. She explained that Respondent should first comply with the Assistant Principal's request and he could then pursue a grievance, if he felt a grievance were warranted. It was explained that the Respondent needed to be a member of a team and contribute positively and without wasting time instead of being confrontational and argumentative with his supervisor. The Respondent stated that he was a man and that he had the right to disagree with his supervisor about how his job should be done. No progressive discipline form was provided to Respondent. At formal hearing, Respondent maintained he had injured his back in 1994 and later injured his neck and left shoulder in January 1995, but the medical documentation shows an injury on March 3, 1995, to his neck and a September 27, 1996, strain to his trapezius muscle (shoulder). A School Board document references an October 2, 1996, injury. Respondent explained the new date of injury of September 27, 1996, was assigned by his doctor so that workers' compensation would cover an aggravation of the old injury. According to Respondent, the School Board initially denied the claim(s), but a ruling in his favor became final on November 26, 1996.2 In any case, after September 27, 1996, the Assistant Principal put considerable effort into adjusting Respondent's work hours and assigning him duties which complied with the evolving physical restrictions placed on him by his doctors. In order to improve general efficiency, the Assistant Principal and Head Custodian Albert Williams revised the work schedules of all the custodians, changing hours of work, lunch times, and even shifts. Albert Williams passed out the revised schedules and told the custodians that there would be a meeting in the conference room on October 3, 1996, to discuss the changes in their schedules and that they could ask questions about their schedules then. At the October 3, 1996, meeting, Willie Townsend raised questions about his own revised schedule. The Assistant Principal told him that they were there to discuss schedule changes and his priorities generally but not individual situations. He invited all the custodians to discuss individual schedules privately one-on-one in his office immediately after the general meeting. Respondent raised his hand, taking it upon himself as the on-site union representative, to speak on behalf of Mr. Townsend. The Assistant Principal recognized Respondent, but again said he would not go over each individual schedule in the meeting. Respondent continued to interrupt, and the Assistant Principal stated his position again. Over continued comments by Respondent, the Assistant Principal asked Respondent to be quiet. Respondent persisted in speaking, making rude comments, while the Assistant Principal tried to quiet him and move on with the meeting. The Assistant Principal finally rose from his seat and told Respondent to, "shut up." Respondent then stood up, too. Both men's voices were raised. As a result of this exchange, the meeting broke up without accomplishing anything. No credible evidence supports a finding that Respondent used profanity in the October 3, 1996, meeting.3 When the meeting broke up, the Assistant Principal led the way to his office. Behind closed doors, the Assistant Principal met with Respondent and Albert Williams. The Assistant Principal positioned himself behind his desk and told Respondent that his actions in the meeting had been inappropriate and uncooperative. The Respondent stated that he had a right to speak and that the Assistant Principal "could not tell me to do a damn thing." There is no evidence of profanity beyond this remark, which Respondent admits he made.4 The Assistant Principal asked Respondent to leave his office. Respondent did not leave. Instead, he asked to use the telephone to call a union representative. The Assistant Principal told him he would have to use the public telephone in the outer office. Respondent replied that the telephone on the Assistant Principal's desk was a public telephone and he had a right to use it. He reached for the telephone. The Assistant Principal moved the telephone out of Respondent's reach and stood up, asking Respondent to leave his office. Respondent then "bowed up," clenching his hands into fists at his sides. The Assistant Principal's perception was that Respondent was positioning himself to strike him. By that time, the voices of the two men were loud enough to be heard in an adjacent front office by Dr. Arnold of the school administrative staff, the school receptionist, two students, and a parent volunteer. Their movements were also observed through the office's glass door. Albert Williams felt it necessary to calm Respondent, caution him against any further talk or actions, and cajole him into leaving the Assistant Principal's office. No force was necessary to remove Respondent. The Assistant Principal snapped that Respondent, "was suspended." Respondent left the Assistant Principal's office and began talking to other custodians who had waited outside. Respondent then attempted to involve Dr. Arnold. She told him she would not speak to him at that time. Only then did Respondent and the other custodians disperse. After Respondent left