The Issue Did the Hendry County School Board (Board) have just cause to terminate Respondent from her employment as a paraprofessional teacher's aide?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent was employed by the HCSD as a paraprofessional teacher's aide at LMS. The employment relationship between the Board and Respondent is subject to the terms and conditions of the Collective Bargaining Agreement Article 8, Section 8.013, Collective Bargaining Agreement, provides that "when an employee has completed three (3) years of the past five (5) with satisfactory service with the Hendry County School Board . . . and has been appointed for a subsequent year, he [sic] will be eligible for continued employment status, which status will continue year to year unless the Board terminates the employee for just cause (Emphasis furnished). Respondent was first employed with the HCSD on August 18, 1986, and worked continuously through May 25, 1999, when she was terminated. Since Respondent achieved "continued employment status," she can only be terminated for "just cause." The Board terminated Respondent for "failure to perform assigned duties in a satisfactory manner" and "other sufficient cause" under School Board Policies and Procedures 218. There were no written evaluations of Respondent's performance accomplished during the first 9 years of Respondent's employment with the HCSD because the Board did not adopt its current policy until approximately 1996. However, there is no evidence that Respondent's work performance was unsatisfactory during the first 9 years of her employment with the HCSD. Respondent worked at LMS for each of those nine years of her employment with the HCSD and was routinely re-appointed for each ensuing year. The first 2 years of her employment, Respondent was assigned to work with students that were classified as "trainable mentally handicapped." Respondent had to assist these students in learning rudimentary skills such as brushing their teeth and changing their underwear. From the fall of 1988 until the spring of 1992, the equivalent of 4 school years, Respondent was assigned to the "Time Out Room." The assignment to the "Time-Out Room" was not punitive in nature, or the result of unsatisfactory work performance by Respondent. Disruptive students that caused a problem in the classroom were sent to the "Time-Out Room." The students went in the "Time-Out Room" for one period after which they usually would return to their regular class. Although Respondent was employed as a "Teacher's Aide" for exceptional education students with special needs she did not assist a teacher, but ran the "Time-Out Room" alone. After 4 years working in the "Time-Out Room," Respondent was assigned to Internal Suspension. The "Time-Out Room" was eliminated, and replaced with Internal Suspension. Internal Suspension was used as a form of discipline for students who violated school policy. Students were sent to Internal Suspension anywhere from 2 to 10 days. Internal Suspension was conducted in a double-wide trailer behind LMS. Respondent again was by herself in Internal Suspension and was not assisting a teacher. The first documentation of any performance deficiency by Respondent consists of a Procedure for Improvement form and a Special Non-Instructional Personnel Evaluation form, both dated January 22, 1996. The forms were prepared by James C. Allen, Principal of the LMS. The Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent achieved a "satisfactory" designation for 6 areas and a "Needs Improvement" in "Quality of Work" and "Work Attitude." The deficiencies specified in the Procedures for Improvement form are: "Harshness in speaking with staff and students, assisting students with academic work, unacceptable activities in classroom, needlepoint, police scanner." The Procedures for Improvement form provided that Respondent had the "95/96 school year" to improve, and that Mr. Allen would "Recommend dismissal" if the deficiencies were not improved. Respondent successfully improved her performance. On March 21, 1996, Mr. Allen wrote a letter to Respondent's union representative, with a copy to Respondent, stating that "I too am optimistic that improvement has occurred." On April 1, 1996, Mr. Allen wrote directly to Respondent expressing concern about "complaints/concerns" received about her conduct on a Beta Club trip to Washington, D.C., but stating, in pertinent part: These concerns cannot be overlooked, however, since we initiated procedures for improvement January 22, 1996, which dealt specifically with harshness in speaking with students/staff. Improvement has been noted. It must also be pointed out that Ms Dankanich (Beta Club sponsor) and some staff members felt that you did a good job in controlling your students and watching out for their safety and welfare. (Emphasis furnished). The March and April 1996 letters from Mr. Allen were included in Respondent's personnel file. Also included in the personnel file were letters from the Beta Club sponsor for the Washington, D.C. trip and a chaperone. These letters stated that Respondent spoke to students and adults and conducted herself in