The Issue The issue to be resolved in this proceeding concerns whether Respondent's employment as a teacher should be terminated for just cause, as delineated in Section 1012.33(1)(a), Florida Statutes (2005).
Findings Of Fact Kara Mort (Dr. Mort) has worked in the field of education since 1969 and in her chosen field as a Special Education teacher from 2001 through May 2005 in St. Johns County, Florida. She earned a Bachelor's Degree in Art Education from the University of North Carolina in 1968; a Master's Degree in Emotionally Disturbed Student Education from the Peabody College of Vanderbilt University in 1969; a Ph.D. in Special Education and Administration and Supervision from the University of North Carolina in 1982; and a Juris Doctorate Degree from the University of Florida in 1989. She has been certified to teach in North and South Carolina, Georgia, and Florida and holds an active Florida teaching certificate in the areas of Art, Emotionally Disturbed, Learning Disabled, Mental Retardation, and Administration and Supervision. Her licensure has never been subjected to any disciplinary action in any of the states in which she has had certification as an educator and the evidence reflects no prior employment discipline during her practice in the teaching profession. Dr. Mort has been a National Board Certified Teacher since 2001, which allows her to earn a bonus of 10 percent of the statewide average teacher's salary for each year of employment in a full-time position in a Florida public school. National Board Certified Teachers in Florida can also earn another 10 percent of the statewide average teacher salary as a separate bonus in any year in which they perform a required amount of mentoring services to help other teachers improve their classroom skills. Dr. Mort earned both types of bonuses in each of her four full years of service as a teacher for the Petitioner School District, but was ineligible to receive either bonus for the 2005-2006 school year because of the termination action. In April 2005, the St. Johns County School Board (Board) approved the Respondent for tenured teacher status under a professional services contract (PSC). Based upon her work in the 2004-2005 school year at Nease High School she received an outstanding performance evaluation. Principal Fred Cole offered praise of her relationships with her students and her leadership skills that year and she was selected by District officials to attend a two-day leadership retreat as one of the District's "cadre of excellent teachers and educational leaders." Dr. Mort had two classroom aides beginning with the 2004-2005 school year, Ms. Martha Lucas and Ms. Kathleen Tolx. Dr. Mort and the two aides were all new to Nease High School that year. Dr. Mort had been hired by the Principal of Nease High School, Robert Schiavone, to implement a new special education program. The program included students with significant learning disabilities and emotional disabilities. The curriculum was focused on basic level academic skills, as well as social, daily living, and employability skills. Dr. Mort had eight or ten Special Education students in her class at any given time during her school day that year. The students were all mentally retarded to one degree or another, with most having other substantial deficits, physical or emotional, or sometimes both. One of the students, J.H., has a history of engaging in physical attacks upon teachers, staff, and parents, apparently often related to seizures. J.H. is a large student, being approximately 5'10" tall and between 180 and 190 pounds in weight. When he is agitated he displays great physical strength and agility and is difficult to restrain or control. He often attacks his caretakers for seemingly minor reasons or totally unpredictably. His attacks typically involve grabbing his caretakers' arms to claw and scratch at them. He is extremely limited in his ability to communicate. His speech is very limited and the sign language he knows is imperfect and is best understood only by members of his family. Ms. Lucas had been previously involved in J.H.'s education, when she was part of a summer school program in which he was enrolled in a prior school year. He attacked Ms. Lucas during that summer school program and made a similar attack upon Dr. Mort in the fall of 2004. After that attack on Dr. Mort in the full of 2004, Ms. Lucas told Dr. Mort that she would not intervene if he became violent again, although she would continue to work with him on academic skills. J.H. made significant progress during the 2004-2005 school year as to his academic and developmental progress. His attacks on others diminished in frequency. His parents were very pleased with Dr. Mort's program, her relationship with their son, and the manner in which she managed his conduct when he became violent. Jane H., J.H.'s mother, and her husband continue to feel the same way about Dr. Mort and her ability to work effectively with J.H. and other students, notwithstanding the May "striking incident" described below. They made those feelings known to the Superintendent of the School District as well as the School Board when the termination of Dr. Mort's employment was under consideration. Dr. Mort and her staff and J.H.'s mother, Jane H., on some occasions are able to diminish the anger and violent conduct of J.H. by using certain techniques, such as threatening to call the school resource officer, a deputy sheriff, repeatedly making him aware that his conduct will not let him get his way; and persuading him to take his oral medication (Ativan) that tends to calm him down. His fits of anger and his attacks are unpredictable, however, as to when the occur, how long they will last, or how violent they may be. During their discussions concerning J.H.'s progress and management during the 2004-2005 school year, Mr. and Mrs. H and Dr. Mort agreed that the Ativan should only be used sparingly because it tends to put J.H. to sleep, wasting the remainder of the school day after the medication is administered. Additionally, since the medication is given orally, J.H. must be willing to cooperate for it to be taken or administered in order to achieve its calmative effect. Because of this discussion and circumstance, Dr. Mort chose to use verbal techniques to calm J.H. down, when possible, without given him the medication. During those times when he remained agitated and aggressive he was likely to refuse to take the medication anyway. The Ativan was kept in the office area between the two adjoining Special Education classrooms, one of which was Dr. Mort's. The District provides "walkie-talkie" communicators to teachers to enhance their ability to communicate with each other, the staff, and the school resource officer (SRO) during emergency situations. Ms. Binns kept two walkie-talkies in her classroom area next door to Dr. Mort's classroom. Dr. Mort and her classroom was not assigned a walkie-talkie because apparently the school did not have available the type that Dr. Mort requested. During the 2004-2005 school year the Petitioner began training a few of its special education teachers in a new crisis intervention program known as PCM. Ms. Binns received the training in the first half of that school year and her aide, Ms. Zwolinski, received PCM training in April or May of that school year. The Respondent had requested the training, but was not scheduled to attend any of the 2004-2005 training sessions. PCM training was not provided to Ms. Lucas or Ms. Tolx during that year either. The special floor mat that is required in order to use PCM restraint techniques was not present at Nease High School during the school year and the school did not yet have a full PCM team of three or more trained persons during that school year. PCM techniques are not authorized to be used in restraining students by persons not trained in PCM techniques. The physical restraint methods used in PCM require two, three, or four PCM trained individuals. On March 7, 2005, Dr. Mort suffered a serious injury to her left wrist and arm when another student, N.W., accidently pushed her to the ground while trying to get past her. She fractured her wrist in trying to break her fall, hurt her tailbone, and hit her head on a cabinet. She was unable to use her left hand or arm during the reminder of the 2004-2005 school year. Her left hand remains substantially useless as of the date of the hearing. Although she was seriously injured, Dr. Mort had the presence of mind to remain calm and spoke kindly to N.W. in order to keep him from feeling guilty about causing her injury. On May 17, 2005, J.H. was not feeling well. He apparently was upset about school personnel changes he had recently heard about involving the principal and assistant principal leaving the school at the end of that school year. He wanted to go home because he felt badly. He became very agitated when Dr. Mort told him she was unable to send him home because she was unable to contact his parents to come get him at that time. Over the course of that morning J.H. intermittently became upset, calmed down to the point where he would lie down for periods of time, only to become agitated again. During the lunch period that day, shortly before noon, he again became angry and frustrated about his circumstances and acted out by throwing books and other objects off a classroom table and onto the floor, which caused a great deal of noise. Dr. Mort repeatedly told him in a stern tone that he would have to pick up the books before he could go home. Eventually, he did kneel down and begin picking up the books. Ms. Zwolinski, Ms. Binns' aide, heard the books land on the floor and looked through the window between the classrooms to see what was happening. She entered Dr. Mort's room briefly through the hallway between the rooms and heard Dr. Mort twice ask Ms. Lucas to press the "panic button" to get help. This is a button by which help can be summoned from elsewhere on the campus during an emergency situation. Ms. Zwolinski saw Ms. Lucas push the emergency button after Dr. Mort's second, more agitated request. Ms. Zwolinski then returned to Ms. Binns' room to work with the students who were returning from lunch. During the event she observed, Ms. Zwolinski did not see Ms. Tolx in Dr. Mort's room nor did she see Ms. Tolx passing through Ms. Binns' room on the way to the adjoining room from the cafeteria. She never heard Ms. Tolx ask Dr. Mort if she needed help dealing with J.H. Dr. Mort then went to a nearby table where student J.P. was seated. He was in the vicinity of where the books landed. Dr. Mort was trying to be sure that he had not been hit or hurt by the flying books. In the meantime, J.H. stopped picking up the books and went to the day bed in the classroom. After sternly telling J.H. once again that he would not be able to go home until he picked up the books, Dr. Mort began to kneel down to help J.H. pick the books up. At that moment J.H. ran at Dr. Mort, and grabbed her arms as part of the first of three attacks over a period of the next few minutes. Initially he grabbed Dr. Mort's arms and clawed at the lower parts of both arms. Dr. Mort stepped back and pulled away from J.H. slightly and then he grabbed her again and began clawing at her breast area with one hand and the upper part of her usable arm with his other hand. She continued to try to twist out of his grasp as best she could, managing to break free slightly from his hold. He then attacked more violently a third time resumed his clawing of Dr. Mort's upper arms and buried his head into her chest and began biting her breast. By the time of this third assault Dr. Mort moved back to a nearby table and was leaning back against it with her lower body. J.H.'s clawing and biting of her breast caused severe pain, during which Dr. Mort continued to plead for Ms. Lucas' assistance. Ms. Lucas was in the room during the attack and finally pushed the emergency button at some point to summon help from the administration. No help ever came. The attacks intensified and Dr. Mort continued pleading for Ms. Lucas to help her. Ms. Lucas then retreated into Ms. Binns' classroom and got the walkie-talkie to try to summon the school resource officer. This was to no avail. The deputy, the SRO, never arrived. Dr. Mort's severe pain continued as she tried unsuccessfully to fend J.H. off with her one functional arm and hand. She was very concerned that his severe biting would cause damage to her breast and nipple and made repeated efforts to verbally snap J.H. out of his trance-like state, to no avail. Seeing no sign of any help and being in severe pain, Dr. Mort testified that she "cupped" her good hand and struck firmly