the area where he had been talking with other custodians, Business Manager Judy Warren authorized him to sell tickets at the junior varsity football game. Principal Childs was apprised of the situation, and when she looked for Respondent, Ms. Warren told Ms. Childs where to locate him. The Principal went to Citizens' Field where the varsity game was being played. She told Respondent he was relieved of his duties and on paid administrative leave for October 4, 1996. Respondent had pre-scheduled vacation leave for the next two weeks. Upon appropriate notice, a disciplinary conference was held when the Respondent returned from his vacation on October 21, 1996. Present were the Respondent; Ms. Birdsong, Personnel Supervisor; a union representative; the Assistant Principal; and Dr. Jim Scaggs, Assistant Superintendent for Human Resources. At the conference, Dr. Scaggs reviewed the incident of October 3, 1996, with the Respondent, including written accounts by Dr. Arnold and the Assistant Principal. Dr. Scaggs informed the Respondent that it was not appropriate to challenge his supervisor during a staff meeting. He told Respondent that the Assistant Principal was the Respondent's supervisor and directed Respondent to recognize him as his supervisor. He further directed the Respondent to follow his supervisor's directions, work cooperatively with him in the future, and refrain from challenging him. Dr. Scaggs confirmed his oral instructions in writing, issued a notice of suspension of the Respondent without pay for three days, October 23-25, 1996, for raising his voice in the October 3, 1996, general meeting and afterwards, using mild profanity, attempting to use intimidating body language, insubordination, and a flagrant disrespect for his superior's authority, and Ms. Childs' failure to find Respondent on duty in his assigned workplace.5 Progressive discipline is only mentioned when Dr. Scaggs' letter comments on the removal of a progressive discipline form from the Respondent's personnel file because Respondent was not given a copy of it at the September 6, 1996, conference. Therefore, the October 23-25, 1996, suspension was Respondent's first discipline other than counseling. On November 18, 1996, Respondent was assigned to light duty (such as dusting) in B wing and scheduled from 2:30 p.m. to 11:00 p.m. The accounts of Respondent, the Assistant Principal, and James Williams concur that when Respondent came on duty he spent about ten minutes talking to James Williams who was supposed to be raking outside B wing. Respondent had no raking duties at that time, due to his medical restrictions. The Assistant Principal asked Respondent what he was doing out of his assigned work area on November 18, 1996, and asked him to go to his assigned indoor work area. At that time, Respondent did not tell the Assistant Principal that he was asking James Williams' advice about cleaning up chemicals in his area, which was the reason Respondent offered at formal hearing for being out of his assigned work area on November 18, 1996. By Respondent's, the Assistant Principal's, and James Williams' accounts, Respondent also did not immediately obey the Assistant Principal's directive. Instead, he continued talking to James Williams another 2-3 minutes and briefly spoke with Dean Byrd before following the Assistant Principal's instructions to go back to work on B wing. On November 25 or 26, 1996, Respondent was working the evening shift behind Mark Lee who did the heaviest duties while Respondent was doing light duty. Respondent went to the restroom and to get lightbulbs. That night, the Assistant Principal returned to campus shortly after 7:00 p.m. due to his daughter's volleyball game. He also walked through the school to see what was going on. He saw other custodians but not Respondent. He saw Respondent across courts and corridors twice, but they did not meet. When he finally located Respondent, Respondent did not at first give a clear answer where he had been. Then Respondent said he had been helping Mark Lee. The Assistant Principal went to speak to Mark Lee and closed the door behind him. There are three versions of what happened next, related by the Assistant Principal, Respondent, and Mark Lee, respectively. The best reconciliation of the three versions is that Respondent opened the door. Thereafter, a sort of tug of war ensued with the Assistant Principal repeatedly closing the door, insisting that he had a right to a private conversation with another employee, and Respondent repeatedly opening the door, insisting he had a right to hear any conversation about himself. This altercation ceased only when the Assistant Principal gave Respondent a direct order to leave the door closed. Respondent obeyed the oral order. When the Assistant Principal exited the room, Respondent asked him why he was harassing Respondent. Respondent then followed the Assistant Principal down the hallway, accusing him of harassing him. The Assistant Principal wrote up his version of the entire incident on November 26, 1996.6 Within a short time, Respondent announced to Mark Lee and Alexander Bradley that his neck hurt and his old injury had been aggravated by the Assistant Principal snatching the