an appropriate manner throughout the trip. Respondent's annual "Overall Evaluation" for the 1995-1996 school year was "Satisfactory." Mr. Allen checked the box entitled "Reappoint based on employee's willingness to improve job dimensions not satisfactory." Respondent attained a "Satisfactory" score on 6 out of eight areas listed for job dimension with "Quality of Work" and Work Attitude" checked-off for "Needs Improvement." Respondent was reappointed and returned to LMS for the 1996-1997 school year. Respondent was assigned to assist with the "trainable mentally handicapped" students after having been on her own in the "Time-Out Room" and Internal Suspension for 8 years and working with Exceptional Student Education (ESE) students. This assignment required an adjustment for Respondent. On February 11, 1997, Allen presented Respondent with another Procedures for Improvement form and Special Non- Instructional Personnel Evaluation form. As in the preceding year, the Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent "Needs Improvement" in "Quality of Work" and "Work Attitude." The Procedures for Improvement form identified deficiencies as "failure to perform assigned duties in a satisfactory manner, harshness in speaking with students/staff; unacceptable activities in classroom," and afforded Respondent the 96\97 school year to improve or be recommended for dismissal. Respondent wrote on both forms that she did not agree with them. In April 1997, 12 professional colleagues of Respondent wrote letters of support. These letters were included in Respondent's personnel file. The letters vouch for Respondent's professionalism and many stated that Respondent never was observed to engage in improper conduct or exhibit inappropriate speech or tone of voice. Throughout the second semester of the 1996-1997 school year, Respondent worked 2 class periods as a teacher's aide for Erin Berg-Hayes. Ms. Berg-Hayes was a sixth grade ESE teacher. Ms. Berg-Hayes testified that Respondent's job performance during the 1996-1997 school year was satisfactory. Respondent did not receive annual evaluation for the 1996-1997 school year. Since Respondent was not told otherwise, Respondent assumed she had improved her performance to Mr. Allen's satisfaction. Respondent received a letter of appointment at the end of the 1996-1997 school year and was reappointed for the 1997-1998 school year. For the 1997-1998 school year, the sixth grade students at LMS were moved to the Sixth Grade Center (SGC). Jodi Bell assistant principal at LMS was assigned to administer the SGC. Mr. Allen remained as principal at the LMS which consisted of seventh and eighth grade students. Respondent worked as Erin Berg-Hayes' full-time aide for the 1997-1998 school year. Respondent and Ms. Berg-Hayes were assigned to the SGC. Ms. Berg-Hayes characterized Respondent's job performance during the 1997-1998 school year as "good." When Ms. Bell prepared Respondent's annual evaluation, Ms. Berg-Hayes advised Ms. Bell that she was "pleased" with Respondent's performance and "on the overall [Respondent's] performance was good and satisfactory." Ms. Bell prepared Respondent's 1997-1998 annual evaluation for the 1997-1998 school year. Ms. Bell checked off "satisfactory" in the 8 areas designated for assessment. There were no check marks in the "Needs Improvement" column. On the 1997-1998 annual evaluation, Ms. Bell checked the box for "Satisfactory" as Respondent's "Overall Evaluation," and also checked the box for "Reappoint for next year." In the section entitled "Comments by Evaluator," Ms. Bell wrote: "I have appreciated your willingness to go above what is expected and help wherever help is needed. Keep up the good work!" Respondent returned to the SGC as Ms. Berg-Hayes' Aide in the 1998-1999 school year. Ms. Berg-Hayes and Respondent worked together for the fall semester after which Respondent requested to be reassigned. Respondent attributed this to a personality clash with Ms. Berg-Hayes that started in July 1998. Ms. Berg-Hayes testified that Respondent's performance declined in the 1998-1999 school year. Cathy Lipford, teacher's aide at SGC, who worked together with Ms. Berg-Hayes and Respondent for one period during the entire fall semester in the 1998-1999 school year did not observe a problem with Respondent's work performance. This teachers' aide was aware of some tension between Respondent and Ms. Berg-Hayes. However, this aide testified that Respondent appeared to take the initiative, and assisted students, and the aide never observed Respondent speaking inappropriately to students. Ms. Berg-Hayes did not prepare any documentation of Respondent's alleged performance deficiencies during the fall semester of the 1998-1999 school year. Ms. Berg-Hayes was not consulted about Respondent's performance by Mr. Allen, the former principal of LMS or Mr. Cooper, the current principal of LMS at the time Respondent's performance was evaluated for the 1998-1999 school year, when it was decided to recommend dismissal of Respondent for failure to perform her assigned duties or other sufficient cause. During the spring semester of the 1998-1999 school