The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2006.
The Issue This matter was referred to the Division of Administrative Hearings by the Florida Commission on Human Relations to conduct a hearing regarding a Petition For Relief from an Unlawful Employment Practice filed by Petitioner against Respondent. The Petition For Relief alleges an unlawful employment practice under the Human Rights Act of 1977 in the form of Petitioner's discharge from employment as a Radio-Teletype Operator in December 1978 due to sexual discrimination. The Respondent answered the Petition and asserted that Petitioner was dismissed for legitimate, non-discriminatory reasons (failure to attain a satisfactory level of job performance) while a probationary employee. The Respondent further asserted that Petitioner had never attained permanent status with the Respondent. At the hearing, the parties completed the filing of a Pre- Hearing Stipulation and Supplement thereto and Petitioner's Amendment thereof, pursuant to an earlier order requiring a pre- hearing stipulation. By stipulation the parties agreed to change the style of this case to reflect the Respondent as shown above instead of the Florida Highway Patrol.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact: Petitioner was hired on April 13, 1978, as a Radio- Teletype Operator for the Miami Station of the Florida Highway Patrol, a division of the Respondent. Petitioner was hired on a provisional status for six months or until he passed the required examination, whichever occurred first. The examination was still being prepared when Petitioner was hired. Petitioner had prior experience as a wrecker dispatcher and in electronics. He had received an Associate of Arts degree in Criminal Justice in December 1977. His wages were $824 per month. Chief Operator S. K. Wallace, a male, was Petitioner's immediate supervisor and trainer. Effective May 1, 1978, Sergeant Gracey, a uniformed member of the Patrol, became Communications Officer for Troop E and was Wallace's supervisor. Captain Garris was the Troop Commander at time of hire. Petitioner identified three females and two males, other than himself and Wallace, who were employed as radio operators at Troop E. One male operator may have been employed by the Department of Transportation. On August 22, 1978, Petitioner passed his Radio-Teletype Operator I examination and received a score of 90. Passing score was 70. By memo of September 25, 1978, Petitioner was advised by Col. Beach that effective August 22, 1978, he was no longer provisional and was probationary for six months as a result of passing the examination. On August 7, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of satisfactory. The employee status was shown as probationary and the rating period was from April 19, 1978, to October 19, 1979, a period of 19 months. The rater was Chief Operator Wallace, who signed the rating on July 11, 1978. On July 20, 1978, Sergeant Gracey wrote a memo to Captain Garris wherein he requested a sixty-day extension of Petitioner's probationary period. Sergeant Gracey stated that he did not feel Petitioner had progressed to a level of competency commensurate with his length of service. The memo mentioned areas of deficiency and stated that Petitioner had been counseled regarding them and informed of the extension request. The memo accompanied the initial evaluation. Captain Garris signed the bottom of the memo, indicating his concurrence and stating that both he and Sergeant Gracey disagreed with the rater (wallace). on September 27, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of conditional. The rating period was from April 13, 1978, to October 13, 1978. Petitioner's performance was rated by Wallace on September 15, 1978, reviewed by Garris, and also initialed by Sergeant Gracey. The rater's comments noted deficiencies in Petitioner's reluctance to apply his knowledge and in always seeking help from others. It also mentioned his slowness. Petitioner checked a box indicating his desire to discuss the rating with his reviewers. Petitioner also spoke with both Captain Garris and Sergeant Gracey about this evaluation. On October 9, 1978, Col. Beach wrote a memo to Petitioner about the conditional evaluation and the Executive Director's approval of the request for extension of probation for three months, from October 13, 1978, through January 12, 1979. This memo also mentioned counseling from Petitioner's immediate supervisor to assist him in improving his performance. Petitioner was the subject of a third evaluation, for the period from September 15, 1978, to November 27, 1978. This rating was by Sergeant Gracey on November 13, 1978. It was reviewed by Captain Carmody who succeeded Captain Garris as the Troop Commander. This evaluation was not signed by Petitioner. Accompanying the third evaluation and referred to therein was correspondence dated December 4, 1978, from Sergeant Gracey constituting the rater's comments. In this memo, Sergeant Gracey recommended Petitioner's termination due to unsatisfactory performance. He indicated a counseling session with Petitioner on or about September 25, 1978, after the initial conditional rating, at which time Petitioner's weaknesses were explained. Sergeant Gracey wrote that he had advised Petitioner that his most serious problem was the inability to obtain information and disseminate it properly and that Petitioner often got information confused, requiring extra supervisory assistance. Sergeant Gracey described counseling for specific errors on October 11, 1978, and November 11, 1978, which mistakes were later repeated. He also mentioned Petitioner's failure to meet deadlines set by Wallace concerning Petitioner's uniform. Sergeant Gracey discussed frequent errors prohibiting Petitioner's assignment for the solitary (midnight) shift and problems with Petitioner's voice quality. Captain Carmody transmitted the second conditional evaluation along with Sergeant Gracey's letter to Col. Beach with the Captain's concurrence. The original submission was dated November 27, 1978, and was re-submitted with all attachments after December 4, 1978. Captain Carmody mentioned therein the counseling Petitioner had received with no appreciable improvement shown. By letter dated December 12, 1978, Petitioner was informed by Col. Beach, with the approval of Chester Blakemore as Executive Director, of his dismissal on December 15, 1978, based on conditional ratings while a probationary employee. The letter stated that since Petitioner lacked permanent status, he had no appeal rights to the Career Service Commission. Petitioner's subsequent attempt at an appeal to the Commission was rejected on that basis. During 1978, Chief Operator Wallace was not a very effective supervisor. For the rating period from September 1, 1977, through September 1, 1978, Wallace was rated conditional. Wallace demonstrated inadequate supervisory techniques, he lacked the respect of his subordinates, he failed to set a good example, and he lacked leadership. In general, Wallace was a weak supervisor. At all times material, Sergeant Gracey was aware of the quality of Wallace's supervision of the radio-teletype operators. During the period from January 1, 1978, to December 31, 1979, the radio-teletype operators employed by the Florida Highway Patrol consisted of 65 male employees and 34 female employees. During the same period there were more females in the applicant pool for radio-teletype operators, both on a statewide basis and in the Miami area. During the period in question there was no pattern of discrimination in favor of female operators or against male operators. When Sergeant Gracey became the Communications Officer on May 1, 1978, he sought to professionalize the operators and procedures. Gracey thought that Chief Operator Wallace was doing a poor job of supervising the operators and for that reason gave Wallace a conditional evaluation. Gracey disagreed with Wallace's initial evaluation of the Petitioner, but Gracey