one time at J.H.'s upper shoulder. Dr. Mort hoped that a "cup-pop" type of blow would create noise that would snap J.H. out of his seizure like state and stop the attack. Dr. Mort's one strike of J.H. coupled with her request for him to stop hurting her ultimately caused him to end his assault and he let go of her immediately thereafter. The single blow, on or near J.H.'s left shoulder was administered in the hope by Dr. Mort that it would prevent further serious harm to her without harming him. She did not strike him out of anger, but as a means to defend herself and snap him out of his trance-like state and end the attack. J.H. suffered no injury or bruises with respect to the May 17th incident, although Dr. Mort certainly did. Moreover, J.H. was never injured during the 2004-2005 school year, apart from occasional self-inflicted bite marks on his arms. Both Ms. Tolx and Ms. Lucas maintained that Dr. Mort had slapped J.H. in the face with her open hand, rather than administering a "cup-pop strike" to J.H.'s shoulder. In fact, however, the competent, persuasive evidence shows that Ms. Tolx was in the lunchroom during the May 7, 2005, incident and did not even see the attack of J.H. upon Dr. Mort nor Dr. Mort's strike of J.H. Ms. Lucas could not clearly seeing what was occurring between Dr. Mort and J.H. because the room was somewhat dark, she was busy locating and trying to use the walkie-talkie in the next room and has poor vision. She generally tried to avoid dealing with J.H. when he became violent. Ms. Tolx and Dr. Mort had been roommates for a few months in the Falll and Winter of 2004, because two hurricanes had rendered Dr. Mort's home temporarily unlivable. Ms. Tolx had angrily ordered Dr. Mort to leave her home one evening in January of 2005 for allegedly causing an argument between her and her 36-year-old developmentally disabled son that resulted in him leaving the house. Moreover, the relationship between Ms. Lucas and Dr. Mort was a strained one as well. Dr. Mort considered Ms. Lucas a poor employee and had previously told her so. Ms. Lucas and Dr. Mort had had a heated argument only a week before the J.H. incident and Ms. Lucas believed that Dr. Mort planned to have her fired. Ms. Lucas sought a re- assignment at some point and no longer works for the school district. It is determined that the testimony of Ms. Lucas and Ms. Tolx's under the above-found circumstances is not credible and persuasive. The testimony of Dr. Mort and Ms. Zwolinski is more credible. Consequently, Dr. Mort's testimony concerning the details of the incident involving the attack on her by J.H. is more credible and is accepted over that of Ms. Lucas and Ms. Tolx. Moreover, J.H. is a quite large, 190 pound student who is unpredictably aggressive and violent. If, indeed, Dr. Mort had slapped his face in an effort at self-defense and in trying to get him to end an acutely painful and injurious attack, it is deemed to have been reasonable force, undertaken in a last ditch effort at self-defense, to prevent further physical harm to herself, while causing the least possible harm to the student in trying to stop his attack. She did not strike J.H. in anger or as a means of retaliation for his hurting her. Under the circumstances found herein, based on persuasive, credible evidence, even more force than a slap to the face would have been reasonable. The Department of Education has adopted guidelines to evaluate the reasonableness of incidents of force used by teachers to prevent physical harm to themselves, school staff, or students. Those guidelines were adopted in 1997 by the Department of Education, as required by Section 1003.32(1)(j), Florida Statutes (2005). Given the circumstances with which Dr. Mort was confronted on May 17, 2005, her physical response to J.H.'s repeated and increasingly violent, painful, and injurious attacks was undertaken solely to prevent more serious injury to herself and to minimize injury to the student J.H. (in fact he was not injured at all). Such constituted reasonable force as authorized by Section 1003.32(1), Florida Statutes (2005), the referenced guidelines, as well as the applicable collective bargaining agreement. Nothing Dr. Mort did on May 17, 2005, reduced her effectiveness as an employee of the School District. The testimony adduced from witnesses presented by the Petitioner, to the effect that there has been a loss of trust by parents, other teachers, and students in Dr. Mort, because of her striking J.H., and to the effect that she cannot in the future maintain a calm, positive, productive, and safe educational environment in her classroom and with staff and parents is deemed unpersuasive. There is no persuasive evidence that other parents, some of whom testified, have found her to have lost her effectiveness as a teacher and an employee of the School District nor that parents have lost confidence and trust in Dr. Mort as a teacher of their children. More credible and accepted is Dr. Mort's testimony and that of J.H.'s mother herself (and the other parent witnesses) who find that Dr. Mort has provided an effective, positive, productive, and loving educational environment for J.H. and other students. In fact, it is undisputed that Dr. Mort is academically well-qualified to teach exceptional students and the parents of the students in her classroom have characterized her as an effective teacher during her tenure at Nease High School. Additionally, Mr. Cole, who was responsible for evaluating her during the 2004-2005 school year, observed and found a healthy learning environment maintained by Dr. Mort. He gave her a very favorable formal evaluation for that year. Dr. Mort's replacement for the 2005-2006 school year, Mr. Hill, did receive PCM training. That means that Nease High School now has a full PCM trained team of three individuals. In the fall of the 2005-2006 school year, Mr. Hill and Ms. Zowlinski responded to yet another physical encounter between J.H. and Ms. Tolx. They had to use an aggressive two- person PCM restraint technique to subdue J.H. In order to restrain J.H., who continued flailing and scratching at them during this occurrence, Mr. Hill and Ms. Zowlinski ultimately had to sit on him for an hour and ten minutes before calling the school resource officer to help end the encounter. Ms. Zowlinski suffered a serious back injury as a result of this incident and restraint of J.H. Because of the termination action, Dr. Mort lost a substantial amount of regular salary, supplemental pay, and bonus income she would have otherwise earned. Among those lost wages and bonuses are her previously-approved summer school pay, hospital/home bound salary for services she expected to provide that summer and into the next school year, and almost $10,000.00 payable to her because of her National Board Teacher's certification status. Additionally, she could not attend, and was not paid for an approved two-day leadership retreat to which she had been invited. She has lost both leave and retirement- related credits and benefits and had to pay COBRA insurance premiums of over $400.00 dollars per month to secure continued medical insurance coverage since October 1, 2005. In summary, the above-found facts, based upon persuasive, credible testimony and evidence show that Dr. Mort employed reasonable force in her involvement in the incident of May 17, 2005.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of St. Johns County dismissing all charges and reinstating Dr. Mort to her employment position with the full range of regular and supplemental back-pay and reimbursement of all categories of lost benefits, as delineated above, as a "make- whole" remedy. DONE AND ENTERED this 18th day of May, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 COPIES FURNISHED: Thomas J. Leek, Esquire Kelly Parsons, Esquire Cobb & Cole Post Office Box 2491 Filed with Clerk of the Division of Administrative Hearings this 18th day of May, 2006. Daytona Beach, Florida 32115-2491 Anthony D. Demma, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Dr. Joseph Joyner Superintendent St. Johns County School Board 40 Orange Street St. Augustine, Florida 32084-3693 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, with just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. At all times material to the instant case, Respondent was an annual contract employee of the School Board occupying a paraprofessional position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Respondent's employment with the School Board began on October 2, 1987, when he was hired as a part-time custodian and assigned to Hialeah Middle School (HMS). He remained a part-time custodian at HMS until 1989, when he became a teacher aide at the school. He was a teacher aide at HMS from 1989 to 1992. In 1992, he filled a teacher assistant position at the school. He stayed in that position until he was administratively reassigned in April of 1994, following the incident which led to the initiation of the instant disciplinary proceeding. As a teacher assistant at HMS during the 1993-94 school year, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1991, through June 30, 1994 (UTD Contract). 2/ Article IV of the UTD Contract addressed the subject of "employer rights." Section 1 of Article IV provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XIX of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XIX provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Article VII of the UTD Contract addressed the subject of a "safe learning environment." Section 1, paragraph A, of Article VII provided as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive b havior be dealt with safely, fairly, consis- tently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph B, of Article VII provided, as follows: Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Main- taining a Safe Learning Environment and, by reference, are made a part of this Contract. Guideline No. 4 of the School Board's Procedures for Promoting and Maintaining a Safe Learning Environment (School Board's Procedures), which were incorporated by reference in Section 1, paragraph B, of Article VII of the UTD Contract, addresses the subject of "child abuse" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE Section 415.504, Florida Statutes, requires mandatory reporting of all cases of child abuse. This statute applies to suspected or confirmed reports against any person, regard- less of occupation, who is alleged to be involved or any person who is alleged to have committed any act of child abuse. School personnel are not exempted from mandatory reporting of child abuse even when a fellow employee is suspected or confirmed as the abuser. WHEN IN DOUBT, REPORT ... CHILD ABUSE Child abuse is defined to include harm or threatened harm to a child's health or wel- fare and/or willful or negligent acts which result in: neglect; malnutrition; sexual abuse; physical injury; mental injury; or failure to provide sustenance, clothing, shelter, or medical treatment. Any person, including, but not limited to, physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason to believe that a child has been a subject of child abuse, shall report this information as indicated in the procedures outlined in this guideline. Knowing and willful failure to report sus- pected or confirmed abuse, and knowing and willful prevention of another from making such a report, is a crime punishable by up to two months in jail and up to a $500 fine, Sections 775.082 and 775.083, Florida Statutes, and may be subject to disciplinary action of Dade County Public Schools. It is suggested that once a report is made, the principal or appropriate school administrator be notified. PROCEDURES . . . SCHOOL RELATED CHILD ABUSE REPORTING . . . Anyone aware of suspected or confirmed child abuse committed by School Board employees acting in their official capacity, shall immediately make a report to the principal or designee who shall immediately make a report to the Dade County Public Schools Police and the Region Office. Reasonable Force and Child Abuse. In some instances, a need may exist to differentiate between reasonable force and child abuse. Florida Statute 232.27 provides that: Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned by the princi- pal or designee and shall keep good order in the classroom and in other places in which the teacher or other staff member is assigned to be in charge of students... Florida Statute 232.275 provides that: ...Except in the case of excessive force or cruel and unusual punishment, a teacher or other staff member, a principal or designee, or a bus driver shall not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules regarding the control, discipline, suspension, and expulsion of students... An administrator must report to Dade County Public Schools Police and the Region Office all cases involving Board Employees where: excessive physical force or physical contact that was used was greater than necessary use of unauthorized physical action results in injury to a student corporal punishment is administered to a student Guideline No. 5 of the School Board's Procedures addresses the subject of "illnesses and injuries to students" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE All employees responsible for supervision of students and student activities are to take precautions to protect the life, health, and safety of every student in an effort to reduce or eliminate accidents, injuries, and illnesses. . . . Guideline No. 9 of the School Board's Procedures addresses the subject of "corporal punishment" and provides as follows: CURRENT LAW AND/OR PRACTICE Corporal punishment is prohibited in the Dade County Public Schools. This prohibition extends to parents or guardians on school grounds. Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), Florida Statutes, defines corporal punishment as: ... the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principal as may be necessary to protect himself or other students from disruptive students. The use of physical restraint techniques in accordance with School Board Rule 6Gx13-6A-1.331 (Special Programs and Procedures and . . . . the Contract Between the Dade County Public Schools and United Teachers of Dade is not corporal punishment. Prior to March 10, 1994, Respondent was aware of the School Board's rules prohibiting the use of corporal punishment and requiring employees to report cases of suspected or actual child abuse. Section 1, paragraph D, of Article VII of the UTD Contract provided, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alter- natives for dealing with student behavior. "Physical restraint" was the subject of Section 3 of Article VII of the UTD Contract, which provided as follows: There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Exceptional students enrolled in pro- grams for the emotionally handicapped, severely emotionally disturbed, and autistic, because of the nature of their disability, may on occasion experience impaired impulse control of such severity that use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. Students enrolled in other exceptional student education programs may also display behaviors that require the use of restraint. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. Subject to available funding, teachers or paraprofess- ionals shall, upon request, be afforded an opportunity to learn physical restraint techniques. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when a explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint techniques is authorized for such circumstances. Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized for implementation specific physical restraint procedures to be used in programs for the emotionally handicapped, severely emotionally disturbed, and autistic. These specific procedures may also be used with other exceptional students when it is indicated on the student's Individualized Education Program (IEP). These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations upon mutual agreement of the parties and would be reviewed on an annual basis. The Board shall provide for the training of instructional and support staff in physical restraint techniques as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accor- dance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). The use of physical restraint techniques shall be discussed as part of the Individualized Educational Program (IEP) review development process. The Local Education Agency (LEA) representative, at the initial IEP meeting and/or annual review, shall provide notifica- tion to parents of physical restraint proced- ures. When parents or surrogates are not present at the meeting, written notification to them regarding the use of physical restraint will be provided. For an exceptional student enrolled in a program other than for the emotionally handicapped, severely emotionally disturbed or autistic, a recommendation for the use of board-approved physical restraint procedures must be made by the multi-disciplinary team (M-Team) and be documented on the student's IEP form before the use of such procedures may be authorized. The use of physical restraint must be documented as a part of the Student Case Management (SCM) System. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Direct- ions shall be provided to instructional and support staff to assist them in completing the appropriate form. In accordance with Section 3 of Article VII of the UTD Contract, the School Board offered (and continues to offer) a Safe Physical Management Crisis Intervention Training Program (SPM Training Program) for its instructional and non-instructional staff assigned to work with emotionally handicapped, severely emotionally disturbed, and autistic students in order to train these employees in the use of School Board-authorized and approved physical restraint techniques and strategies. Participants in the School Board's SPM Training Program are given training manuals to review and study. According to one of these training manuals, Petitioner's Exhibit 3, the philosophy of SPM is as follows: Utilizing Safe Physical Management tech- niques in the classroom requires that non- physical intervention be used whenever possible to manage behavior. It is also expected that an on-going behavior management system is in place in the classroom to rein- force appropriate behaviors and control inappropriate ones. Physical management techniques may be used when the student is endangering himself, others, or property. They are not used to "punish" the child for misbehavior. Additionally, the philosophy of SPM includes the following major concepts. Emphasis on Safety- Techniques utilized in SPM consider the safety of the client and staff first. In a school setting, techniques that ensure physical safety of students and staff are important. Realize that Students can be Aggressive- SPM accepts the fact that some students need to be physically managed. The techniques used are based on the premise that students will at times eventually force physical inter- vention. That is, the student will do some- thing that you cannot ignore or manage using non-physical interventions. Least-Restrictive- SPM techniques move from least restrictive (providing minimal physical control) to more restrictive (providing maximum control). At all times, the least-restrictive technique that can control the student is used. Limitations- SPM techniques have limit- ations. They cannot handle every explosive situation. There are times when the best situation is not to intervene physically. There are times when SPM Techniques are neither appropriate or feasible. Assistance- SPM techniques advocate the use of assistance. Most techniques work best with two or more people and often, the best decision initially is to get help from other staff members. 3/ Professionalism- The focus of SPM techniques is to assist in the maintenance of a safe learning environment. SPM provides the district approved terminology for the documentation of physical intervention by the professional staff. This training manual also contains, among other things, the following information and instructions concerning the management of an "explosive event:" To effectively manage explosive (out-of- control) situations it is important to conceptualize them as: Angry/Aggressive- No matter how the incident begins, it is an expression of anger on the part of the student. Time-Limited/Temporary- Explosive incid- ents are angry, with the most dominant charact- eristics being a loss of physical control by the student. They are time-limited and even though they seem endless, the student will eventually calm down. Behaviorally Sequential- The behaviors exhibited by the student follow a pattern with behaviors typical each period (see Appendix B). Physical management techniques are not designed to end the explosive episode abruptly. Rather they are designed to safely manage the situation from beginning to end. As a result, the student may cont- inue to engage in aggressive acts, but managed appropriately, the risk of injury to persons or equipment is minimized. During the incident, only the amount of force necessary to prevent injury is utilized, and as the child exhibits more control a less restrictive hold may be used. Planning for explosive incidents is an important part of their prevention. Assessing the student, the environment and available staff is critical before physical intervention occurs. During the event, professional staff must be aware of both the verbal and non-verbal messages they give to students. It is important to indicate concern, expectation for change, and your interest in solving the problem. It is not the time to list sanctions, discuss potential punishments, or respond to personally abusive comments. After the incident ends, the staff involved should allow the student to withdraw and provide calm, brief verbal statements. Now is the time to communicate understanding, and to help the student identify ways this sequence of events can be prevented in the future. Another of the training manuals given to participants in the School Board's SPM Training Program, Petitioner's Exhibit 4, states the following regarding the importance of the child's safety in dealing with "explosive behavior:" Youth service workers and teachers are charged with a caretaking responsibility. As such they assume the natural role of adults to protect or safeguard the young. The Safe Physical Management Crisis Intervention Training Program has as its fundamental pur- pose the safe resolution of explosive behavior. This safety premise holds the adult responsible for insuring the safety of the youth. While the charge of guaranteeing youth safety during a crisis may appear in some way to jeopardize the safety of the intervening adult, in reality it keeps the adult from stepping into harm's way. Entering an explosive situation with a cognitive and physical focus of client safety allows for the management of the behavior and avoids the traps that attempting to eliminate the behavior present. When the purpose of the intervening staff is controlled by self preservation, their reaction to the acting out youth can easily become antagonistic. Such reactions promote escalation and a greater potential for harm. By keeping the youth safe, we provide a higher degree of safety for ourselves. . . . Intervention methods must be safe for both youth and adults; client/student safety however, is primary. At a minimum we shall do no harm. Physical intervention must be safe and, ideally, present minimal risk of accidental injury. . . . The intervention design of the safe physical management program is based upon the principle of social policy known as the "least restric- tive alternative." In many areas this principle has been reduced to the regulatory phrase, "passive restraint." In action, passive restraint refers to an intervention that utilizes the least amount of force necessary to safely control the situation. Student/youth safety is paramount. The SPM intervention philosophy requires that inter- vention personnel hold the safety of the student before their own. This premise, while sometimes raising the eyebrows of staff in training, ironically keeps the intervening staff safer than would an approach which holds staff well-being as primary. This training manual also contains, among other things, the following list of the "physical principles" of SPM: Proximity- safety is enhanced if physical space is understood as both a prompt and/or a deterrence to be used in the management of misbehavior. Location/positioning- safety is enhanced if intervention staff understand that the "face to face" position during intervention is considered the "attack/danger" zone. Evasion/deflection- safety is enhanced by evading or deflecting force rather than by opposing it. Balance- Safety is enhanced if intervention staff understand the principle of homeostasis- the nature of organisms to remain in a state of balance. Neutralization- Safety is enhanced if inter- vention staff understand the principle of managing an explosive event, rather than eliminating explosive behavior. In addition, this training manual describes and illustrates various physical positions and techniques used in SPM, including the "pivot and parry," an "evasion/deflection" technique which is described in the manual as follows: This