year, Respondent was assigned as an aide to Dorothy Lomago, a varying exceptionalities teacher for seventh and eighth grade students. Respondent and Ms. Lomago worked together from January 1999 through May 1999. Ms. Lomago had been employed by the Board for 25 years. Prior to Respondent, Ms. Lomago only had had 2 other teaching assistants. Ms. Lomago considers compassion for children and initiative as the most important characteristics for a teacher's aide in special education. Ms. Lomago rated Respondent's performance in those areas as "ineffective." Ms. Lomago considered Respondent adequate in performing clerical tasks such as copying papers and grading papers. Ms. Lomago did not document Respondent's performance deficiencies. Ms. Lomago neither counseled nor corrected Respondent. Likewise, Ms. Lomago never brought to Respondent's attention the things she believed Respondent failed to do or did wrong. Ms. Lomago merely did what she was told to do by Mr. Cooper when he arrived at LMS in March 1999. On March 31, 1999, Respondent went to Mr. Allen's office for her 1998-1999 annual evaluation. R. Scott Cooper, assistant principal, Ms. Jodi Bell, assistant principal, Mr. Allen, and Ms. Davis, assistant principal were present in Mr. Allen's office upon Respondent's arrival. This meeting was terminated after Mr. Allen indicated there was a problem and asked Respondent if she wanted union representation. Respondent replied that she thought it would be wise. Before the meeting on March 31, 1999, Respondent was not aware that her job performance was considered deficient. Respondent had not been told of any deficiencies and had not received any counseling. In March/April 1999, Mr. Allen retired, and was replaced as principal of LMS by Mr. Cooper. Mr. Cooper arrived at LMS some time in the last 2 weeks of March 1999. Respondent and Mr. Cooper had had no professional contact before March 1999. Mr. Cooper met with Respondent on April 16, 1999, for Respondent's 1998-1999 annual evaluation. Mr. Cooper gave Respondent 4 separate Procedures for Improvement forms and an Annual Non-Instructional Personnel Evaluation form. This was Respondent's first notice of her specific performance deficiencies for the 1998-1999 school year. Mr. Cooper never conducted a formal observation of Respondent's job performance. Mr. Cooper based the annual evaluation predominantly on a review of the school board records, and on discussions with Mr. Allen, Ms. Bell, and Ms. Davis. The Procedures for Improvement forms specified the following deficiencies: "Work Attitude - able to successfully work with co-workers and students"; "Initiate Resourcefulness - ability to identify what needs to be done"; ""Dependability"; and "Quality of Work." The forms identified the following means of judging success in overcoming the foregoing deficiencies, respectively. "Supervisors will observe appropriate student/aide interactions in all circumstances"; "decreased necessity for teacher/supervisor to redirect Ms. Bennett's activities"; "Ms. Bennett will demonstrate the ability to effective [sic] facilitate school functions - adhere to work requirements"; and "Higher quality of work - decrease in errors." As a Statement of Assistance Offered, all of the forms provided: "Ms. Bennett may meet with Mr. Cooper weekly to obtain suggestions and assistance" Respondent was given until May 10, 1999, to improve her deficiencies. This was a period of 3 weeks or 15 school days. On Respondent's Annual Non-Instructional Personnel form, Mr. Cooper checked-off 4 out of 8 areas for "Needs Improvement" with "Satisfactory" checked for the remaining 4 areas. Mr. Allen checked "Unsatisfactory" for the "Overall Evaluation" and checked the box "Dismissal." Respondent noted her disagreement with the evaluation. On May 19, 1999, Mr. Cooper formally recommended dismissal of Respondent. Respondent received a Notice of Recommendation of Dismissal on that date. The Board approved Respondent's dismissal on May 25, 1999. During the 3 week period Respondent was given to improve her performance, neither Mr. Cooper nor any other administrator met with Respondent to advise her as to whether she was improving. There is no documentation whatsoever of Respondent's lack of improvement. During the 3 weeks Respondent was to improve her performance, she received repeated assurance from Ms. Lomago that they would be working together the following year. Ms. Lomago never advised Respondent that her performance continued to be unsatisfactory. Likewise, no one from the Board or any school administrator advised Respondent that she was not complying with the Procedures for Improvement or that her work continued to be unsatisfactory. Not hearing otherwise, Respondent considered her work to be satisfactory and did not meet with Mr. Cooper to obtain suggestions and assistance. The evidence does not establish that Respondent failed to perform her assigned duties in a satisfactory manner during the 1998-1999 school year or that the Board had just cause or any other sufficient cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board reinstate the employment of Annette Bennett-Edwards and provide for back pay and benefits retroactive to May 25, 1999. DONE AND ENTERED this 6th of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 6th day of March, 2000. COPIES FURNISHED: Edward A. Upthegrove Superintendent Hendry County School District Post Office Box 1980 LaBelle, Florida 33935-1980 Richard G. Groff, Esquire Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206 Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2989 Fort Myers, Florida 33902-2089