door away from him.7 Respondent next went to the Assistant Principal's office. The Assistant Principal searched for workers' compensation Notice of Accident forms but did not find any. He refused to authorize emergency treatment under the Workers' Compensation Act as a result of the incident with the door, because he viewed Respondent's behavior as insubordination and as not job related. He told Respondent to use his own insurance if he felt he needed emergency treatment. Respondent sought treatment. Respondent was put on three days' bed rest which coincided with the Thanksgiving holiday weekend. Respondent returned to work the Monday following the holiday weekend. On December 19, 1996, the Assistant Principal attempted to deliver to Respondent the mandatory notice of conference form letter, for a scheduled conference the next day. The Respondent walked away, thereby signaling his refusal to sign to acknowledge receipt of the notice. The Assistant Principal asked Respondent to wait there while he went to A wing, about 20 yards away, to get Alexander Bradley to be a witness to the delivery of the form. The Respondent did not wait but continued downstairs and crossed into the administration building. The Assistant Principal followed, requesting that Respondent sign the form. Principal Childs, coming out of her office, was in front of Respondent. The Assistant Principal, following behind, called out to Ms. Childs to ask the Respondent to stop to sign the notice. Only when Principal Childs asked Respondent to sign the form did he do so. She explained he must sign the form and the meeting would be rescheduled to accommodate his union representative. Respondent's defense to the foregoing incident was that he wanted to telephone his union representative to be sure she would be available the next day for a conference since that would be the day before a holiday. This explanation is not credible in light of Respondent being the on-site union representative and having been through conferences for the record before. With his familiarity with the procedures, he must have known when he walked away from the Assistant Principal that his signature would only acknowledge receipt of the notice and that the progressive discipline conference would have to be rescheduled to accommodate his union representative. Moreover, prior to this date, Respondent's union representative had explained to Respondent, in Ms. Child's presence, that Respondent's assertion that he had to call his union representative even before he signed accepting a notice was insufficient and that he must contact his union representative on his own time. The conference scheduled for December 20, 1996, did not take place because Respondent's union representative was, in fact, not available. It was rescheduled after the winter holidays, on January 7, 1997. The conference on January 7, 1997, was a progressive discipline meeting. Present were the Respondent, his union representative, the Principal, and the Assistant Principal. The incidents of November 18 and 26 and December 19, 1996, were discussed with the Respondent. The conclusion of the Principal and Assistant Principal was that the behaviors of the Respondent were unacceptable because he continued to show disrespect to the supervisor's authority. He was cited for being out of his assigned work area on November 18, 1996; for insubordination on November 26, 1996; and for refusing to obey a supervisor's direct order on December 19, 1996. As discipline the Principal imposed a two-day suspension of the Respondent without pay for January 15-16, 1997. On January 17, 1997, Bruce A. Mueller, OTR/L.CRT. of Rehab Solutions in Gainesville wrote to Gary Newcomer, M.D., that based on his evaluation, the Respondent was then able to work at the "light-medium" physical demand level for an 8-hour day. Mr. Mueller stated that the Respondent should avoid shoulder height and above activities, but he could do shoulder and overhead work on an occasional basis. On January 23, 1997, after required notice, the Assistant Principal gave Respondent an interim evaluation of his job performance. The Respondent was rated "Satisfactory" in the areas of Quality of Work and Appearance and Grooming; "Needs Improvement" in the areas of Productivity, Attendance and Punctuality, and Use of Time; "Not Satisfactory" in the areas of Responsibility and Dependability, Cooperation, Initiative, Personal Relationships, and Acceptance of Constructive Criticism. Overall Performance was rated "Not Satisfactory". The Respondent indicated in the meeting and by correspondence on February 5, 1997, that he did not agree with the evaluation. The plan for improving performance was set out in the following memo from the Assistant Principal: In order to improve overall performance David Mosley will receive directions from Albert Williams [Head Custodian] concerning his productivity, use of time and initiative. His performance as it relates to cooperation, personal relationships, i.e. as it relates to his supervisor, and acceptance of constructive criticism of his supervisor or head custodian can be improved by learning to work cooperatively with John Williams [Assistant Principal]. Efforts will be made to