combination of upper and lower body movement allows the staff to effectively evade and deflect any force that is directed at him/her. The pivot (usually 1/4 turn of one foot) is accomplished by leaving the weight on the foot which is on the side on which the blow or punch is delivered and moving the other foot toward the rear. The ending posture or stance should be the leading/trailing foot position previously described. This movement allows the blow or punch to go by the indivi- dual. This is the bull fighter move that allows the charging bull to pass on the side. Here, we are evading force rather than opposing it. The parry is a deflection of the force- i.e., the blow or punch. While both arms are used the primary parry is employed using the arm that is on the same side as the blow or punch. This arm is raised in an "L" configuration with the forearm vertical and upper arm on a horizontal pla[ne]. As the blow or punch is delivered the forearm is moved across to deflect the incoming force. This is not a blocking motion but, rather, a motion which simply redirects the force away from its target. The second arm is also used by making a similar "L" configuration with the hand being placed a approximately chin level. Again, the purpose is deflection. When the pivot and parry is employed correctly it places the staff in a position to move in and control the attacker, or to escape the danger by fleeing the situation. School Board staff receiving SPM training are also taught that, if during an "explosive event" they find themselves lying on the floor on their back being kicked by a student, they may raise a leg or arm to create a barrier to protect other, more sensitive, parts of their body. It is imperative that staff, in applying SPM principles, techniques, and strategies, exercise sound professional judgment. In determining how to deal with an "explosive event," which often begins abruptly, staff must consider the particular circumstances with which they are confronted. If they have had prior dealings with the student involved in the incident, they should draw upon these prior dealings and attempt to anticipate the student's actions. Respondent successfully completed a SPM training course offered by the School Board prior to March 10, 1994. 4/ Through its exceptional student education department, HMS offers special programs of instruction for various types of exceptional students, including those who are autistic. 5/ It is not uncommon for autistic students to engage in "acting out behavior" (such as screaming, yelling, punching, kicking and throwing objects). To enable its employees who work with autistic students to better understand these students and to deal with them more effectively, the School Board provides these employees with various written materials, including the Autism Orientation Manual, Petitioner's Exhibit 7, which contains the following statement regarding SPM: These procedures should conform to methods approved by the Dade County Public Schools which are described and demonstrated in struc- tured training sessions required for teachers and paraprofessionals working with autistic students. When using physical restraint, it is important to document what is being done. Written permission from parents or guardians is required. Physical restraint should not be used unless positive reinforcement methods have been utilized and the student is presenting potential harm to self and/or others. Evelyn Diaz Loper is now, and was at all times material to the instant case, an assistant principal at HMS responsible for the overall operation of the school's exceptional student education department, including the supervision of those School Board employees assigned to the department. On March 10, 1994, Respondent and Morgan Tharpe were among the employees under Loper's supervision. Tharpe was a teacher (with continuing contract status) who taught a class of autistic students at HMS. There were less than ten students in his class. M.A. was one of these students. M.A. was one month shy of his fourteenth birthday. He was quite strong for his age and had a history of engaging in "acting out behavior" in school. Respondent worked on a "one-to-one" basis with F.T., another student in Tharpe's class. During the second period on March 10, 1994, M.A., F.T. and the other students in Tharpe's class were in shop teacher Gerald Merkerson's classroom. They were supposed to be working on their woodworking projects. In addition to Tharpe's students and Merkerson, Respondent and two other School Board employees occupying paraprofessional positions (Eli Velazquez and Clara Smith), along with L.E., an HMS student in the school's regular education program, were in Merkerson's classroom. M.A. wanted to watch television in the classroom and not work on his project. Merkerson, however, refused to allow M.A. to watch television. M.A. thereupon began to engage in "acting out behavior." Among other things, he threw a metal file and wood in Merkerson's direction. (Merkerson was not hit by any of these thrown objects.) Merkerson and Velazquez took action to restrain M.A. Merkerson grabbed M.A.'s left arm, while Velazquez grabbed M.A.'s right arm. 6/ The two then attempted to lead M.A. away from the area of the classroom where M.A. was positioned. M.A. resisted their efforts. Unlike Respondent, Velazquez had not yet been trained in SPM. Moreover, he was not supposed to be in Merkerson's classroom. Accordingly, Velazquez let go of M.A.'s arm and Respondent attempted to take over for him. M.A., however, bit Respondent on the arm. The bite broke Respondent's skin. Velazquez came to Respondent's assistance and helped Respondent remove himself from the fray. After tending to his wound, Respondent rejoined Velazquez and assisted him in attempting to restrain M.A. Merkerson was no longer holding on to M.A. He had let go after a cut on his hand had reopened and started to bleed. M.A. was on his knees on the floor being restrained by Respondent and Velazquez when Tharpe walked into classroom. Tharpe instructed Respondent and Velazquez to let go of M.A. Respondent and Velazquez followed Tharpe's instructions, notwithstanding that M.A. had not yet calmed down and was still engaging in "acting out behavior." Tharpe walked toward M.A. When Tharpe was approximately two feet away from M.A., M.A. kicked Tharpe in the area of his groin. Tharpe screamed out in pain. M.A.'s actions prompted Velazquez to again attempt to restrain M.A. He grabbed both of M.A.'s arms, but was not able to hold on securely because both he and M.A. were dripping with sweat. M.A. struggled with Velazquez and tried to scratch and bite him. As Velazquez and M.A. were on their knees, face-to-face face, struggling with one another, Tharpe approached M.A. from behind and struck M.A. in the area of the upper back with a relatively thin, rectangular-shaped piece of wood approximately one foot to two meters long and two to three inches wide. 7/ Velazquez released M.A. after Tharpe delivered this blow. M.A. then started crawling towards Tharpe and tried to scratch and bite him. In an effort to ward off M.A.'s attack, Tharpe, who at 235 pounds was substantially larger than M.A., hit M.A. on the back at least two more times with the piece of wood he was holding in his hand. These additional blows were not delivered with full force. The three or more blows that Tharpe delivered produced bruises on M.A.'s back. The marks remained visible for approximately seven to ten days. In delivering these blows, Tharpe used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a manner that was inconsistent with the SPM training he had received. Respondent had witnessed Tharpe's actions and recognized that Tharpe had acted improperly. Nonetheless, contrary to the requirements of Guideline No. 4 of the School Board's Procedures (of which Respondent was aware), Respondent did not report the incident to Loper (who was at school that day) or any other School Board administrator within a reasonable period of time following the incident. Neither did any of the other HMS staff members who had been in the classroom at the time of the incident advise Loper, on March 10, 1994, of what had happened. Although Tharpe's actions were inappropriate, they were effective. After Tharpe delivered his final blow, M.A. stopped crawling toward him. M.A. continued to scream, however, and, after a while, he started to crawl toward Respondent. In an effort to prevent M.A. from coming any closer, Respondent swung his foot in M.A.'s direction and made contact with M.A. 8/ Respondent kicked M.A. approximately five or six times, but M.A. continued coming at him. When Respondent started to become visibly upset with M.A., Velazquez intervened by positioning himself between Respondent and M.A. and pushing Respondent out of the way. Respondent did not kick M.A. as hard as he could have. 9/ Nonetheless, in kicking M.A., he used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a physically aggressive manner that was inconsistent with the SPM training he had received. 10/ M.A. eventually calmed down and returned to Tharpe's classroom. Tharpe telephoned M.A.'s mother, L.A.H., that day (March 10, 1994), but he did not mention to her during their conversation anything about what had happened in Merkerson's classroom during second period. He simply told L.A.H. that she needed to supply him with more medication for M.A. Following the conclusion of the school day, M.A. went home by school bus. L.A.H. met him at the bus stop and greeted him with a hug. She was unaware, at the time, that anything unusual or out of the ordinary had occurred in school that day. M.A. pulled away from his mother when she hugged him and said, "Mom, boo-boo." 11/ L.A.H. then pulled up M.A.'s shirt and saw four bruises about "three fingers wide" on M.A.'s back that had not been there that morning when she had helped M.A. get dressed for school. M.A. also had a scratch on his forehead that L.A.H. had never seen before and a bump on his head. The following morning (March 11, 1994), L.A.H., accompanied by M.A. and M.A.'s father (L.A.H.'s former husband), met with Loper and William Jones, the principal of HMS. L.A.H. showed Loper and Jones the bruises on M.A.'s back and the scratch on his forehead and expressed her belief that M.A. had sustained these injuries at school the previous day. Loper thereupon contacted Merkerson and asked him if anything had occurred in his classroom the day before that may have resulted in injury to M.A. In view of Merkerson's response to her inquiry, Loper asked him to fill out a Student Case Management Referral Form (SCM Form). A SCM Form must be filled out whenever a student has been physically restrained. Loper had not previously received a completed SCM Form indicating that physical force had been used against M.A. in Merkerson's classroom the day before. On the SCM Form that he filled out at Loper's request, Merkerson stated the following: [M.A.] became irate and upset because he was not allowed to watch Barney on television. He became combatant and began to throw stools and wooden objects at the teachers and paraprofessionals. Upon being subdued to reduce the danger that he posed to myself and others he bit Juan Alejo on his right forearm, kicked Mr. Tharpe in the groin area and hit his right arm with his balsa wood project. The student poses a serious safety hazard in the technology education shop class. [M.A.] was also self destructive and scratched himself on the left temple. Although Merkerson did not mention in his written report that, in subduing M.A., Tharpe had hit M.A. with a piece of wood and Respondent had kicked M.A., the School Board ultimately found out about Tharpe's and Respondent's unseemly and inappropriate behavior during the incident. On November 2, 1994, a conference for the record was held concerning Respondent's involvement in the incident. At the conference, Respondent admitted that he had kicked M.A. during the incident. By letter dated November 3, 1994, the principal of HMS recommended to Frank de Varona, the Regional Superintendent (for Region I Operations) "the termination of [Respondent] from all employment in Dade County Public Schools." By letter dated January 13, 1995, the School Board's Superintendent of Schools notified Respondent that he was recommending that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its January 25, 1995, meeting. Respondent thereafter requested a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 25th day of April, 1996. STUART M. LERNER, 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 25th day of April, 1996.
The Issue The issue is whether Petitioner may terminate Respondent's employment for just cause.