The Issue Whether Respondent, a maintenance technician employed by Petitioner, committed the offenses alleged in the Notice of Specific Charges and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Petitioner has been 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 Article IX, Florida Constitution, and Section 230.03(1), Florida Statutes (2001). At all times relevant to this proceeding, Respondent was employed by Petitioner as a maintenance technician and was assigned to WLRN, the radio/television station operated by Petitioner. At all times relevant to this proceeding, Mr. Hernandez supervised a work crew consisting of Respondent and ten other maintenance technicians. At the time of the final hearing, Respondent, Mr. Hernandez, and several other members of the work crew had worked together since 1990. The work crew performed maintenance work at the radio/television station and at the various schools and other facilities that received signals from the radio/television station. At the times pertinent to this proceeding, Respondent had his own truck that he used to travel to his various work assignments. Respondent is a frustrated employee who does not get along well with his co-workers or with Mr. Hernandez. Respondent believes himself to be more qualified than his supervisor and his co-workers, and he is ever vigilant for improperly performed work by the maintenance crew. Respondent keeps a copy of the job description for the position held by Mr. Hernandez, which he reviews on a regular basis to determine if Mr. Hernandez is fulfilling his responsibilities. Over the course of his employment with Petitioner, Respondent has had a history of threatening co-workers and other School Board employees. Prior to May 1, 2001, Respondent had threatened Mr. Hernandez with bodily harm on two occasions. As a result of his threats against Mr. Hernandez and other School Board employees, Respondent had been referred on more than one occasion to Petitioner's Employee Assistance Program. In 1995 Petitioner required Respondent to submit to a psychological evaluation 1/ to determine Respondent's fitness for work. For the two and a half weeks immediately preceding May 1, 2001, Respondent was off work. During that time Respondent's work truck was idle. On May 1, 2001, when Respondent returned to work, an incident occurred between Mr. Hernandez and Respondent that underpins this proceeding. 2/ While making the workday assignments on the morning of May 1, 2001, Mr. Hernandez informed Respondent that his work truck had been scheduled for routine maintenance that day. Respondent became upset because the truck had been idle for the previous two and a half weeks, and he believed that the maintenance should have been performed during that period. Mr. Hernandez assigned Respondent to work with Mr. Braddy, but Respondent refused that assignment. 3/ Respondent walked over to the maintenance garage with a tape recorder to have the mechanic state on tape when Respondent's truck would be ready. Respondent then returned to the area where Mr. Hernandez was still making assignments. Mr. Hernandez told Respondent to go work with Rafael Montesino, another member of the work crew. Respondent refused that assignment. When he heard the assignment and Respondent's refusal, Mr. Montesino told Mr. Hernandez he would not work with Respondent and that he would take the day off if he had to do so. By the time Mr. Hernandez began to leave the area to go to his own work assignment, the other members of the crew had left for their assignments. Respondent did not have an assignment and he remained in the area. As Mr. Hernandez was leaving the area, Respondent verbally assaulted Mr. Hernandez in a hostile, threatening manner. Respondent cursed Mr. Hernandez and threatened to kill him. Mr. Hernandez drove off from the confrontation. Mr. Hernandez filed a complaint with his supervisors regarding Respondent's behavior of May 1, 2001, by Memorandum dated May 2, 2001. Following an investigation Detective Mario Victores of Petitioner's school police prepared a report styled Preliminary Personnel Investigation (the report). The report substantiated two alleged violations of School Board rules by Respondent: Rule 6Gx13-4A-1.21, pertaining to responsibilities and duties of School Board employees and Rule 6Gx13-4.108, pertaining to violence in the workplace. Victoria Bradford held a conference-for-the-record with Respondent to discuss the incident of May 1, 2001. Based primarily on Ms. Bradford’s recommendation, 4/ Respondent was referred to Petitioner’s Employee Assistance Program and his employment was suspended without pay for a period of 30 days. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. At the times material to this proceeding, Respondent was a member of the American Federation of State, County and Municipal Employees (AFSCME) collective bargaining unit. AFSCME and Petitioner have entered into a Collective Bargaining Agreement (CBA), which in Article II, Section 3, provides that members of the bargaining unit may be disciplined for "just cause." The CBA does not define the term "just cause." Article XI, Section 1A of the CBA provides for progressive discipline as follows: . . . Whenever an employee . . . violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the . . . rule, regulation or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline should be followed, however, in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal. Article XI, Section 3 of the CBA provides as follows: 3. In those cases where any employee has not complied with the Board's policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 days without pay. The Superintendent must approve all suspensions. School Board Rule 6Gx13-4A-1.21 states in pertinent part that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. School Board Rule 6Gx13-4-1.08 provides as follows: Nothing is more important to Miami-Dade County Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against any students, employee, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public School employees have a right to work in a safe environment. Violence or the threat of violence by or against students and employees will not be tolerated.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and the Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order uphold the suspension of Respondent's employment for 30 days without pay. DONE AND ENTERED this 15th day of April, 2003, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2003.
The Issue The issues for determination are whether Petitioner has just cause to terminate Respondent’s employment as a non- instructional employee, and, if not, what penalty is reasonable.
Findings Of Fact Petitioner employed Respondent as a bus operator on May 17, 2001. The employment is governed by the terms of the collective bargaining agreement between Petitioner and the Support Association of Lee County (SPALC). Respondent is an educational support employee, defined in Subsection 1012.40(1)(a), Florida Statutes (2008).1 On March 26, 2009, a jury convicted Respondent of burglary of a dwelling, a second degree felony, and one count of battery. Respondent unlawfully entered the home of her husband and, while remaining inside without permission, committed battery on another individual who was there with her husband's permission. School Board Policy 5.04 prohibits the employment of an individual who has committed burglary within the past 10 years. The policy also prohibits the employment of an individual who has committed battery within five years. Respondent is not employable under either guideline, and Respondent presented no evidence in mitigation of either policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2010.
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 Miami-Dade County with just or proper cause to terminate his employment.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Respondent is now, and has been since 1986, employed by the School Board as a Data Input Specialist II. Prior to the effective date of his suspension pending the outcome of the instant dismissal proceeding (that is, prior to the close of business on June 21, 2000), Respondent was assigned to the D. A. Dorsey Educational Center (Dorsey), an adult education center. His suspension pending the outcome of the instant dismissal proceeding is the only disciplinary action that has been taken against him in the approximately 15 years he has worked for the School Board. In discharging his duties as a Data Input Specialist II at Dorsey, Respondent was not responsible for supervising students, nor did he have reason to be with them alone. As a noninstructional employee of the School Board occupying a Data Input Specialist II position, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (Union) and covered by a collective bargaining agreement between the School Board and the Union (Union Contract), effective from July 1, 1999, to June 30, 2002. Article XXI, Section 3, of the Union Contract contains "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel." It provides, in pertinent part, as follows: Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009. The employee is entitled to be represented by up to two representatives of the Union at any conference dealing with disciplinary action(s). Where the Superintendent recommends termination of the employee, the Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination by notifying the School Board Clerk of the employee's intent to appeal such action within 20 calendar days of receipt of the written notice. Following receipt of an appeal, the Board shall appoint an impartial administrative law judge, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. Prior to the hearing, the Board will file and serve the employee with a Specific Notice of Charges. The Board shall set a time