inform him when his behavior is not reflective of the appropriate employee-supervisor relationship. The custodial schedule changes that Respondent received before the interim evaluation directed him to follow the directions of the Head Custodian, Albert Williams. When Respondent asked Albert Williams whether the duty was appropriate under Respondent's medical restrictions, he referred Respondent to the Assistant Principal for clarification. The plan for improvement did not indicate any change in that procedure. On January 29, 1997, the Respondent visited Gary Newcomer, M.D., at Alliance Occupational Medicine in Gainesville. Dr. Newcomer issued a duty status report on that date, indicating that the Respondent had reached maximum medical improvement, and that the "light-medium" restriction was in place, and included a checklist of the activities and weights which the Respondent could operate. The Respondent had been assigned to "light duty" and his hours had been 2:30 to 11:00 p.m. On January 24, 1997, the Assistant Principal had issued a ten-day notice of schedule change to Respondent, requiring him to switch to 4:30 p.m. to 1:00 a.m., effective February 7, 1997, and that Respondent was to assume new duties of locking gates and checking the gym area after students returned from various late events. Respondent communicated with Synester Jones, Assistant Superintendent of Human Resources, and an old family friend, John Dukes, Jr., Assistant Superintendent of Student Support Services, asking them to intervene in what he believed to be harassment by the Assistant Principal. On January 30, 1997, Respondent went to Gainesville High School's main office and sought an interview with Principal Childs. When her secretary told him she was in conference, he asked to wait. While the Respondent was in the main office, the Assistant Principal requested that he return to his work area, the top of B Wing. The Respondent left the office and went around the corner. The Assistant Principal then went into a meeting with administrators Dr. Arnold and Mr. Bishop. The Respondent returned and stood at the reception counter. The Assistant Principal went out and again requested that he go to his work area. The Respondent said that he wanted to speak to the Principal. The Assistant Principal told the Respondent the Principal was busy and that he could make an appointment with her later. The Respondent then asked to speak to Dr. Arnold. Dr. Arnold told him she was busy at the time. The Respondent then asked to speak to Mr. Bishop. Mr. Bishop asked the Respondent if he could go to work. The Respondent replied he could. Mr. Bishop said, "You need to go to it." Only at that point did the Respondent leave to go to his work area. Respondent inquired aloud why no one would speak to him. Respondent's behavior at this time clearly evidenced that he would accept direction from other superiors but not his direct supervisor, the Assistant Principal. The custodians had been instructed that if they intended to leave work during their shift, they must first check with either Albert Williams, the Head Custodian, or the Assistant Principal. On January 30, 1997, Alexander Bradley, the Lead Worker, informed the Assistant Principal that the Respondent had left work, saying he was ill. The Respondent had clocked out at 3:27 p.m. but had not first checked with either the Head Custodian or the Assistant Principal. Upon proper notice, on January 31, 1997, a disciplinary conference was held to discuss the behavior of the Respondent on January 30. Present were the Respondent; his union representative; Dr. Arnold; the Assistant Principal; and the Principal. The concern was the unwillingness of the Respondent to respond to a request by the Assistant Principal in a cooperative and timely manner. The Principal and Assistant Principal imposed a two-day suspension of the Respondent without pay, February 5-6, 1997, for insubordination, referencing Respondent's willingness to take directions from Dr. Arnold and Mr. Bishop, but not his own supervisor. Nothing was said about security problems.8 In February 1997, the school received an updated report from the Respondent's doctor indicating his work capacities. A few days prior to February 19, 1997, the Assistant Principal revised the Respondent's written work schedule to reflect the doctor's latest report. On February 18 or 19, 1997, Respondent went to see Principal Childs to complain because his schedule was being changed so frequently. He complained that the new schedule called for him to sweep or mop and that sweeping and mopping aggravated his shoulder. Consequently, he was not required to mop or sweep that day. The Principal agreed to have the Assistant Principal review Respondent's restrictions. After consulting medical records and risk management, the Assistant Principal did not further alter the duties assigned Respondent. The Principal, the Assistant Principal, and Alexander Bradley went through the schedule with the Respondent to be sure he understood it. The next day, the Respondent again stated to the Lead Worker, Alexander Bradley, that he did not understand the custodial duties to which he was then assigned. Mr. Bradley informed the Assistant Principal, who