Findings Of Fact Respondent is a journeyman mason employed by Petitioner. The school district is divided into large regions, and Respondent is one of only two masons available to schools located within the region to which he has been assigned. As a mason, Respondent performs his work exclusively at school sites, rather than at a centralized shop. In May 2005, Edward Smith, then the principal of the Dario Middle Community School, was in his office and overheard Respondent involved in a loud verbal exchange. School clerical staff had appropriately asked Respondent to present an employee identification badge prior to engaging in work within the school. Respondent was in the office area preparing to perform some masonry work, but, at the moment of the request, was shouting into his cellphone at a representative of a lender with whom he was conducting personal business. Respondent became angry at school staff, when they persisted in asking that he present identification despite his attempt to wave them away. Claiming that he was concerned that he would lose reception and, thus, the call, Respondent did not want to interrupt his cellphone conversation to deal with the request to present identification. When staff continued to demand identification, Respondent's anger spilled over toward school staff. Mr. Smith approached Respondent and demanded to see his identification. Instead of responding to Mr. Smith's demand, Respondent first uttered several profanities, including "shit" and "fuck," to the lender's representative. After uttering these profanities, Respondent turned his attention to Mr. Smith and told him that his identification was in his truck. Mr. Smith then escorted Respondent to his truck so he could produce his badge. During this time, Respondent continued his cellphone conversation, loudly and crudely denouncing the person with whom he was speaking. Respondent produced his school identification in the truck. Shocked at this unprecedented rudeness by a school district employee, Mr. Smith immediately contacted Respondent's supervisor and told him that he never wanted Respondent on his campus again, even if it meant that something broken remained broken. Respondent's supervisor informed Respondent that this type of behavior was unacceptable. On May 26, 2005, Respondent received a reprimand for his behavior at Dario Middle Community School. The reprimand ordered Respondent, among other things, to "[f]ollow all procedures and conduct yourself in a professional manner at all facilities at all times" and "[w]ear your badge at all times, sign in and out at the main office at each school assigned as indicated in your employee handbook . . ., and not engage in any inappropriate contact with students and staff." In September 2005, Dr. Doylene Tarver, the principal of Everglades K-8 Center, overheard from her office Respondent yelling and screaming at her staff. Dr. Tarver left her office and found Respondent angrily confronting the security guard, who was insisting, in accordance with school rules, that Respondent sign in as a visitor. This disruption took place in the presence of after-care parents at the school to pick up their children. Dr. Tarver approached Respondent, who demanded to know who she was. After she identified herself as "Dr. Tarver," Respondent asked if she had been one of the school personnel recently identified in the media as having purchased her degree. Dr. Tarver was understandably offended at this impertinence and demanded that Respondent sign in. He did so and proceeded to report to his work site at the school. As had Mr. Smith four months earlier, Dr. Tarver contacted Respondent's supervisor and requested that he not assign Respondent to her school again. Like Mr. Smith, she had never encountered such behavior from a school district employee. Following a conference for the record on February 13, 2006, Robert Brown, the Administrative Director of Maintenance Operations recommended that the School Board terminate Respondent's employment. On August 2, 2006, the School Board suspended Respondent and initiated proceedings to terminate his employment. Respondent's behavior disrupted the business of the school in two respects. First, as the behavior transpired, school staff and parents were distracted from their business at the school, but, each time, the behavior was worse than a mere distraction. Each of these incidents--separated by only four months--combined a breach of security with a menacing display of aggressive behavior. After failing to conform to simple security procedures, Respondent did not immediately comply, but instead became confrontational, so as to suggest to school staff that the security breach was escalating. Second, both principals found it necessary to ensure that Respondent never perpetrate another disruption at their schools, so they reasonably demanded that Respondent's supervisor never reassign Respondent to their schools. The supervisor agreed to do so, but this left two schools in the region without a mason anytime that the other mason was unavailable due to another assignment, vacation, or illness. Masonry work sometimes constitutes emergency repairs and any delay in performing the work could perpetuate a dangerous condition. Also, some masonry work is a two-person job, and, for such jobs at the two affected schools, Petitioner would have to find a mason from another region and assign him or her out-of-region. For these reasons, Respondent's actions constituted willful neglect of duty, unseemly and abusive conduct, and gross insubordination. Twice in four months, Respondent ignored simple security procedures at schools to which he had been assigned to work. Twice in four months, Respondent refused to comply with these procedures when asked to do so by school staff and instead angrily confronted these school employees. Instead of getting to work at the school sites to which he had been assigned, Respondent disrupted the schools and presented himself as a risk to the security of the students, staff, and parents at both sites. Respondent's confrontation with the two principals, who were trying to restore order and ensure compliance with school security rules, was gross insubordination, as was his failure to comply with the simple, sensible directives in the reprimand that followed the first incident. Additionally, the inability of Petitioner to assign Respondent to two schools within his region impeded his effectiveness as an employee and meant that the performance of his duties would be deficient, at least in this regard. The collective bargaining agreement between Petitioner and the Dade County School Maintenance Employee Committee in effect at the time of these events was the 2002-06 contract. This contract did not require progressive discipline, but Article IV of the contract authorized Petitioner to terminate employees for "just cause." Article XI, Section 1.a of the contract provides for discipline due to the violation of Respondent's rules.
Recommendation It is RECOMMENDED that The School Board of Miami-Dade County, Florida enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of April, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of April, 2007. COPIES FURNISHED: Dr. Rudolph F. Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Honorable Jeanine Blomberg Interim Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ana I. Segura, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Robert Holland, Esquire Law Offices of Robert W. Holland 5955 Northeast Fourth Court Miami, Florida 33137
The Issue Whether Petitioner has just cause to terminate Respondent's employment based on determinations by two licensed psychologists that Respondent was not fit to perform her duties as a classroom teacher.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. A superintendent of schools has the statutory responsibility and obligation to recommend the placement of school personnel and to require compliance and observance by all personnel of all laws, policies, and directives of the school board, the State of Florida, and the federal government. In this proceeding, the Superintendent of Schools for the Broward County School District has recommended to the School Board that Respondent's employment be terminated because she is not fit to perform her duties as a classroom teacher. Respondent is a classroom teacher with approximately ten years of teaching experience. For the 2008-09 school year, Respondent taught at Seminole Middle School. Respondent received a satisfactory evaluation for that school year. Respondent was assigned to teach a second grade class at Everglades for the 2009-10 school year pursuant to a professional service contract. The School Board has adopted Policy 4004, which provides for mandatory physical and/or psychological examinations for employees, as follows: AT ANY TIME DURING THE COURSE OF EMPLOYMENT WHEN IT SHALL BE DEEMED ADVISABLE BY THE SUPERINTENDENT/DESIGNEE, AN EMPLOYEE MAY BE REQUIRED TO TAKE A PHYSICAL OR PSYCHOLOGICAL EXAMINATION. RULES The Board authorizes the Superintendent to establish procedures to carry out the intent of this policy. The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Division of Personnel, Policies, Government and Community Relations. Where the employee is found to be unable to function satisfactorily, the Division of Personnel, Policies, Government and Community Relations shall take appropriate action. On October 14, 2009, Eliot Tillinger, principal of Everglades, sent the following memo to Craig Kowalski, who was serving as the Acting Executive Director of SIU: As per the above the above referenced policy [Policy 4004], a "fit for duty" evaluation is being requested for Donna Lichi. Attached please find her job description as well as supporting documentation. Multiple concerns regarding the safety and welfare of the students have arisen from staff and parents in the school community. As reflected in the memo, Mr. Tillinger attached documentation supporting his request. This documentation was prepared by Mr. Tillinger (or by his staff at his direction), and documented his personal observations plus complaints he had received from parents and school staff. Mr. Tillinger did not formally observe Respondent, nor did he conduct a formal evaluation of her performance. His observations were from his customary "walk-throughs," which entailed unscheduled visits to classrooms and observations of approximately five minutes a visit. Of particular concern to Mr. Tillinger were reports that on at least two occasions, Respondent left children who were supposed to be under her supervision without supervision. One child was observed urinating on a bush while on the playground. Instead of supervising her class, Respondent talked on her cell phone. On another occasion, Respondent permitted two children to walk unsupervised through an area that parents were driving through to pick up their children after school. The children were returning from a park adjacent to the school. The children had gone to the park to retrieve an object one of them had left during recess. Respondent exposed those two children to danger by allowing them to go to the park unsupervised. No formal disciplinary action was taken against Respondent following either incident. Mr. Tillinger received a report from parents of children in Respondent's class that Respondent's interaction with them was unusual. One parent told Mr. Tillinger that Respondent was self-absorbed at the "meet your teacher" conducted just before school started and at the "open house" conducted shortly after school started. On these occasions, Respondent bragged about what good a teacher she was and boasted of her personal achievements and accolades. That parent opined to Mr. Tillinger (and testified at the formal hearing) that he did not think Respondent was aware of what was happening in her classroom because at a parent-teacher conference she did not know that his daughter could not log onto the classroom computer for several days. That parent also complained to Mr. Tillinger that Respondent required her students to wear shirts of a certain color on different days of the week, a practice that was not sanctioned by the school administration. The parent also reported that Respondent refused to complete a questionnaire a psychologist had asked Respondent (as the child's teacher) to complete as part of an evaluation of the student. Another parent reported to Mr. Tillinger that Respondent's behavior during a parent-teacher conference was bizarre. This parent reported that Respondent had "almost a catatonic stare" during the conference. The parent also reported that in a subsequent telephone conference, Respondent abruptly hung up on the parent during the middle of the conversation. Mr. Tillinger characterized the number of complaints and the nature of the complaints as being "unusual." Martha Machado was the grade chair for the second grade at Everglades. Ms. Machado met with the other second grade teachers on a weekly basis to discuss any concerns or issues. Although she attended these meetings, Respondent was never engaged in these meetings by asking questions or contributing comments. Ms. Machado met with Respondent prior to the beginning of school to help her settle into her classroom. During that first meeting, Respondent removed from her classroom all chairs that were not colored blue and replaced them with blue chairs taken from other second grade classrooms. Respondent thereafter decorated the walls of her room completely in blue. Ms. Machado considered this behavior to be unusual. Ms. Machado gave Respondent detailed lesson plans at the beginning of school and provided Respondent with copies of lesson plans Ms. Machado used for her own class. Ms. Machado offered to assist Respondent and was available to answer any questions. Until October, Respondent did not ask any questions as to the lesson plans. The lesson plans were provided to assist Respondent. Ms. Machado told Respondent to use them, modify them, or do whatever else she wanted with them. In October, Respondent admitted to Ms. Machado that she did not understand her lesson plans. Respondent also stated that she had not received copies of the lesson plans.1 Respondent had no explanation for why she did not tell Ms. Machado sooner that she did not understand the lesson plans. When a student was transferred from one classroom to another classroom, the student was to take his or her books and workbook to the new classroom. After a student was transferred from Respondent's classroom to another second grade classroom, the new teacher sent the student to Respondent's classroom to get the student's books and workbook. After the student retrieved the books and the workbook, the student returned to the new classroom. Soon thereafter, Respondent entered the new classroom, took the workbook from the student, and returned to her classroom. When informed of the incident, Ms. Machado told Respondent to return the workbook to the student. Ms. Machado observed that Respondent was overly complimentary to her, copied her hairstyle, and purchased a purse identical to Ms. Machado's purse. Ms. Machado found this behavior to be strange. Ms. Machado discussed her concerns about Respondent with Mr. Tillinger. Mr. Tillinger also received reports that on more than one occasion, Respondent dismissed her class 15 minutes prior to the end of the school day and had her class wait in the stairwell, singing songs and playing games until the final bell rang. In response to his observations, the reports he heard as to Respondent's behavior, and his concerns as to student safety, Mr. Tillinger assigned Melissa Renedo, an intern teacher, to Respondent's classroom. Ms. Renedo was instructed to assist Respondent, and to let Ms. Machado know if anything in Respondent's class made her uncomfortable with respect to the students' safety, welfare, or academics. Respondent's classroom was disorganized. She had no reading groups, she had no lesson plans (other than those given to her by Ms. Machado), and she would interrupt lessons to permit students to go to the "treasure box" to get a trinket as a reward for wearing a certain colored shirt. Ms. Renedo witnessed Respondent pick up a student in the middle of a lesson, comment on how he smelled, and asked him about his cologne. During a reading lesson, Respondent called the parent of the student with the cologne to see if she could go to the parent's house for dinner. Ms. Renedo