could not change the evaluation because Gracey was not the Petitioner's immediate supervisor. Gracey did, however, write a memo of July 20, 1978, stating his disagreement with Wallace's initial evaluation of the Petitioner, and Gracey also sought an extension of Petitioner's probationary period. Sergeant Gracey counseled with the Petitioner about his job performance on several occasions. In November of 1978 Gracey met with the Petitioner and told him that he (Gracey) was going to recommend that the Petitioner be dismissed. Sergeant Gracey did not direct Chief Operator Wallace to issue the first conditional rating of the Petitioner. Sergeant Gracey did not express a preference for female operators to either Wallace or the Petitioner. The Petitioner was recommended for termination solely because of his failure to achieve a satisfactory level of performance during his probationary period, as extended. The deficiencies in Petitioner's job performance are described in Sergeant Gracey's memo of December 4, 1978. These included the inability to properly disseminate information, that information was often confused, that specific mistakes were counseled but subsequently reoccurred, that the Petitioner failed to adhere to deadlines set by Wallace, and that he required close supervision, could not be left alone in the radio room, and had a nervous and irritating voice quality. Sergeant Gracey recommended the Petitioner's dismissal for the reasons summarized immediately above. The recommendation was approved by Gracey's superiors and the Petitioner was dismissed from his employment with the Florida Highway Patrol effective December 15, 1978.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Robert Hardison, Jr. DONE AND ORDERED this 28th day of August, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986. COPIES FURNISHED: Mark A. Cullen, Esquire CULLEN 6 SZYMONIAK, P.A. 1030 Lake Avenue Lake Worth, Florida 33460 Judson M. Chapman Assistant General Counsel Department of Highway Safety and Motor vehicles Neil Kirkman Building Tallahassee, Florida 32301 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. In making these rulings and in finding the facts in this case, I have in many instances had to resolve direct conflicts in the testimony of opposing witnesses. In resolving conflicts between the testimony of the Petitioner and the testimony of witnesses called by the Respondent, I have generally accepted the testimony of the latter as more persuasive. In this regard, particular consideration has been given to the fact that some of the Petitioner's testimony is inconsistent and illogical. Consideration has also been given to the Petitioner's obvious interest in the outcome of the case. Yet another significant factor in weighing the conflicting testimony is that the testimony of Respondent's witnesses tended to be logical, corroborated by the documentary evidence, and convincing. Rulings on findings proposed by Petitioner Paragraph 1: Accepted as introductory material, but not as finding of fact. Paragraph 2: Accepted. Paragraph 3: Accepted with additional findings for accuracy. Paragraph 4: Accepted. Paragraphs 5 and 6: Accepted in substance with additional details in the interest of accuracy and clarity. Paragraph 7: Accepted. Paragraphs 8 and 9: Rejected as contrary to the greater weight of the evidence. Paragraph 10: Accepted. Paragraphs 11 and 12: Accepted in substance. Paragraph 13: First sentence of this paragraph rejected as not supported by persuasive competent substantial evidence. Remainder of paragraph rejected as constituting argument. Paragraph 14: Accepted. Paragraph 15: Rejected as contrary to the greater weight of the evidence. Paragraph 16: Rejected as contrary to the greater weight of the evidence. Although the statements the Petitioner attributes to Wallace were not specifically denied (they could not be denied by Wallace because he died several years before the hearing), they are inconsistent with other evidence and it is most unlikely that they were uttered or, if uttered, that they were uttered seriously. Paragraph 17: Consistent with the evidence, but rejected as irrelevant. Paragraph 18: First sentence of this paragraph is accepted. The remainder is rejected as contrary to the greater weight of the evidence. Paragraph 19: Accepted. Paragraph 20: Rejected as incorrect characterization of the evidence. Paragraphs 21 and 22: Consistent with the evidence but rejected as irrelevant. Rulings on findings proposed by Respondent Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted. Paragraph 8: Rejected as irrelevant. The testimony about the statement attributed to the deceased Mr. Wallace is irrelevant both because it is unlikely that the statement was uttered, and even if uttered, it was erroneous. Paragraphs 9 and 10: Accepted. Paragraph 11: First sentence rejected because Petitioner's testimony in this regard is not persuasive. Second sentence is accepted in substance. Paragraphs 12, 13, 14, 15, and 16: Accepted. Paragraphs 17 and 18: Consistent with the evidence, but rejected as irrelevant. Paragraph 19: Rejected as unnecessary summary of testimony, most of which testimony is rejected as unpersuasive or as contrary to the greater weight of the evidence. Paragraph 20: Rejected for the most part as constituting a description of part of the evidence rather than a proposed finding. Accepted in part as a finding that Mr. Wallace was not a very effective supervisor at the time material to this case. Paragraphs 21, 22, 23, 24, 25, 26, and 27: Accepted in substance, although as stated these paragraphs constitute descriptions of the testimony rather than proposed findings of fact. It would greatly facilitate the efforts of hearing officers, agency heads, and courts if all proposed findings of fact were written in a form which constituted the ultimate finding sought by the proposing party. Proposed findings which constitute nothing more than summaries of the testimony pro and con are truly not very helpful to th~se who must recommend, decide, and review cases under Section 120.57(1), Florida Statutes.
Findings Of Fact The Respondent, Lesley A. Baker, was suspended from his employment as a teacher on continuing contract with the Orange County School Board on February 5, 1981. The Respondent was charged with misconduct in office and gross insubordination for administering corporal punishment without following the guidelines established by state law, school board policy, local school policies and the specific instructions of his principal. At the time of his suspension, Respondent Baker was a fifth grade teacher at Blankner Elementary School. Edd W. Taylor, is principal of Blankner Elementary School and has been in that position since the Respondent came to Blankner three years ago. Mr. Taylor has been a principal for over twenty years and a teacher for twenty eight, all of which occurred at the elementary school level. As principal of Blankner Elementary, Mr. Taylor maintains a copy of all school board policies and rules, including those relating to the administration of corporal punishment. The rules and policies consist of three bound volumes which are kept in the principal's office where they are available to teachers or any other persons who need to refer to them. Additionally in his capacity as principal Mr. Taylor adopted guidelines for the use of corporal punishment at Blankner Elementary which were included in a faculty handbook provided to each teacher prior to the school year. The handbook was reviewed with the teachers at the beginning of the 1980-81 school year and special emphasis was given to the policies found in the handbook concerning corporal punishment. Respondent Baker was provided with a copy of the faculty handbook which he read including that portion relating to corporal punishment. The Blankner Elementary policies established by Mr. Taylor provide that only the principal or the principal's representative may administer corporal punishment. The only representative designated to administer