then went to the Respondent's work area to explain the schedule to the Respondent. The Assistant Principal asked what Respondent did not understand. Respondent's reply was that he did not understand any of it. Clearly, Respondent was not being entirely accurate but was once more objecting to mopping and sweeping each day. However, his words, tone, and the context of his reply was flippant and disrespectful to his supervisor. The Assistant Principal chose to take the Respondent's reply literally and asked what specific duties Respondent did not understand. Respondent stated he did not want to discuss it with the Assistant Principal, and the Assistant Principal persisted in taking Respondent on a walk-through of his area and describing in minutiae each duty Respondent was expected to perform. This was not just mopping but dusting desks, chalkboards, and computers, and scrubbing sinks. The Respondent asked to have a neutral person present. The Assistant Principal stated the walk-through was not discipline requiring a union representative and that he wanted to proceed. The Respondent asked to go to the restroom. The Assistant Principal asked Mr. Bradley to go with Respondent so that Respondent would not leave the building. Respondent returned and, as the three men walked along the hall, Respondent stopped a student friend of his who was still on campus and asked him to telephone Respondent's wife and ask her to call Assistant Superintendent Dukes for him. The Assistant Principal told the student to move along and asked Respondent not to involve the students. Respondent repeated this situation with another student who was both Respondent's nephew and godson, and the Assistant Principal threatened Respondent with an insubordination charge. Respondent threatened to go to others about what he perceived as harassment. The Assistant Principal asked, "Are you threatening me?" Respondent responded, "You can take it as you want to, but it's not over yet." The Assistant Principal was called away and, as a result, Respondent and Mr. Bradley were briefly left alone. They got into a verbal dispute when Respondent accused Mr. Bradley of siding with the Assistant Principal. However, Mr. Bradley's testimony regarding Respondent's use of profanity to him is utterly incredible.9 When the Assistant Principal returned, he tried to continue walking the Respondent through his duties. The Respondent tried to walk ahead or even leave on occasion and had to be ordered by the Assistant Principal to wait or stay. Then, as the others would proceed along, the Respondent would not move and had to be ordered by the Assistant Principal to come with them. A verbal dispute arose over this and escalated into career threats on both sides. Finally, the Assistant Principal stated there was no sense in going through the rest of the school rooms, but he reiterated he wanted the work done that night. Respondent said he was not feeling too good. The Assistant Principal told him that if Respondent were going home, to come by his office first. When Respondent got to the office, the Assistant Principal handed him a notice to attend a disciplinary conference the next morning. Respondent signed the paper and left. He checked out at the time clock. On February 21, 1997, the Assistant Principal wrote up the last incident and recommended five days' suspension without pay as a disciplinary action against Respondent. On February 28, 1997, Assistant Superintendent Synester P. Jones met with the Respondent, his union representative, and the staff attorney to discuss the events of February 19-20. The Respondent brought up some issues that needed further exploration, including schedule changes and whether the schedule was outside the Respondent's work restrictions. The Respondent was also given an opportunity to put into writing his version of what had occurred. Following the meeting on February 28, 1997, Ms. Jones investigated the Respondent's work schedule and his assigned duties, and determined that the proposed work schedule was not outside his current medical restrictions. For example, the Respondent was not to do constant mopping, so his schedule had been arranged for mopping only the restrooms on one floor of B wing each day. By all professional health care accounts, Respondent's minimum physical functioning would permit him to mop 33 percent of his work day; lift 35 pounds occasionally; lift 15 pounds frequently; lift 7 pounds constantly; reach up to 33 percent of his work day; push with a force of 65 pounds occasionally; push with a force of 46 pounds frequently; and push with a force of 21 pounds constantly. On March 11, 1997, a follow-up conference was held with the Respondent. Based on the information she had obtained since February 28, and on the written statement and comments from the Respondent, Ms. Jones recommended to the Superintendent that the Respondent be suspended with pay until the March 18, 1997, meeting of the School Board, when he would be recommended for suspension without pay and termination. The Respondent was so informed on March 11, 1997, and the written termination letter was prepared following the meeting and delivered on March 13, 1997. Principal Childs concurred with