observed that Respondent frequently stopped during a lesson to wipe down door handles, computers, and desks with Lysol. One morning two students who said they were fifth grade students came to Respondent's classroom at her request to assist her with setting up a bulletin board. When it was time for lunch, Respondent took her class to lunch, leaving the two fifth grade students unsupervised in the classroom. When Ms. Renedo questioned Respondent about leaving the students unsupervised, Respondent replied that it would be okay and that they were there to help out. Ms. Renedo's observations and concerns were conveyed to both Ms. Machado and Mr. Tillinger. Mr. Tillinger had sufficient justification for requesting the fit for duty evaluation on Respondent dated October 14, 2009.2 The documentation submitted with the request was sufficient justification for SIU to deem it "advisable" to require Respondent to submit to a psychological evaluation. At all times relevant to this proceeding, the Superintendent of Schools had in effect the following Policy 4004 procedures relating to fitness for duty determinations: Fit for Duty Determination Procedures The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee. SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home or at an alternate site with pay, depending on circumstances (i.e. active case file/investigation). The affected employee shall select the name of a medical doctor psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 24 hours. SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor's office and to the employee of appointment confirmation. Letter is sent to the doctor explaining billing instructions, and 'Fit for Duty Evaluation' report of findings. The doctor as delineated in the policy will conduct Pre [sic] evaluation at District expense. Note: a 2nd Opinion will be at the employee's expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. A third evaluation will be mandated if previous two (Pre & 2nd Opinion) are contradicting and will be at District expense and will be binding by [sic] all parties. Doctor determines if employee is 'Fit for Duty' or [is] not [fit] for duty. Where the employee is found 'unfit for duty' the Executive Director of Professional Standards & Special Investigative Unit shall take appropriate action per the recommendation of the doctor, subjecting employee to a Post-evaluation by the same doctor making the initial evaluation. The Post-evaluation ought to occur within 90 days of the initial evaluation. If a doctor determines that the employee is 'Unfit for Duty', an administrative reassignment letter is prepared changing the employee's pay status to 'at home without pay (PLV)'. The employee is given information to call the Leave Department to apply for any paid leave accrued, and/or any other leave types per SBBC Policies that they are eligible for. Also, a Formal Referral to EAP is prepared for follow-up. Based on the progress and/or compliance with EAP's recommendations, a Post Evaluation is scheduled within the 90- day reassessment period. If employee is unfit to return to work in the Post Evaluation, then the employee is recommended for termination (School Board Agenda is prepared for the next Board Meeting). Note: 2nd Opinions on the Post evaluation will be at the employee's expense, if requested. Third evaluation, if required will be at District expense and will be binding by [sic] all parties. Employee and school/work site are notified of doctor's fit for duty status via certified mail. (Note: Confidential Doctor's report will only be distributed to the employee). The immediate supervisor is notified as well. However if the doctor has follow-up recommendations, then a Formal Referral to Employee Assistant Program (EAP) is prepared by SIU (i.e. mental health follow-up or other referrals as appropriate. If employee is found Fit for Duty, a certified letter is sent to the employee with instructions to return to work. The immediate supervisor is notified as well. Richard Mijon delivered a letter to Respondent on October 16, 2009, informing her that she would be required to submit to a fit-for-duty evaluation. Respondent chose Dr. Rick Harris to conduct the initial evaluation. Dr. Harris found Respondent not to be fit for duty. Because of that finding, Dr. Harris also performed a re-evaluation. Prior to the evaluations, Mr. Mijon provided Dr. Harris with the documentation attached to Mr. Tillinger's request and the results of other investigations by SIU of Respondent's behavior that occurred before she was transferred to Everglades. As part of the initial evaluation, Dr. Harris examined Respondent on November 2 and December 15, 2009, and on January 6, 2010. His report, dated January 22, 2010, is part of School Board's Exhibit 4. After discussing the results of the tests he administered and his clinical interview, Dr. Harris' report summarized his findings and explained his reasons for those findings. His testimony at the formal hearing was consistent with his report. Dr. Harris found that Respondent was not fit for duty. On June 7, 2010, Dr. Harris conducted his re- evaluation of Respondent. His report, dated August 12, 2010, is also part of School Board's Exhibit 4. After discussing the results of the tests he administered during the re-evaluation, and his clinical interview, Dr. Harris' report summarized his findings and explained his reasons for those findings. His testimony at the formal hearing was consistent with his report. Dr. Harris found that Respondent continued to be unfit for duty. The undersigned finds Dr. Harris' testimony to be clear, professional, and persuasive. Petitioner proved that Respondent was not fit for duty on the initial evaluation and re-evaluation by Dr. Harris. Pursuant to the School Board's Policy 4004, Respondent was entitled to seek a second opinion by being evaluated by a separate School Board approved psychologist of her choosing, but at Respondent's expense. Respondent chose Dr. Grace Sidberry, a licensed psychologist. Dr. Sidberry evaluated Respondent on September 8 and 14, 2010. Her report dated September 14, 2010, is contained in School Board's Exhibit 9. After discussing the results of the tests she administered during the re-evaluation, and her clinical interview, Dr. Sidberry's report summarized her findings and explained her reasons for those findings. Her testimony at the formal hearing was consistent with her report. Dr. Sidberry found that Respondent was unfit for duty. The undersigned finds Dr. Sidberry's testimony to be clear, professional, and persuasive. Petitioner established by a preponderance of the evidence that Respondent was not fit for duty as a classroom teacher as of September 14, 2010. Drs. Harris and Sidberry opined that Respondent's fitness for duty may be restored following appropriate treatment for the conditions that render her unfit for duty. Respondent would not benefit from a performance development plan before her fitness for duty is restored. The School Board followed its applicable rules in processing the "fit for duty" request submitted by Mr. Tillinger.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 20th day of July, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2011.
The Issue Whether the Petitioner demonstrated just cause for the dismissal of the Respondent from employment as a teacher.
Findings Of Fact In a Joint Pre-Hearing Stipulation, the parties agreed to the following facts: At all times material hereto, Respondent, Marlon J. Pearce was employed by Petitioner as a school teacher within the school district of Miami-Dade County, Florida, assigned to Lawton Chiles Middle School. Respondent was employed by Petitioner pursuant to the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, and subject to the rules and regulations of the State Board of Education and of the School Board in accordance with § 1012.33(6)(a), Fla. Stat. (2002). At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to § 4(b) of Article IX of the Constitution of the State of Florida and § 1001.32(2), Fla. Stat. (2002). On November 5, 2000, a conference-for- record (CFR) was held with the Respondent by the principal at North Glade Elementary School. On March 7, 2001, another CFR was held with the Respondent by the principal at North Glade Elementary School. On March 15, 2002, a CFR was held with the Respondent at the School Board's Office of Professional Standards. On May 28, 2002, a meeting was held with the Respondent at the School Board's Office of Professional Standards. At its regularly scheduled meeting of June 19, 2002, the School Board took action to suspend and initiate dismissal proceedings against the Respondent. John Schoeck is currently and for the last two years has been the Principal of North Hialeah Elementary School. For the preceding five years, he was the Principal at North Glade Elementary School. While at North Glade, Mr. Schoeck hired the Respondent, Mr. Pearce, to teach physical education. (Tr. 13) After a November 5, 2000, conference-for-record (CFR) with Mr. Pearce, Mr. Schoeck issued certain directives to Mr. Pearce. Among those directives were the requirement for professional conduct with parents, students and staff, and prohibitions on using profanity, on making verbal or physical threats to parents, students or staff members, and on having verbal or physical confrontations with coworkers. (Tr. 18, 208- 209, P-6) Mr. Schoeck also referred Mr. Pearce to the Employee Assistance Program based on interpersonal behavior observed on the job. (Tr. 9, P-5) An allegation that the Respondent hit a student in the back with his fist was unsubstantiated, in March 2001. The Respondent testified that the student was loud, easily influenced and had an attitude. (Tr. 185) Another student at North Glade Elementary School became involved in a rock-throwing incident with the Respondent. The Respondent described the student as defiant. He testified that after the student threw a rock and hit him, he grabbed her arm to make eye contact, but after she "started going wild and shaking," he let her go and she fell to the ground. There was testimony that her shirt was torn when she reached the principal's office, but the Respondent denied that it was ripped when she left him. (Tr. 186-188, 212-213) On March 7, 2001, Mr. Schoeck held another CFR with Mr. Pearce, as a result of certain allegations by a student and his mother that Mr. Pearce called the student a "punk." Mr. Schoeck found Mr. Pearce insubordinate and reiterated the directives issued after the November conference. (Tr. 24-25, 209-210, 215-216, P-9) The Miami-Dade Schools Police Department ("the school's police") investigated several students' complaints alleging that Respondent had subjected them to corporal punishment. The police found the complaints to be unsubstantiated. Each time there was an incident, the Respondent was reminded of the School Board's policy prohibiting corporal punishment. (Tr. 32-33) Late in the 2000-2001 school year, the Respondent was reassigned to the region office and, subsequently, for the 2001- 2002 school year to Lawton Chiles Middle School (Tr. 33 and Joint Pre-Hearing Stipulation) On November 7, 2001, a charge of verbal abuse, for calling a student "stupid," was substantiated against the Respondent. (Tr. 219, P-17) The Respondent testified that what he said was "stop acting stupid" because the student was loud and saying she knew why he had been fired from his other job and was quoting the Bible. (Tr. 197-198) He also said that, in the heat of the moment, he also called her stupid. (Tr. 200) On November 8, 2001, the Respondent violated the School Board policy against "unseemly conduct, or the use of abusive and/or profane language in the workplace," by using the word "nigga." (Tr. 60-67 and P-16) The Respondent testified that the racial slur was made "under his breath" and not intended to be heard by students. He testified that what he said was "you're going to drive a nigga crazy," and that the comment was directed to himself, not the student. (Tr. 195) The Respondent testified that he told a student "If I was your dad, I would ring your neck," because the student was disruptive, defiant and not following directions. (Tr. 195-196, 218-219) In December 2001, a student was playing with a toilet valve and water was squirting out on the floor in the boys' locker room. After the student left the stall and walked over towards him, the Respondent grabbed him by the neck and shoved him. After an investigation by the school's police, the charge was found to be substantiated. (Tr. 69-88, 113-117 and P-18) The Respondent testified that he grabbed the student's shoulder but did not push him. (Tr. 201-202) Although the student had stopped spraying water at the time he confronted him, the Respondent considered his intervention appropriate because the wet floor created a safety concern. (Tr. 205, 214-215, 217-218) At the same time, other students began slamming locker doors in the locker room. The Respondent called the students involved "a bunch of assholes," and said "If you do this one more time, I could lose my job for hurting you." (Tr. 69-88, 113-117 and P-18) About the same time, the Assistant Principal at Lawton Chiles Middle School, Alberto Iber, received a complaint from the parents of another student. While he was playing with an injured student's aluminum walker, the Respondent grabbed him to try to retrieve the walker and pushed him to the ground. He also said to the student "fuck you." Charges of corporal punishment and the use of profanity were substantiated. (Tr. 93-112 and P-19) The Respondent admitted that he pulled the student down after saying "This is going to be the final time I ask you to sit down." (Tr. 204) He said he used the "f" word under his voice. (Tr. 205) When the Respondent was first assigned to Lawton Chiles Middle School, the Principal, Karen Robinson met with him to discuss the previous incidents at North Glade Elementary School and to discuss expectations that he would abide by the School Board's rules. Each time there was an incident involving the Respondent, Ms. Robinson called the District's Professional Standards Office which referred the matters to the school's police to conduct the personnel investigations. (Tr. 119-133, 219-220) After the fourth personnel investigation at Lawton Chiles Middle School, Ms. Robinson contacted the personnel director for the region. She was concerned that the incidents involving the Respondent were escalating from inappropriate verbal to more serious physical interactions with students. As a result, she recommended that Respondent's employment be terminated. (Tr. 135-136 and P-21) Barbara Moss, the District Director in the School Board's Office of Professional Standards, agreed with Ms. Robinson's and the region personnel director's recommendations to terminate the Respondent's employment. (Tr. 164-165, P-22 and 23) Ms. Moss, in turn, recommended that the School Board terminate Respondent's employment. She met with Respondent to notify him of the proposed action. (Tr. 165-166) The Superintendent of Schools also recommended that the School Board take action to terminate Respondent's employment and notified the Respondent of that recommendation. (P-24 and 25) The Superintendent also notified the Respondent when the School Board, at its meeting on June 19, 2002, took action to suspend and initiate dismissal proceedings against him for misconduct in office, gross insubordination, willful neglect of duty, and violation of School Board Rules 6Gx13-4.108, on Violence in the Workplace; 6Gx13-4A-1.21, on Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment - Prohibited. Notice of the availability of an administrative hearing to contest the action was also included. (P-24 through 26)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order sustaining Respondent's suspension without pay on June 19, 2002, terminating Respondent's employment, and denying the Respondent back pay. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 2nd day of May, 2003. COPIES FURNISHED: Merritt R. Stierhelm, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 1244 Turlington Building Tallahassee, Florida 32399-0400 Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade - Law Department 2200 Biscayne Boulevard, 5th Floor Miami, Florida 33137
The Issue The issue in this case is whether Respondent's employment contract with Petitioner should be terminated for violation of School Board policies.