corporal punishment in the principal's absence is the sixth grade representative. The Respondent Baker is not the sixth grade representative and was never authorized by the principal to administer corporal punishment. On November 21, 1980, Mr. Taylor delivered a written note to the Respondent which stated: "As you know, for other than CP [corporal punishment] or suspension offenses, you handle most of room discipline since this is your responsibility. See me on this note. EWT" (Petitioner's Exhibit 5) 2/ The Respondent has been employed as a teacher in the Orange County School District since 1964. Despite being employed by the school system for a substantial length of time, the Respondent was not aware of the Orange County School Board's policies and requirements concerning corporal punishment at the time of the incidents in question. Although the Respondent read the Blankner Elementary faculty handbook, he was unaware of any policies or requirements in the handbook concerning the administration of corporal punishment. Similarly, the Respondent was unfamiliar with the Florida Statutes relating to corporal punishment. In response to inquiries from the Board attorney, Respondent's understanding of corporal punishment policies and requirements were stated as follows: MR. BOWEN: Were you aware of any require- ments with respect to the administration of corporal punishment? RESPONDENT: Yes. MR. BOWEN: What requirements were you aware of? RESPONDENT: Mutilation. MR. BOWEN: Mutilation? What do you mean by that? RESPONDENT: Where you just beat up on a kid. MR. BOWEN: What about that? RESPONDENT: That's not right. MR. BOWEN: That's not right? Are there any other requirements that you're aware of other than that? RESPONDENT: There are none that I know of. MR. BOWEN: As far as you know, the only requirements of you with respect to the administration of corporal punishment is that you can't mutilate the kids? RESPONDENT: As far as I know. (Petitioner's Exhibit 5 at 5-6) In October, 1980, the Respondent supervised a student field trip to the John Young Planetarium. During the bus ride to the Planetarium, the students were advised by the Respondent to be quiet. Two fifth grade students, Chris Yavanovich and Richard Hamilton, attracted the Respondent's attention by talking and pointing to a passing car. The Respondent approached the two boys and struck Richard Hamilton on the arm two or three times with his fist for disobeying his instructions. 3/ In his classroom the Respondent kept a wooden dowel approximately one yard long and one-half inch in diameter which was used primarily as a pointer. On at least two occasions, however, the Respondent used the dowel to discipline students in his class. When the dowel was used for this purpose, no other adult was present to act as a witness and the discipline was administered without authorization from the principal. On February 4, 1981, the Respondent Baker was standing outside the boys' restroom. A group of boys had gathered in the restroom prior to going to lunch. The students in the restroom were shouting, screaming and being generally disruptive which prompted the Respondent to enter the restroom to restore order. Once inside the restroom, the Respondent observed a group of boys yelling, pushing, swinging on bars and playing with lights. When the students did not respond to his commands to settle down, the Respondent removed his belt and attempted to strike each of the students as they exited from the restroom. At least nine students were struck by the Respondent between one and three times. Three of the boys were struck with sufficient force to leave marks on their legs which were visible the following day. None of the bruises or marks were serious enough to require any of the students to miss school or consult a physician. 4/ Once outside the restroom one of the students who had been struck, Chris Yavanovich, called the Respondent a "bitch". The comment was overheard by another teacher who reported it to the Respondent as he left the restroom. The Respondent grabbed the student by the upper right arm and took him to the principal. The students' upper right arm was grabbed with sufficient force to leave bruises or finger marks which were visible the afternoon of the incident. The Respondent denied grabbing Chris Yavanovich by the upper arm. The Respondent asserted that he grabbed the boy by the wrist and any injury to the upper arm occurred either in the restroom or at some other time. While the incident in the restroom was occurring, the principal was standing in a corridor approximately 50 feet from the restroom. After discussing the incident with Chris Yavanovich, the principal went to see the Respondent in his classroom. Outside the classroom the principal overheard the Respondent tell his class that ". . . next time, it may be three or four licks from him." (Vol. I - TR-21). The Respondent denied making this comment to his class and could not recall the principal coming to his room at that time. The principal of Blankner Elementary, Mr. Taylor, stated that based upon his training and experience in the elementary schools, there was no justification for the Respondent's actions. Mr. Taylor does not want the Respondent to return to Blankner Elementary or any other school in the Orange County School District and concurs with the Superintendent's recommendation regarding termination. 5/ The principal's views are also shared by the area administrator, Lola Brady, an individual with forty years experience in the school system. Superintendent Schott testified that in his twenty years in education, he had never encountered a situation in which a teacher administered corporal punishment randomly with a belt and without authorization from a principal or other person in charge. The Superintendent regards the restroom incident as an inexcusable and unjustified assault upon the involved students which is too serious to justify any penalty less than termination. In the Superintendent's opinion, the correct approach to the problem would have been to order the group of boys to be quiet and refer those who continued to misbehave to the principal who was nearby. The Respondent proffered copies of reports and records relative to a number of employees of the Orange County School Board (Respondent's Exhibits 3- 10). 6/ The proffered exhibits consist of all of the files maintained in the Office of the Superintendent concerning complaints of alleged misuse of corporal punishment by teachers and the disposition of the same. The proffered exhibits reflect situations in which employees were given written reprimands or allowed to resign following investigations by administrators concerning the alleged misuse of corporal punishment. None of the factual situations outlined in the proffered exhibits is substantially similar to the instant case. In the two cases in which teachers resigned, the students who were struck suffered injuries serious enough to consult physicians. The School Board of Orange County does not have a policy, written or verbal, that specifies when a person will be reprimanded or terminated for failing to follow procedures concerning corporal punishment. The Respondent Baker has been employed as a teacher for approximately twenty years and is certified to teach elementary education, the educably mentally retarded and driver's education. He has a good reputation in the community and is active in Little League, Cub and Boy Scouts and church activities. During his tenure at Blankner Elementary, the Respondent received satisfactory evaluations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found to have committed misconduct in office as alleged in the notice of charges dated February 9, 1981 and May 29, 1981 and that as a consequence of such a finding, his employment with the Orange County School Board be terminated. DONE and ORDERED this 16th day of September 1981, in Tallahassee, Florida. SHARYN L. SMITH, 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 16th day of September, 1981.