Assistant Superintendent Jones' recommendation for termination because in each of her conferences with Respondent she had perceived that he had a great deal of difficulty accepting directions and/or following directions given by a legitimate supervisor, the Assistant Principal. She also believed his argumentative, uncooperative, and verbally abusive behavior was inappropriate, disruptive, and dangerous in the workplace, created a hostile work environment, and constituted an ineffective and inefficient use of everyone's time. Respondent presented several witnesses to the effect that he was a good and cooperative worker and two to the effect that the Assistant Principal was more vigilant about checking up on Respondent's work activities than those of any other custodian. However, none of these witnesses had any clear knowledge of changes made in Respondent's schedule and work assignments to accommodate his injury and restrictions, and none of them ever had to direct him as a supervisor.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board terminate Respondent effective upon the dates contained in its termination letter, but only for gross insubordination, misconduct, and overall unsatisfactory job performance. RECOMMENDED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1998.
Findings Of Fact Thomas Sundquist was a student enrolled in North Miami Junior High School, operated by the Petitioner, during the school years 1984-1985 and 1985- 1986. Respondent was a seventh grade student during those two school years. He was the subject of seven independent student case management referral forms initiated by school personnel for aberrant behavior. These included 3-1-85: Defiance of Authority; continuous disruptive behavior; failure to complete assignments; failure to bring assigned- materials; and leaving class without permission. 5-24-85: slapping the face of a female student and fighting with her in the classroom. 2-27-86: Assault on another student. 3-21-86: Late to school on test day; left holding area without permission, banged on classroom doors disturbing testees; and evading security and administrators. 5-29-86: Assault on another student; truancy; and defiance of authority. For the assaults on 2-27-86 and 5-29-86, Respondent was given 5 days outdoor suspension for the first and 10 days for the second, and for his misconduct on 4-29-86, was also suspended for 10 days. Counseling policy at this school calls for automatic counseling by the student's grade counselor as well as by a school administrator in the event of a case management referral and in each case, this policy was followed. Further, in each case referenced above except the first, parent contact was accomplished both verbally and in writing. No improvement was noted at any time. On May 30, 1986, Mr. W.G. Murray, a vice principal at the school, requested progress reports on the Respondent from each of his six teachers. These reports were, for the most part, uniformly uncomplimetary. They were: Science - Ms. Fernandez: "He does not do any work. Is never prepared for class. Is a discipline problem and exhibits unacceptable behavior." Music - Ms. Pena: "He has been absent so much he is very far behind on his instrument,but while in class, his conduct is good." P.E.- Ms. Jardine: Class work "F", conduct "D". Math - Mr. O'Keefe: "Was not seen in class after October 8, 1985. Class work "F", conduct "F". He is very disobedient, insultive [sic], and immature." English - Ms. Weber: " He usually sleeps in class. Occasionally will do a spelling list but is not in class long enough to do anything. His conduct is poor, challenging authority, answering back, bangs on door when not in class, and does not often show up for class." [This teacher indicated the student can do the work if he wants to.] Graphics - Mr. Machado: "Refuses to do any work, disruptive, will not stay in seat, talks out loud, hits and touches other students against their will." Mr. Machado and Ms. Fernandez amplified their written comments by testimony at the hearing and confirmed that he was always late for class, was never prepared when he came, and rarely did any work in class. He would chew gum, try to distract the other students, fail to follow instructions and class and safety rules, and would assault other students without provocation. He would try to hug or touch females or fight with males to the point that some students would leave class and go to the assistant principal's office just to get away from him. Both teachers repeatedly had to stop their classroom teaching, taking time away from other students, to attempt, most often unsuccessfully, to deal with the Respondent. Respondent's final report card for the 1985-1986 school year reflected a final grade of "F" for each of his subjects for the year. Out of 180 school days, he was absent: Science: 101 periods. Music: 97 periods. P.E.: 91 periods. Mathematics: 86 periods. English: 104 periods. Graphics: (second semester only) 65 periods. In the 3rd and 4th grading periods, his "effort" grades were uniformly "3" which signifies "insufficient." In the first two grading periods, he did earn 4 "C's" and 1 "D". His "conduct" grades are mostly "F" with some exceptions in