Findings Of Fact Petitioner is the local school board responsible for hiring, firing and overseeing all employees working for the School Board and/or within the Lee County Public School system (also called the "School District" herein). Respondent is an employee of the School Board, serving as an electronics field technician in the School Board's maintenance department. Respondent has worked for the School Board off and on since 1996, when he was a school bus driver. He has been an electronics technician since 2000. In that position, Respondent oversees the maintenance and repair of clocks, alarms, intercoms, scoreboards, sound and lighting systems, burglary systems, and the like for all schools within the School District. Respondent has never received any form of discipline from the School Board. His record is clear, and he has been commended for his work. His work ethic was viewed by others as consistent with that of similarly-situated employees (although Respondent may take more breaks than others). School District maintenance workers work an eight-hour work day, commencing at 7:00 a.m. (per provisions of the SPALC Contract and Collective Bargaining Agreement). Each worker is expected to arrive at the maintenance area on Canal Street (hereinafter "Canal Street") and be ready to commence work by 7:00 a.m., each morning. The work day generally starts with a briefing of sorts to make sure each worker is aware of his/her tasks for the day. After the briefing, workers pick up tools and supplies from various locations around the Canal Street area and then proceed to the first school site requiring performance of an assigned task. A work day for Respondent could involve driving to any one of the numerous school campuses within the School Board's jurisdiction. Workers are given 30 minutes for lunch each day, including the time it takes to drive to and from the lunch site. In addition, workers are allowed two 15-minute breaks, one in the morning and another in the afternoon. Again, the break time includes the time taken to drive to a break site, if the employee decides to take a break at other than the place he/she is working at that time. Employees are not permitted to do personal business or make unauthorized stops during the work day without prior permission from a supervisor. Respondent is a member of the U.S. Naval Reserve and currently holds the rank/level of E5. He attends regular weekend drills each month and also spends two weeks each year on temporary active duty. Respondent has been in the reserves throughout his tenure with the School Board. There has never been an issue between Petitioner and Respondent concerning Respondent's military status or his taking two weeks each summer to attend to his military duties. Respondent is proud of his military service, as evidenced by the fact that he wore his military uniform during both days of the final hearing.1 In May 2008, Respondent spent 17 days on active duty, serving in Bahrain. This was Respondent's active duty requirement for calendar year 2008. However, he then volunteered for an additional period of active duty in July 2008. This second active duty stint was done in furtherance of his military career and at the suggestion of a superior officer. It was strictly voluntary, but Respondent felt somewhat compelled to "volunteer" based on his superior's comments. Respondent then did his second active duty stint beginning June 28, 2008, and ending July 27, 2008. This period of time coincided with the maintenance department's busiest time for its electronics technicians. The maintenance department annually used the time in between school terms to get various maintenance items completed while it would be the least disruptive to students in the classrooms. The summer period is used to "clean up" things that remain pending from the school year. It is clear that Respondent's supervisors were not happy that Respondent had volunteered to be absent during this busy time, but Respondent was allowed to go on active duty anyway. This left the School Board short-handed as to its needed electronics technicians for that period of time. Respondent's supervisor expressed concern to Respondent about this second period of active duty, specifically that it was occurring during the summer break. Respondent recognized the strain this additional leave put on his co-workers and apologized for that fact. Respondent assured his supervisor it would not happen again. Upon his return from the voluntary active duty, Respondent was told that he was being placed on "suspension of driving privileges," meaning that he could not drive School Board vehicles until further notice. This suspension was based on information gleaned from review of data generated by a new tracking system being used in School Board maintenance vehicles (which will be discussed below). Respondent is of the opinion that the suspension was some sort of retaliation for his having gone on the second active duty tour during June and July. The Global Positioning System--Background Beginning in May 2008, the School Board decided to install global positioning system (GPS) devices in all of its maintenance vehicles. The installation began with 50 randomly selected vehicles of the 150-vehicle fleet. The purpose of the GPS devices was to track School Board vehicles and assure that all vehicles were being utilized properly and in accordance with School Board policies. This measure was prompted by repeated complaints from the public about maintenance vehicles being seen involved in non-school activities or at non-school locations. The GPS system in Respondent's maintenance vehicle was installed on May 22, 2008. The signal from the GPS was instantaneous, but required calibration and installation of certain software before it could be effectively utilized. The GPS became fully functional on June 20, 2008, at 10:07 a.m. The GPS system tracked the location, speed, and duration of stops for the vehicle. This data was maintained on a computer server which could print maps showing a vehicle's movements on any given day or time. The maps could be annotated with the vehicle's speed, length of stay at any one location, and actual driving route. On or about June 27, 2008, William G. Moore, director of School Support for the School Board, was being given a course on the use of the new GPS system and how it worked. During his training, Moore randomly selected some vehicles to review, solely for the purpose of ascertaining how the system tracked and recorded information. One of the vehicles Moore randomly selected was vehicle No. 423, which turned out to be Respondent's work van. Moore did not know Respondent personally and did not know to which of the 150 or so School Board vehicles any one person was assigned. Moore then selected June 26, 2008, randomly as a record to review as part of his training. The June 26, 2008, record for vehicle No. 423 immediately raised red flags in Moore's mind. He observed that the vehicle was at a non-school site for over three hours (although it was later determined to be a training site and a legitimate stop). The vehicle was also shown entering a residential community (although again it was later determined that the driver had permission for that trip). However, based on his initial determination that something was amiss and not having any explanation for those instances, Moore decided to more fully examine the route history for vehicle No. 423. First, he determined that this vehicle was assigned to Respondent. (The vehicle will hereinafter be referred to as the work van.) Moore's further investigation turned up a number of questionable stops and trips by the work van during the period June 20 through June 27, 2008. The findings of his investigation will be set forth in pertinent part below on a day-by-day basis, coupled with explanations from Respondent as to each day's activities. Friday, June 20, 2008 At 10:07 a.m. (when the GPS first started working), the work van was departing from Ft. Myers High School ("Ft. Myers High") en route to Estero High School ("Estero"). Upon arrival at Estero, the van remained parked for five minutes, then left the parking lot and drove around the building to the front entrance of Estero for a period of one minute. Leaving Estero, the work van headed to a residential neighborhood known as the Bimini Circle Subdivision, where it stayed for 11 minutes. The work van then proceeded to a 7-11 Store where it remained for 35 minutes. The next stop was back at Estero where the work van remained for one hour and 46 minutes. At 2:00 p.m., the work van left Estero, stopped briefly at the 7-11 Store, then returned to Canal Street at 2:59 p.m. The School Board perceived several violations of policy gleaned from the information on the GPS for the work van during the June 20, 2008, work day: First, the work van was at Estero for a total of two hours and 13 minutes on this date. The total time at Ft. Myers High for this date is not detailed by the GPS, but would presumably be approximately two and a half hours, i.e., allotting time for driving from Canal Street up until the GPS turned on at 10:07 a.m. Respondent's daily activity log indicates five hours at Estero and three hours at Ft. Myers High. Respondent took two unauthorized stops at a store, presumably for personal reasons, and then spent 11 minutes at a residence during work hours. Respondent took in excess of 30 minutes for his lunch hour (35 minutes at a location, plus an undisclosed amount of time driving to and from that location). Respondent took a longer route back to Canal Street than necessary, presumably wasting time. (Employees were expected to work the entire day, then return to Canal Street precisely at 3:00 p.m. A 30-minute debriefing session, return of tools, etc., would occur and then employees would be released from duty at 3:30 p.m. Employees were told repeatedly NOT to return to Canal Street until 3:00 p.m.) Respondent explained his actions and refuted the School Board's concerns as follows: Upon leaving Canal Street that morning, Respondent went directly to Ft. Myers High and remained there until 10:07 a.m. The rest of his day, approximately five hours, was dedicated to work at Estero, but included travel time, breaks, and lunch. The two hours and 13 minutes actually at Estero should be supplemented by driving time to the school from Ft. Myers, driving time to his breaks and lunch, driving time to and from his personal errand, and driving time back to Canal Street. Respondent remembers asking for and receiving permission to stop by his wife's house (the residence in the Bimini Circle Subdivision) to retrieve his wallet. The stops at 7-11 Stores were for lunch and two allowable breaks. The longer route back to Canal Street was taken in order to avoid an accident on the shorter route. During June of 2008, technicians would fill out their daily work logs using rounded estimates of time. They made no attempt to precisely state exact periods of time spent at any one job site. Rather, the daily logs were a very general statement of which job sites had been involved in the employee's work that day. (This procedure has subsequently changed, but was extant at all times relevant hereto.) It is clear Respondent took a longer than allowable lunch break on this date. Further, the time taken for breaks, if drive time was included, was in excess of the allotted amounts. It is clear Respondent was actually at Estero for only about half the time recorded on the daily work log. However, under the procedures in place at that time, the work log time entry was not dispositive of his actual time at the site. Monday, June 23, 2008 On this date, the School Board gleaned the following violations of policies from its review of the GPS log: Respondent was at Estero for two hours and nine minutes, but his