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed against the Respondent are true, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility for certification of correctional officers within the State of Florida. Respondent holds Correctional Certificate No. 200857, issued to her by Petitioner. Shortly after 2:00 a.m., on January 8, 2005, Corporal Andrew Markham of the City of Sebring Police Department was dispatched to the scene of a reported traffic crash at the intersection of Center Street and Northeast Lakeview Drive in Sebring, Florida. Corporal Markham found no vehicles in the intersection or any evidence of a crash there. Adjacent to the intersection, in the parking lot of the Sebring Public Library, Corporal Markham saw a car with its brake lights illuminated. He approached the car to determine whether the occupants could provide any information about the reported traffic accident. Corporal Markham observed that the front of the car was damaged from its collision with a low barrier wall that bordered the parking lot. The windshield was also damaged from what Corporal Markham concluded was the impact of the occupants' heads with the windshield when the car hit the barrier. When Corporal Markham approached the car, he saw Respondent exit the driver's seat and begin to walk away. Corporal Markham stopped Respondent to speak with her. Respondent had blood on her face, as did the other occupant of the car. At the time of the incident, Respondent denied being the driver of the car. At the hearing, Respondent admitted that she was the driver. During his conversation with Respondent at the scene, Corporal Markham smelled the odor of alcohol on Respondent, noted that she was unsteady, and that her eyes were red. When Corporal Markham asked Respondent to take field sobriety tests, she continued to insist that she was not the driver of the car and would not take the tests. Based on his observations at the scene, his training, and his 13 years of experience as a police officer, Corporal Markham believed Respondent was under the influence of alcoholic beverages to the extent that her normal faculties were impaired. Therefore, he arrested Respondent for the offense of driving under the influence of alcohol. Corporal Markham first transported Respondent to the Highlands County Medical Center to receive treatment for her injury. At the Medical Center, Respondent refused medical treatment, and Corporal Markham transported her to the Highlands County Jail. At the jail, Respondent was taken to the area where breath tests are conducted. Corporal Markham read Respondent the "Implied Consent" that informed her that if she refused to take the test, she could lose her driving privilege for up to one year. Respondent refused to take a breath test at the jail. Deputy Loran Danielson of the Highlands County Sheriff's Office was the officer on duty to conduct the breath tests at the jail. When Deputy Danielson met Respondent, he noted that her breath smelled strongly of alcohol, her eyes were bloodshot, her speech was slurred, and she was unsteady on her feet. Based on his observations of Respondent, his training, and his 10 years of experience as a Deputy Sheriff, Deputy Danielson was of the opinion that Respondent was under the influence of alcoholic beverages to the extent that her normal faculties were impaired. During the time that Deputy Danielson talked to Respondent, she told him that she had consumed "many" drinks, and if she took the breath test, it would show "I'm drunk." On September 27, 2004, less than four months before the incident at issue in this case, Petitioner issued Respondent a Letter of Acknowledgement for an earlier driving under the influence (DUI) violation by Respondent. At the hearing, Respondent admitted that she had "a few drinks" with friends at a bar just prior to her arrest, but she denied that she was intoxicated. Respondent said the crash occurred because she had taken her eyes off the road to speak to passengers in the back seat. Respondent said she refused to take the field sobriety tests or the breath test at the jail because she was scared. Respondent explained that one term of her probation for the prior DUI conviction was that she was not to drink alcohol. Respondent expressed remorse for her behavior on January 8, 2005, and claimed she has stopped drinking alcohol. Respondent stated that her career as a correctional officer is very important to her, and she requested another opportunity to prove she is a responsible person and capable correctional officer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding that Respondent Tena D. Grant failed to demonstrate good moral character as required by Subsection 943.13(7), Florida Statutes, and ordering that her certification as a correctional officer be revoked. DONE AND ENTERED this 4th day of April, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 4th day of April, 2006.
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
The Issue This case involves the issue of whether the Respondent demonstrated lack of good moral character and made a false representation on an application for employment with the City of Tampa Police Department when he failed to disclose several prior places of employment. By an amended notice of hearing, dated September 15, 1983, Respondent was given due notice of the formal hearing held on October 28, 1983. By a pleading addressed to the undersigned Hearing Officer and dated October 22, 1983, the Respondent acknowledged receipt of the notice of hearing and stated that he would not be attending the hearing. Respondent stated no proper grounds for the granting of a continuance and no continuance was requested in accordance with the Model Rules of Procedure. At the formal hearing, the Petitioner called as witnesses Carl A. Kaluhiokalani, R. S. Noblitt, Kenneth H. Taylor, Oscar Crosby, Curtis Lane, Elmer Barry, Sue Campbell. The Petitioner offered and had admitted into evidence four exhibits. The Respondent did not appear and did not present evidence on his behalf.
Findings Of Fact At all times material to these proceedings, Respondent has held law enforcement officer certificate No. 02-026704. This certificate has been in an inactive status since May 14, 1981. On June 11, 1980, the Respondent applied for employment with the Tampa Police Department. On September 15, 1980, the Respondent became employed by the Tampa Police Department. On May 14, 1981, The Respondent was terminated for failure to disclose material information on his employment application. The Respondent had previously worked at the Central Garage, City of Tampa, for a short period of time in 1973. He was terminated because of being lazy and uncooperative and because he was found sleeping in the back of a police car while on duty. This employment was not disclosed on his June 11, 1980, application to the Tampa Police Department. In 1974, the Respondent had first applied for employment with the Tampa Police Department and was not hired because of information that he had previously been terminated from another city department because of being lazy and uncooperative. The Respondent was employed by Barry Investigations in April 1979, and was employed by J. C. Penney from September 12, 1978, through January 28, 1979. Neither of these employers was disclosed on the employment application of June 11, 1980. The application form requests the applicant's entire employment record. The application form asks for the applicant's employment record without limitation as to the time period covered. The form states that the applicant is to "REQUEST ADDITIONAL SHEETS IF NEEDED," to list more than the five employers for which space is provided on the standard form.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is, RECOMMENDED: That a final order be entered finding the Respondent guilty of a violation of Section 943.145(3)(b), Florida Statutes and suspending his law enforcement officer certificate for a period of two years. DONE AND ORDERED this 5 day of June 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June 1984. COPIES FURNISHED: Susan Tully, Esquire Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301 Franklin P. Taylor Robert R. Dempsey, Executive Director P.O. Box 2136 Department of Law Enforcement Lutz, Florida 33549 Post Office Box 1489 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement Post office Box 1489 Tallahassee, Florida 32302 Daryl G. McLaughlin, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The basic issues in this case are whether the Respondent committed the violations alleged in the Petitioner’s Notice of Specific Charges and, if so, whether such violations warrant a ten-day suspension from work.
Findings Of Fact The Respondent, Rafael M. Mejia, is presently employed as a police officer by the School Board. He has been so employed at all times material to this case, having been first employed in that position on or about January 27, 1999. As a general matter, the Respondent is regarded by his immediate supervisors (his supervising sergeant, lieutenant, and captain) as being a good policeman. During the course of his present employment he has received a number of commendations. On at least one occasion, he was selected as “officer-of-the- month.” Even though the Respondent generally does good police work, his disciplinary record is not without blemish. On June 5, 2001, a conference-for-the-record (CFR) was held to address the Respondent’s non-compliance with School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, School Police Departmental policies, the Respondent’s failure to attend scheduled court dates, and the Respondent’s pattern of sick leave abuse. As a result of the June 5, 2001, CFR referenced above, the Respondent was issued a verbal warning and a written reprimand, and was directed as follows: You are directed to adhere to all departmental rules and directives. You are directed to follow all lawful orders given to you by one with proper authority. The Respondent was further advised in writing as follows: You were directed to follow the proper procedures by notifying the clerk of the court when unable to attend court. You were also verbally warned concerning your abuse of sick leave. You are expected to conduct yourself professionally with a positive demeanor that is consistent with the position of police officer. On July 11, 2002, the Respondent was involved in a motor vehicle accident while on duty. He was injured in the accident and was treated at the scene of the accident by fire rescue personnel who then took him to the emergency room at Baptist Hospital. At Baptist Hospital the Respondent was examined, evaluated, and treated by a physician’s assistant named Christopher Pecori. Mr. Pecori concluded that the Respondent had contusions to his chest and to his right forefinger. Mr. Pecori also concluded that the Respondent was experiencing mild to moderate pain at that time. Mr. Pecori wrote prescriptions for small amounts of several pain medicines, enough to control pain for four or five days. Mr. Pecori advised the Respondent that the Respondent did not require hospitalization, but that the Respondent should