Music, P.E., and, in the first grading period only, English, in which he got a "D" and Industrial Arts, in which he got a "C". All three witnesses who testified for Petitioner were of the opinion that Respondent's lack of interest and disruptive behavior cannot properly be handled within the regular class system where teachers have between 33 and 35 students per class. They do not have the time to devote to him and his behavior takes their attention away from other students whose education suffers thereby. They all agree, however, that in the opportunity school, where classes normally consist of 10 to 15 students, he would benefit from the more personalized attention he would receive and would undoubtedly do better. This seems to be a reasonable analysis of the situation and it is so found. Respondent is definitely not interested in school in the regular classroom setting and his behavior is decidedly disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT: Petitioner enter a Final Order affirming the assignment of Respondent to its Opportunity School Program. DONE and ORDERED this 31st day of October, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of October, 1986. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Ms. Sue Sundquist Stevens 11317 Northeast 11th Place Biscayne Park, Florida 33161 and 14155 West Dixie Highway North Miami, Florida 33161 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301
The Issue The issue in this case is whether there is sufficient "just cause" to warrant termination of Respondent's annual contract of employment with the Monroe County School Board.
Findings Of Fact Based on the Findings of Fact and Burke's prior disciplinary record, the undersigned concludes that Burke's chronic misconduct and series of continuing disciplinary problems on February 23, 2015 ( para. 9o.); May 7, 2015 ( para. 9q.); and May 12, 2015 ( para. 9r.), as well as Burke's performance evaluation from April 9, 2015 ( para. 9t.), permitted the School Board to dispense with the progressive discipline steps under the CBA since immediate and\or stronger action was reasonably necessary under Article V, Section 1B. of the CBA, and "just cause" existed for her termination. Burke's unabated misbehavior, even after several sit- downs and fair and repeated warnings, constituted sufficient legal grounds to permit the School Board to omit or skip steps in the progressive discipline process. See, generally, Quiller v. Duval Cnty. Sch. Bd., 171 So. 3d 745 (Fla. 1st DCA 2015) (concurring opinion, Osterhaus, J.) (The employee's repeated use of profanity and derogatory language, her discipline history, and her failure to modify her conduct warranted skipping steps of the progressive discipline policy.). Quiller was decided the summer of 2015 and provides an analogous set of circumstances. Relevant portions of Judge Osterhaus's concurring opinion are instructive and worth repeating here: By highlighting Ms. Quiller's rhetorical and disciplinary history, the Final Order disputes the Recommended Order's conclusion that "[t]here is no proof that the behavior at issue constitutes [5] 'severe acts of misconduct.'" Though the definition of "more severe acts" in the collective bargaining agreement (CBA) was left undefined, the School Board's human resource officer testified at the hearing that the School Board determines appropriate discipline based on how many times an incident has occurred, who the witnesses are, the severity of the incident, the amount of time that has occurred between incidents, and the employee's willingness to modify his or her behavior. Her testimony continued that "some of the most severe conduct" includes instances when an employee has failed to modify his or her more serious behavior after having been warned. In turn, the School Board's conclusion in this case was that Ms. Quiller's repeated use of profanity and derogatory language, her discipline history, and her failure to modify her conduct warranted skipping step three of the progressive discipline policy. So there wasn't "no proof" that Ms. Quiller's behavior constituted "more severe acts of misconduct" for purposes of the CBA, even if the ALJ thought that her acts weren't particularly severe. Deference is due to the School Board's decision with respect to its personnel decisions. Courts [6] have little room to define what constitutes "more severe acts of misconduct" as against those responsible for running the county's schools. See, e.g., Dep't of Prof. Regulation v. Bernal, 531 So. 2d 967, 968 (Fla. 1988) (giving great discretion to boards to determine discipline). Courts will not substitute their judgment "if valid reasons for the board's order exist in the record and reference is made thereto." Id. at 968. To that end, the School Board's identification of Ms. Quiller's bad language, discipline, and failure to modify her behavior probably supports the departure it took from the ALJ's recommended penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board accept and implement the superintendent's recommendation to terminate Respondent, Sue Burke. DONE AND ENTERED this 12th day of November, 2015, 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 12th day of November, 2015.