daily work log indicates six hours at Estero and two hours at Gateway Elementary. The work van made stops at McDonalds and Bank of America on the way to Estero, then at the Bimini Circle address for eight and a half minutes after leaving Estero. Petitioner says any stops for personal business are strictly prohibited while in a School Board vehicle. After a 47-minute stop at Dairy Queen, the work van then proceeded to Gateway where it stayed for approximately two hours. Upon leaving Gateway, the work van stopped at Home Depot--an unauthorized stop--for about 18 minutes. Respondent provides the following explanation and rebuttal concerning the School Board's concerns for that day: Again, his work sheet indicates the correct amount of time actually at Gateway. The remainder of his day, including all travel, breaks, and lunch, was allocated on this time sheet to Estero no matter how long he was actually there. The stops at McDonalds and Bank of America were simply to allow his co-worker (Sheryl Reed) to get an iced tea and to get money for lunch. Respondent maintains that these types of stops were not specifically prohibited and were common practice. Respondent maintains the stop at his wife's house was his break time (although a stop at McDonalds and Bank of America had already occurred that morning). The 47-minute lunch hour was caused by Respondent simply losing track of time. That is, he admits that it was a longer lunch break than allowed, but it was not done intentionally. The stop at Home Depot was to obtain a coaxial wire needed for the Estero job, but the wire was not available. Employees are allowed to shop at local retail stores to acquire equipment or supplies not available through the School Board. However, all such purchases must be made by way of a purchase card (P-Card) so that purchases can be tracked. There is no P-Card receipt for the Home Depot visit on this date, but Respondent maintains that is because no purchase was made. That is, the coaxial wire he was looking for was not available. Reed said that Respondent made personal purchases from Home Depot and Lowe's on occasion during the summer of 2008 (because he was in the process of remodeling his house). He had purchased floor tiles and other items a couple of times a week that summer. However, she cannot remember whether he purchased anything on that particular date. Respondent admits that he did make purchases of home improvement products during work hours and transported the products in the work van to his house. He does not remember making any such stops for purposes during the week of June 20 through 27, 2008. Tuesday, June 24, 2008 On this date, Respondent's daily work log indicates three hours spent at Gateway and five hours spent at Island Coast.2 The GPS indicates the work van was at Gateway for three hours and at Island Coast for one hour and 40 minutes. The School Board also found the following other policy violations: A stop at Weaver's Corner for 36 minutes and 40 seconds, presumably a long lunch made longer by travel time to and from the lunch venue. An unauthorized visit for eight minutes and 40 seconds at a bank. A visit to a gas station for eight minutes, then a short drive to another gas station for five minutes. Respondent provides the following explanation and rebuttal to the School Board's findings: As before, the extended period of time for the Island Coast job site includes travel, breaks, and lunch. However, it would have been more accurate on this day to have split the two job sites equally. The stops at the gas stations were intentionally made so as not to return to Canal Street before the allotted 3:00 p.m., return time. Respondent does not provide any explanation for the longer than allowable lunch break. Wednesday, June 25, 2008 There were three stops on this date listed on Respondent's daily work log: Island Coast (4 hours), Dunbar Community (2 hours), and Ft. Myers High (2 hours). The GPS indicates the work van was at Island Coast for two hours and 11 minutes; at Dunbar Community for 11 minutes and 20 seconds; at Villas Elementary for one hour and 14 minutes; then at Ft. Myers High for four minutes and 40 seconds. Other perceived policy violations included: A short stop at a bank in the Wal-Mart parking lot upon leaving Canal Street. A lunch stop of 42 minutes and 30 seconds, not counting driving time to and from the restaurant. Another stop at Bank of America for in excess of ten minutes. A short, seven and a half-minute stop at a shopping center. Respondent provided the following in rebuttal and response to the School Board's perceived violations of policy: The quick stops at the banks were not prohibited and were common practice. They may have been part of Respondent's break time on that date. The lunch hour ran over, but was not excessive or intentional. It may have also included part of a break he never took that day. Thursday, June 26, 2008 This is the date that Moore initially reviewed in his training session that raised red flags concerning Respondent's time issues. On this date, the daily work log indicates seven hours in training and one hour at Villas Elementary. The School Board's concerns about this date are set forth above, but would also include: An authorized trip during the lunch hour for Respondent to retrieve a lap top which was being delivered by overnight delivery (so the computer would not be left sitting on the front porch). This trip which took approximately 18 minutes, of which 30 seconds was spent stopped at his house. Respondent also took time for lunch before returning to the training site. A circuitous, out-of-the-way route between the training site and the next job site (Villas Elementary). A short stop at a 7-11 Store and then a longer-than- usual route back to Canal Street. Respondent's explanation and rebuttal to the School Board's concerns were as follows: Respondent had permission to make a quick visit to his home during the lunch hour to see why his home alarm had activated. (He does not remember anything about a lap top or a need to retrieve it.) Respondent says that in the 30 seconds his work van was at the house, he exited the vehicle, walked to the house, unlocked the door and entered, turned off the alarm (which had been activated by his dog, who had escaped from his kennel), put his dog back in its kennel, re-set the alarm and left. Respondent was able to do his personal errand and get to the restaurant and eat lunch with his co-workers within the time (one hour) allotted for lunch that day by the trainer. The circuitous route was for the purpose of delivering some money to his daughter at her school. She was waiting for him outside, and he didn't even have to stop the work van to hand off the money. Rather, his daughter reached out and grabbed the money as he rolled past. The stop at the 7-11 Store was to use the rest room. Respondent's testimony concerning the stop at his house is not entirely believable. It would seem to take more than 30 seconds to accomplish the things that he did. However, inasmuch as he made the stop and was still able to join his co-workers in time for lunch, the reason for his home visit is immaterial. Also, the rolling delivery of money to his daughter is very unusual, but there is no evidence that the exchange did not take place in that fashion. Friday, June 27, 2008 This day's daily work log indicates three work sites: Dunbar Middle School (4 hours), Ft. Myers High (2 hours), and Cypress High School (Cypress High)(2 hours). The GPS indicates 33 minutes and 50 seconds at Dunbar; one hour and 47 minutes at Ft. Myers High; and five minutes and 50 seconds at Cypress High. The work van then went back to Dunbar for one hour, 51 minutes and 30 seconds. The School Board's other concerns about time and travel on this date are as follows: After leaving Canal Street that morning, the work van made stops at McDonalds for three minutes and at Lowe's for 15 minutes. There is a stop of one hour and eight minutes at a shopping plaza, presumably a long lunch hour. Respondent's response to the allegations of policy violations for this day are as follows: The McDonalds visit was again an allowable stop (as he understood the policies) for his assistant to get an iced tea. The Lowe's stop was for the purpose of getting concrete anchors needed for a School Board job, but none were available and so no purchase was made on the P-Card. The long lunch hour was just that; he was not thinking clearly because this was just one day prior to going on active duty and he was preoccupied with those thoughts. The extra driving time was due to the fact that after leaving Dunbar, Respondent was called on the radio to go back there for an emergency job. The daily work logs do not correspond exactly with Respondent's work day because that was not the purpose of the logs. The logs were, at that time, simply an indicator of which schools had been visited on any given day. There was no effort by anyone to be exact or precise with the times recorded on the daily logs. The daily logs are essentially of no value in determining where an employee might have been at any point in time on any given day. There is no way to reconcile the GPS times with the daily work logs. Each employee is expected to work a full day. If the number of tasks assigned during the morning meetings at Canal Street did not fill a technician's day, he/she was expected to locate additional work or do work on an on-going project to fill the day.3 Nonetheless, it is often difficult to coordinate a day's activities to make the assignments equate to the exact hours and minutes in a work day. A large part of an employee's time during the work day is spent driving his/her vehicle. The driving time is supposed to be factored into the time spent on a particular work site. Thus, if it took 30 minutes to get to a work site, that time would be added to the time spent actually at the site. Then, when driving to a subsequent work site, the drive time would be assigned to that next site, etc. Employees are on their honor to take breaks and lunch only when allowed and for the time allotted. There is no time clock, so each person must attempt to keep time themselves so as to honor the allotted times. This is often difficult due to slow service at a restaurant, inability to take breaks at a particular time, or other factors. The GPS system has provided the School Board with an effective tool for monitoring its employees' movements and location. However, at all times relevant hereto, the GPS system was in its infancy and the School Board was still learning how to assimilate and read the data generated by the system. Thus, Respondent's activities from June 20 through June 27, 2008, were examined in a way no other employee's had been looked at heretofore. It is, therefore, hard to make a comparative determination of Respondent's actions versus an established norm. Nonetheless, the School Board's findings are supported by the GPS data. That is, the daily work logs are not consistent with time actually spent at particular job sites. Respondent's lunch breaks exceed the allotted 30-minute time period almost every day that was examined. There are stops at local establishments that are not part of the employee's work duties. Some of the routes taken by an employee are not the shortest routes, although it is impossible to ascertain whether they are the best routes based on other extraneous factors. The time spent on breaks, versus travel time, is hard to ascertain with any degree of certainty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, rescinding the notice of termination and imposing a less stringent penalty, e.g., a period of probation, a letter of reprimand and/or some remedial training, against Respondent, Christopher Rasmussen. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2009.