seek follow-up care by a physician the next day. Mr. Pecori also arranged for a note entitled “Return to Work Instructions” to be prepared. That note included the opinion that the Respondent “should be able to return to work in 4-5 days.” That note was supposed to be included in the paperwork that was given to the Respondent when he was discharged from the emergency room.3 Mr. Pecori's opinion that the Respondent “should be able to return to work in 4-5 days," was an estimate, perhaps best described as an experience-based approximation. Mr. Pecori could not state with any certainty that it would take at least four days for the Respondent to be able to return to work. Similarly, he could not state with any certainty that by the fifth day the Respondent would surely be able to return to work. Two of the Respondent’s supervisors, Acting Lieutenant Juan Seabolt and Acting Sergeant Howard Giraldo, responded to the scene of the Respondent’s accident on July 11, 2002, and saw the Respondent lying on the ground being attended by fire rescue personnel. Seabolt then went to the hospital for a few minutes while the Respondent was being treated in the emergency department. Giraldo also went to the emergency department at Baptist Hospital and stayed there for a couple of hours. Later that evening Giraldo called the Respondent at home to see how he was doing. Based on their observations of the Respondent at the scene of the accident and at the emergency room, Acting Lieutenant Seabolt and Acting Sergeant Giraldo both knew that the Respondent had been injured in the line of duty and they both expected the Respondent would miss several days of work while recuperating from his injuries. As far as these two supervisors were concerned, it was not necessary for the Respondent to call in each day to remind them that he was still recuperating from his injuries, because they already had a pretty good idea of what his circumstances were, and it was primarily just a matter of waiting until the Respondent felt good enough to return to work. On more than one occasion after the accident, Acting Sergeant Giraldo called the Respondent’s house by telephone to inquire as to how the Respondent was doing. On those occasions Acting Sergeant Giraldo spoke to the Respondent’s wife and was advised by her of the Respondent’s condition. From July 11, 2002, until July 22, 2002, the Respondent recuperated at home from his injuries. During that time period he did not call his supervisors to advise them of his condition because they were aware of his basic condition and Acting Sergeant Giraldo was calling the Respondent from time-to- time. The Respondent did not think he needed to call in each day. Similarly, his immediate supervisors saw no need for daily calls and his immediate supervisors were not concerned about the Respondent’s failure to call in daily.4 About ten days after the Respondent’s accident, top management in the police department began to make inquiries about the Respondent’s status. Major Claudia Milton called Lieutenant Leon Sczepanski, who at that time was Acting Captain for Stations 5 and 6, and asked him to advise her of the Respondent’s current status. After some difficulty locating the Respondent’s residence, on July 22, 2002, a note was left at the Respondent’s residence asking him to contact Lieutenant Leon Sczepanski. Later that same day, the Respondent contacted Sczepanski and asked what Sczepanski needed to see him about. Acting Captain Sczepanski asked the Respondent what his status was. The Respondent stated that he was out on workers’ compensation. However, when Sczepanski asked the Respondent if he had consulted with the workers’ compensation doctor, the Respondent stated that he had not. Sczepanski told the Respondent that it was the Respondent’s responsibility to contact the Office of Risk Management in order to get an appointment to see a workers’ compensation doctor. During the morning of the next day the Respondent was seen by an approved workers' compensation doctor and sometime near noon on July 23, 2002, the Respondent reported to Acting Captain Sczepanski and gave Sczepanski a note from the workers’ compensation doctor stating that the Respondent was fit to return to duty with some work limitations. On or about July 24, 2002, the Respondent failed to report to work. Sczepanski telephoned the Respondent to inquire why he had failed to report to work. The Respondent indicated that since the workers’ compensation doctor’s note stated that the Respondent was not to lift anything over ten pounds, the Respondent could not return to work. Sczepanski informed the Respondent that the workers’ compensation note cleared the Respondent to return to work on light-duty status, and instructed the Respondent to promptly report to work. In the meantime, Major Milton had asked Acting Captain Sczepanski to arrange for a CFR. The purpose of the CFR was to address the fact that the Respondent had been out on leave and had failed to follow the workers' compensation rules. The CFR was scheduled for August 8, 2002. On or about July 24, 2002, after a twelve-day absence, the Respondent returned to work. Upon his return, Acting Captain Sczepanski requested that the Respondent provide medical documentation to support his twelve-day absence. The Respondent stated that he would provide the medical documentation requested.5 The School Board's Rule 6Gx13-4E-1.13 addresses the subject of illness or injury that occur in the line of duty. The rule provides that employees injured while on duty are entitled to leave. With regard to the duration of that leave, subsection I.A. of that rule provides, in pertinent part: A medical evaluation conducted by a physician approved by the Office of Risk and Benefits Management will be the determining factor as to when the employee is able to return to duty. If the physician indicates that the employee is not able to assume his/her regular duties, but is able to return to a less strenuous work assignment, the employee may be directly appointed to the Workers' Education and Rehabilitation Compensation Program (W.E.R.C.) or to a job commensurate with his/her medical and educational capabilities. Consistent with the above-quoted language of Rule 6Gx13-4E-1.13, as well as with the emergency room discharge instructions that he follow-up with a physician the next day, it would have been in the Respondent's best interests (in more ways than one) for him to have been seen promptly by "a physician approved by the Office of Risk and Benefits Management." Yet, for reasons not adequately explained in the record in this case, the Respondent did not go to an approved physician until July 23, 2002.6 On August 8, 2002, in an effort to comply with the instructions that he provide medical documentation to support his twelve-day absence from work, the Respondent returned to the emergency room at Baptist Hospital to request another return-to- work note from Christopher Pecori, the physician assistant who had attended the Respondent when the Respondent was seen in the emergency room on July 11, 2002. The Respondent told Mr. Pecori that he had lost the original return-to-work note that had been issued to him and that he needed another one for work. Mr. Pecori instructed a nurse, Carl Krome, to issue Respondent a copy of the original return-to-work note. Instead of simply locating and copying the original return-to-work note, Mr. Krome embarked upon the process of preparing a new return-to-work note for the Respondent, because the Respondent explained to Mr. Krome that it had taken him twelve days to recover from the injuries resulting from the July 11, 2002, motor vehicle accident, and the Respondent needed to have some sort of documentation to support the time he was unable to report to work. Mr. Krome took the Respondent at his word and, against his better judgment, agreed to prepare a return-to-work note reflecting twelve days of recuperation, because the Respondent was insisting that he needed a note that covered all twelve of the days he was absent from work. The Respondent conducted himself in a pleasant manner while communicating with Mr. Krome. Mr. Krome prepared the substitute return-to-work note on a hospital computer. What he prepared on the computer reads as follows: Patient: RAFAEL MEJIA, Date 08/08/2002 Time: 15:02 Baptist Hospital of Miami 8900 N. Kendall Drive Miami, FL 33176 (305) 596-6556 RETURN TO WORK INSTRUCTIONS We saw RAFAEL MEJIA in our Emergency Department on 08/08/2002. RAFAEL should be able to return to work in 1 days [sic]. RAFAEL needs the following work limitations: OUT OF WOR [sic] FROM 7/12/02-7/23/02 DUE TO INJURIES FROM MVA. Thank you for allowing us to care for your employee. CHRISTOPHER PECORI, PA-C After Mr. Krome had printed the document, the Respondent pointed out that the first sentence had an incorrect date and a number of days that was inconsistent with the second sentence. Rather than correct the document in the computer and re-print it, Mr. Krome made the corrections by hand. He crossed out the date 08/08/2002, handwrote above it “07/11/02,” and placed initials next to the handwritten date. Near the end of the sentence, Mr. Krome added a “2” after the 1 and again placed initials next to the change. As corrected by hand by Mr. Krome, the first sentence of the substitute return-to-work note read as follows: “We saw RAFAEL MEJIA in our Emergency Department on 07/11/02. RAFAEL should be able to return to work in 12 days.” The Respondent took the substitute return-to-work note provided to him by Mr. Krome and presented it at the CFR that was held later on August 8, 2002. Representatives of the School Board management became concerned about whether the Respondent had modified the substitute return-to-work note and they were also concerned about the fact that the substitute note mentioned twelve days, but the original note mentioned only four or five days. Because of those concerns an investigation was conducted to determine the circumstances under which the Respondent obtained the substitute note. The results of that investigation revealed that the circumstances were essentially as described above. A suspension of the Respondent on the basis of the conduct described in the foregoing findings of fact would be inconsistent with prior disciplinary practices of the Miami-Dade School Police Department. In the past, conduct of the type described in the foregoing findings of fact has not resulted in the suspension of the officer who performed the acts. The Respondent's failure to call in during the twelve days following the July 11, 2002, accident and the Respondent's conduct while requesting a substitute return-to-work note do not constitute misconduct that warrants disciplinary action.7
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges in the Notice of Specific Charges be dismissed and that the Respondent not be suspended. If the Respondent has already served the suspension, it is RECOMMENDED that the School Board take appropriate action to restore the Respondent to the status he would have been in but for the suspension. DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 1st day of April, 2005.
The Issue Has Mr. Aylwin demonstrated that he possesses the requirements of Section 493.306, Florida Statutes (1981) to be licensed as a security guard by the Department?
Findings Of Fact On March , 1981, Mr. Aylwin applied for a Class "D" and "G" Security Guard License from the Department. Question 13 of the application form submitted by Petitioner asked if he had ever been arrested. Mr. Aylwin checked the box marked "No." On May 5, 1981, the Department sent a letter to Mr. Aylwin which stated in part: Your application for the above referenced license has been denied pursuant to the Florida Statutes as cited, and facts stated, in the attachment (applicable portions of the statutes are indicated with an "X"). The items checked included: X Chapter 493.306(2)(b)(1) "There is a substantial connection between the lack of good moral character of the applicant and the business for which the license is sought." X Chapter 493.306(6)(b) "Demonstrate fitness to carry a firearm based upon a complete background investigation by the department of the individual's police record and general character. X Chapter 493.309(1)(c) "Such other investigation of individual as the department may deem necessary." Chapter 493.319: X (1)(a) "Fraud or w11lful misrepresentation in application for or in obtaining a license;" X (1)(c) "Having been found gu11ty of the commission of a crime which directly relates to the business for which the license is held, regardless of adjudication;" X (1)(j) "Commission of assault, battery, or kidnapping or use of force or violence on any person except in self-defense or in the defense of a client;" x (1)(p) "Violating any provision of this chapter." On September 4, 1971, Petitioner was convicted of assault and battery on a police officer in Fort Lauderdale, Florida. He was sentenced to a fine of $202 or thirty-three days in ja11. In 1976 Petitioner was arrested for driving while intoxicated. The charged was later reduced to reckless driving and he was convicted. Petitioner admits to a drinking problem and stated at the final hearing that his use of alcohol was part of the cause for his conviction for assault and battery and for the current loss of his driver's license for traffic violations. No credible evidence other than the lapse of time was presented to establish the rehab11itation of Petitioner from the effects of his assault and battery conviction. Petitioner's explanation of why he did not truthfully answer question #13 on his application is not accepted as credible. It is found that he w11lfully gave a false answer to question #13.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of State, Division of Licensing enter a Final Order denying the application of Rudolph T. Aylwin for both a Class "G" and a Class "D" Security Guard License. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Bu11ding 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 F11ed with the Clerk of the Division of Administrative Hearings this 24th day of August,1982. COPIES FURNISHED: Rudolph T. Aylwin 321 C SE 11 Street Pompano Beach, Florida 33060 James V. Antista, Esquire Department of State Division of Licensing The Capitol Tallahassee, Florida 32301 George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Don Hazelton, Director Division of Licensing Department of State The Capitol Tallahassee, Florida 32301
The Issue The issue in the case is whether the Petitioner was discriminated against on account of race or gender when the Respondent re-assigned her from police corporal to police officer in October 1994.
Findings Of Fact Beginning in 1982, the City of Tampa Police Department (Respondent) employed Linda Baker-James (Petitioner) as a police officer. The Petitioner is a black female. The Petitioner has been involved in multiple incidents resulting in imposition of disciplinary action by the Respondent. These disciplinary actions include a suspension related to untruthfulness in department matters, numerous reprimands and suspensions for tardiness, a reprimand for failure to honor a subpoena, and a reprimand for careless operation of a police vehicle. In 1992, the Petitioner was assigned to work as a school resource officer (SRO) at Oak Grove Junior High School. The rank of SRO is the equivalent to a police corporal. While working as the SRO, disciplinary problems continued. She received a reprimand for failure to submit required documentation, a letter of counseling related to failure to comply with regulations, a letter of counseling related to excessive tardiness, and refusal to direct traffic to assist the departure of students from the school grounds. On March 25, 1993, she received a Notice of Disciplinary Action related to failure to submit required reports. According to the documentation, also on March 25, 1993, the Petitioner was advised by letter that continuing unacceptable performance would result in her removal from the SRO program. On June 30, 1993, the Petitioner received a written reprimand for excessive tardiness. By written notice, the Petitioner was placed on "special evaluation status" on July 19, 1993, related to continuing unacceptable job performance issues. The notice started that failure to demonstrate improvement according to a remedial training plan would result in reassignment. On July 10, 1994, the Petitioner was reassigned from Oak Grove Junior High School to a position as police corporal in Patrol Unit District One. The transfer was a lateral move. The Petitioner does not allege that the July 1994 reassignment was based on race or gender, or that the transfer was indicative of any discrimination. Some of the officers in District One were aware of the job performance issues and were not pleased by her assignment to the unit. There is no evidence that any of the officers who were aware of such factors discriminated against the Petitioner in any manner, or that race or gender issues formed any basis for their opinions of her performance. District One Captain Robert Price reviewed the Petitioner’s personnel records when he learned of the reassignment and expressed concern over her disciplinary record. There is no evidence that his concern was based on the Petitioner’s race or gender. There is no evidence that race or gender issues formed any basis for his opinion of her performance. Captain Price met with the Petitioner when she began her duties with District One and offered encouragement to her, including making specific suggestions related to correcting her problems with tardiness. Job performance problems continued throughout the Petitioner’s assignment as a police corporal in District One. On August 2, 1994, the Petitioner was inexplicably delayed in responding to a burglary call. At approximately 4:39 a.m., she was on duty in a patrol vehicle. By radio, the Petitioner was assigned to respond to a possible burglary call. At 4:40 a.m., Sergeant J. M. Marks, a white female on patrol duty, was assigned as backup to the Petitioner. Sergeant Marks arrived at the scene at 4:42 a.m. and discovered a broken front window at a business. She waited for the Petitioner to arrive before investigating further. The Petitioner arrived at 4:54 a.m., 15 minutes after receiving the assignment, and 12 minutes after Sergeant Marks arrived at the scene as the Petitioner’s backup. The Petitioner was less than five miles from the possible burglary site when she received her assignment at 4:39 a.m. There is no credible explanation for her tardy response to the potential burglary assignment. At 4:39 a.m., unimpeded by traffic, the total transit time from the Petitioner’s location at the time she received the call to the location of the burglary call is substantially less than 15 minutes. Even during daytime traffic, and complying with all traffic laws, transit time of less than 15 minutes is possible. By report dated August 20, 1994, the incident was recorded in a memo from Sergeant Marks to the Petitioner. Marks was concerned that the Petitioner’s tardy response posed a threat to Marks’ safety, and expressed her displeasure in the memo. Later on August 20, 1994, the Petitioner responded to an alleged stabbing incident. Upon arriving at the scene, the Petitioner determined that the stabbing victim was too intoxicated to provide useful information, and decided to release him to the custody of one of his neighbors. The Petitioner asked a neighbor to have the victim contact the Petitioner when he was not intoxicated. She filed no official written report documenting her response to the stabbing report. Apparently later that same night, the Petitioner responded to a possible suicide call. The suicide attempt involved an excessive but apparently non-fatal dose of a pain reliever. Although the Petitioner accompanied the victim to the hospital, she filed no official written report of her response to the potential suicide situation. The appropriateness of an officer’s response to a citizen’s call is established through preparation and review of a police report. Police investigations are initiated by the filing of an officer’s report. The failure to file a report results in no follow-up investigation. The requirement to prepare and file a report is part of every officer’s responsibility. The Petitioner’s failure to prepare or file the reports was cited in an August 20, 1994, written report from Sergeant Marks to Captain Price. The issue of tardiness continued to be of concern to the department. On September 1, 1994, the Petitioner was scheduled for an in-service training program at the police academy. Sergeant Marks talked to the Petitioner the previous night and advised that Marks would meet her at the academy before the training began at 8:00 a.m. to take care of some paperwork with the Petitioner. Marks arrived at the academy at 7:40 a.m. and waited for approximately 25 minutes, until after the training session had started, before leaving. The Petitioner had not arrived by the time Marks left. In a September 1, 1994, memo to Captain Price, Sergeant Marks reported the tardiness incident. Captain Price began a review of the Petitioner’s job performance issues. By memo dated September 26, 1994, to Police Chief B. R. Holder, a black male, Captain Price recommended that she be reassigned to the position of police officer. At the time the memo was transmitted to Chief Holder, Captain Price relieved the Petitioner of her supervisory responsibilities. Captain Price has never recommended that an officer be demoted, but believed the Petitioner’s performance deficiencies were of such serious nature to warrant the action. On October 21, 1994, the Petitioner received her annual performance evaluation, prepared by three supervisors, Sergeant Stertzer, Sergeant Curry, and Sergeant Marks, who had supervised the Petitioner at times during the evaluation period. Although the evaluators identified areas where the Petitioner’s performance was acceptable, all also identified numerous deficiencies. Sergeant Stertzer is a white male. Stertzer supervised the Petitioner during part of the period she worked as an SRO. He reported that the Petitioner’s "chronic tardiness problem" improved "with very close supervision." He also noted, however, that she failed to report to the school administrative office upon her morning arrival, violating an agreement reached between the parties to address complaints about her tardiness from an earlier evaluation period. Sergeant Stertzer reported that the Petitioner failed to maintain the safe status of her patrol vehicle, including malfunctioning brakes and a lose steering wheel, either of which constituted a "significant danger to anyone traveling in the vehicle or other vehicles sharing the same traffic way." He also noted that the Petitioner left a vinyl zipper pistol bag containing her revolver in plain view between the two front seats of the vehicle, constituting an "invitation to theft." Sergeant Stertzer also reported that she put forth no exceptional effort in her job. He noted that there were strained relations with school administrators and staff, and that she "tended to rationalize on occasion." The Petitioner does not substantially disagree with Sergeant Stertzer’s evaluation of her performance. Sergeant Curry is a black female. Curry supervised the Petitioner during part of the period she worked as an SRO. Sergeant Curry wrote that the Petitioner failed to follow unidentified police procedures during an incident referred to as "cracker day" which apparently involved a threat of organized violent activity at the school. The threat was widely known, resulted in expressions of parental concern, and in attention from local news media. Sergeant Curry addressed another incident when, while Curry was at the school, she and the Petitioner observed a crying female student. The Petitioner approached the student and talked to her, then returned to Curry to state that the student had been told that some gang members were going to kill her and she was scared. The Petitioner advised Curry that the student was told to go to class and that the Petitioner would check on the student later. Curry insisted that the matter be addressed immediately. The child was removed from class, and both the child’s parent and the school principal were notified of the situation. Curry later verbally counseled the Petitioner regarding her intended delay in responding to the alleged threat. Curry wrote that in order to address the tardiness issue, a plan had been implemented which required the Petitioner to check in with the administration office upon her morning arrival. Curry wrote that the Petitioner "occasionally projected a defensive, threatened attitude when broached by a supervisor for constructive criticism or disciplinary purposes." The Petitioner disagrees with Sergeant Curry’s evaluation of her performance. Sergeant Marks is a white female. Sergeant Marks wrote that the Petitioner’s "effort to improve her job performance was marginal." Marks noted that the Petitioner had allowed her driver’s license to expire on September 20, 1994, and that the expiration was discovered on October 7, 1994, in a "routine check in preparation for this evaluation." Sergeant Marks noted that her relationship with other officers in District One was "strained" and that "[s]he did not appear very comfortable in the role of a supervisor," but also wrote that she had shown recent improvement and was working to correct the situation. Sergeant Marks wrote that while professional in her dealings with the public, the Petitioner "needs to learn to deal with things on a professional level and that constructive criticism is not a personal attack." Sergeant Marks also noted the burglary response delay, the stabbing incident, the suicide response, and tardiness issues that are addressed elsewhere herein. The Petitioner disagrees with Sergeant Marks’ evaluation of her performance. Tampa Police Chief Holder accepted Captain Price’s recommendation for demotion. On October 23, 1994, the Petitioner was demoted from her position as police corporal to police officer. In November 1994, the Petitioner filed a grievance related to her reassignment. In the grievance, the Petitioner asserted that the demotion was made without "just cause." There was no assertion that the reassignment was related to race or gender. The parties resolved the grievance through a settlement agreement. The agreement provided that the Petitioner would lose no pay in the demotion. The agreement further provided that the Petitioner would be promoted to Master Patrol Officer if her next annual evaluation achieved an "outstanding" rating. The evidence establishes that the Petitioner received assistance from the Respondent in an attempt to address the identified deficiencies. The Petitioner was assigned to work with Sergeant Rousseau, a 14-year veteran of the department. Sergeant Rousseau and the Petitioner created a plan, monitored on a monthly basis, to remedy the deficiencies. Despite Sergeant Rousseau’s assistance, the Petitioner did not get an "outstanding" rating in the next annual evaluation. In October 1995, shortly after receiving the evaluation, the Petitioner filed a charge of discrimination with the FCHR. The evidence fails to establish that the Petitioner’s reassignment from police corporal to police officer was related to race or gender. The evidence fails to establish that any of the employment actions taken by the Respondent towards the Petitioner are related to race or gender. The Petitioner asserts that the she was treated differently than a white male SRO, Anthony Cangelosi, who was also transferred back to the patrol force. The Petitioner asserts that Mr. Cangelosi received formal training prior to his return as a patrol officer after working 12 years as an SRO. The Petitioner further asserts that Corporal Cangelosi received special treatment from fellow officers and his sergeant, including the opportunity to ride with other officers on patrol in order to become comfortable with his new assignment. There is no evidence that Corporal Cangelosi received formal training as alleged by the Petitioner. There is no evidence that Corporal Cangelosi received any special treatment as alleged by the Petitioner. The Petitioner asserts that the she was treated differently than a white male officer, Michael Niemi, who was also placed on "special evaluation." The evidence fails to support the assertion. The evidence establishes that during 1994 or 1995, Corporal Niemi was demoted to an officer’s position based on evaluation by his District One supervisor. After being placed on special evaluation, Mr. Niemi was transferred to District Two patrol unit. Unlike the Petitioner’s disciplinary history, Corporal Niemi had no history of disciplinary problems. Other than his problem with the District One supervisor, Mr. Niemi had never been advised of any job performance deficiencies. While on "special evaluation" Mr. Niemi received two "outstanding" evaluation ratings. There is no evidence that Mr. Niemi received any special consideration based on race or gender. There is no evidence that Mr. Niemi’s transfer to District Two was based on race or gender. There is no evidence that Mr. Niemi’s evaluations were based on race or gender.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Charge of Discrimination filed against the City of Tampa Police Department by Linda Baker-James. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of October, 1998. COPIES FURNISHED: Kaydell Wright-Douglas, Esquire The Wright Building, Suite A 110 North Armenia Avenue Tampa, Florida 33609 Mark A. Hanley, Esquire Kelly L. Soud, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Tampa, Florida 33602 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether the law enforcement officer's certification of the Respondent, Nicholas R. Small, should be revoked for failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, based on two incidents of misconduct. A third incident alleged in the second unnumbered paragraph of paragraph two of the Administrative Complaint was voluntarily dismissed at the beginning of the hearing.
Findings Of Fact Nicholas R. Small was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer before the occurrence of the events alleged in the Administrative Complaint. The Administrative Complaint was filed after a letter of complaint was received from a citizen in April, 1985. This delay in bringing the matter to the attention of the Criminal Justice Standards and Training Commission staff accounts for the delay in the filing of the complaint. On June 13, 1978, Mr. Albert Lee Taylor, his wife and their three small children, were leaving Miami in the family car which was being driven by Mr. Taylor. They were on their way to visit a sick relative in Lake Placid, Florida. Due to Mr. Taylor's work schedule they were unable to begin their trip until after midnight. The Taylors are black. The Respondent, Mr. Small, was a police officer for the City of Hialeah Gardens. He observed the Taylor vehicle as it passed his police car at the corner of N.W. 81st Street and l03rd Avenue. Mr. Small pulled Mr. Taylor's vehicle over because he believed there were deficiencies in the tag light on the car. When Mr. Small left the patrol car and walked to Mr. Taylor's car, he told Mr. Taylor to get out of the car and walk to the back of Taylor's vehicle, which Mr. Taylor did. While using his flashlight, Mr. Small observed a handgun setting in an area between the bucket seats of Taylor's automobile. Mr. Small took possession of the gun. Mr. Taylor carried the gun for protection during the family's travel. Mr. Small arrested Mr. Taylor and while doing so required him to place his hands on the hood of the police car to conduct a pat- down search of Mr. Taylor. The police car engine was running. The hood of the police car was hot to the touch which made it difficult for Mr. Taylor to take the position which Mr. Small required him to assume. Small told Mr. Taylor to spread his legs so that he could be patted-down. Mr. Taylor had recently had hip surgery to replace the ball joint of his hip with an artificial joint. This restricted his range of motion and any attempt to move the leg beyond its range resulted in severe pain. Mr. Taylor spread his legs as far as his hip condition would permit without pain. Mr. Small became dissatisfied with Mr. Taylor's stance and told him to spread his legs more. Mr. Taylor told Mr. Small that he had already spread his legs as far apart as he could with a pin in his hip. Mr. Taylor's wife, who was near by, told Mr. Small that she was a nurse, that Mr. Taylor had a pin in his hip, and that he could spread his legs no further apart. Mr. Small told Mrs. Taylor to "shut up" and shouted that he did not care about that. Mr. Small took his leg and placed it between Mr. Taylor's feet and, by pushing outward, forced Mr. Taylor's legs further apart. Mr. Taylor lost his balance and, as a result of the action, fell on the hood of the car. This caused Mr. Taylor severe pain at the time and resulted in increased pain and tenderness in the leg for several weeks. Mr. Small took Mr. Taylor to jail. Mr. Taylor was never convicted of any crime as the result of that arrest. The next incident alleged in the Administrative Complaint took place on October 24, 1981, when Mr. Small was a uniformed officer for the City of Opa- Locka. Mr. Small had been sent to the scene of a disturbance near Rutland Street and 22nd Avenue. Rayfield Brown, Lloyd Johnson, and his two-year old daughter Fiona were there. Mr. Small and other officers arrived and Mr. Brown and Mr. Johnson were arrested and placed in Mr. Small's police car. After the arrest Mr. Small got into the police car to drive Mr. Johnson and Mr. Brown to the police station. On the way to the police station, Mr. Small turned onto Rutland Street. Mr. Brown looked at the sidewalk on the street corner and saw Mr. Johnson's child, Fiona, standing alone on the sidewalk and crying. Mr. Johnson saw his daughter as they passed the corner and asked Mr. Small to stop the car and pick the child up. Mr. Johnson pleaded with Mr. Small to pick up his daughter so that she would not be left alone on the street but Mr. Small did not stop to attend to the child or take any other action to assure that another officer would take care of the child, thus leaving her abandoned in a urban residential area.
Recommendation It is RECOMMENDED that the law enforcement officer certification of the Respondent, Nicholas R. Small, be REVOKED. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2383 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner The substance of Petitioner's proposed findings of fact have been accepted. Rulings on Proposed Findings of Fact Submitted by Respondent No proposed findings of fact were submitted. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Peter Kneski, Esquire Biscayne Building, Suite 626 19 West Flagler Street Miami, Florida 33130 Rod Caswell, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