limit, at which time the findings of the administrative law judge shall be presented. The findings of the administrative law judge shall not be binding on the Board, and the Board shall retain final authority on all dismissals. The employee shall not be employed during the time of such dismissal, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any seniority or be charged with a break in service due to said dismissal. Dismissals are not subject to the grievance/arbitration procedures. Respondent has a seven-year-old daughter, J. Since his wife passed away in 1994, he has raised J. as a single parent. Four years ago, Respondent opened his home to a 13- year-old boy, D. J. J., whose family had been evicted from the apartment in which they had been living. D. J. J.'s stepmother had just died and his father was unable to properly care for him. From the time that D. J. J. first became a member of Respondent's household until the incident that is the focus of the instant case (Subject Incident), Respondent treated D. J. J. like a son. D. J. J., however, did not always reciprocate and act like a dutiful son. At times, he was rude and disrespectful toward Respondent and refused to follow Respondent's instructions. On three or four occasions prior to the Subject Incident, he even used physical force against Respondent. Respondent responded to these physical attacks, not by hitting D. J. J. back, but with words designed to impress upon D. J. J. that he needed to act appropriately and respect Respondent. While Respondent's words may not have had any long-lasting impact on D. J. J., by talking to D. J. J., Respondent was able to resolve the situation without the use of any force. D. J. J. was also physically aggressive toward Respondent's sister, Sara Payne, and Respondent's niece, Shara Payne. On one occasion, during a visit to Sara's home, D. J. J. asked Sara "to have sex with him." When Sara attempted to get D. J. J. to leave, he refused and grabbed Sara by the arms. Sara, however, was able to free her arms from D. J. J.'s grasp and push D. J. J. out the door. Sara reported to Respondent, prior to the Subject Incident, what had happened during D. J. J.'s visit. Respondent was also made aware, prior to the Subject Incident, of an instance where D. J. J. had walked into his niece's, Shara's, classroom at Miami Northwestern High School, demanded that she leave with him, and, when she refused, pulled her by arm, until a teacher intervened by calling school security. There is no indication that either Sara or Shara suffered any injuries as a result of the above-described incidents. The Subject Incident occurred on September 8, 1999. On that date, D. J. J. was 16 years of age, stood approximately five feet, two inches tall, weighed 160 pounds, 1/ and had a muscular build. Respondent was approximately 25 years older, 13 inches taller, and 40 pounds heavier than D. J. J. Upon returning home from work on September 8, 1999, Respondent reprimanded D. J. J. for not having done his chores around the house. D. J. J., in turn, without saying anything, picked up his house key and headed to the front door "as if he was going to leave." When he saw D. J. J. walking toward the door, Respondent asked D. J. J. for the house key. D. J. J. ignored Respondent's request. He continued walking, silently, toward the door. Respondent followed D. J. J., "sticking close to [D. J. J.] because [Respondent] didn't know [D. J. J.'s] intention." As Respondent repeated his request that D. J. J. hand him the key, D. J. J. went into the kitchen, took a hammer, laid the key down on the counter, and struck the key with the hammer with sufficient force to bend the key. D. J. J. then threw the key to the floor, moved toward Respondent, and struck Respondent in the jaw with a closed fist. After punching Respondent, D. J. J. walked into the living room and picked up a key chain containing Respondent's house and car keys. (Respondent did not have another key to the house.) The front door was locked from the inside 2/ and therefore D. J. J., if he wanted to exit the house (by conventional means), needed the house key to unlock the front door. (All of the house's windows, except for the "safety window," had bars on them, and the safety window was locked, with no key readily available to unlock it.) Concerned that he and his daughter (who was also in the house at the time) might be locked in the apartment if D. J. J. left with the house key, 3/ Respondent repeatedly requested that D. J. J. give him back his keys. Without saying a word, D. J. J. walked into his bedroom and sat down on his bed. Respondent followed him, demanding that D. J. J. return the keys. He told D. J. J., "you can leave and it won't be no trouble, just give me the keys." Maintaining his silence, D. J. J. stood up and started walking toward the bedroom door where Respondent was standing. As D. J. J. approached Respondent, 4/ Respondent took a hot (plugged-in and turned-on) iron that was on a nearby ironing board in the bedroom and struck D. J. J. with the iron in the face, thereby bruising and burning the side of D. J. J.'s face. A scuffle ensued, with D. J. J. trying to take the iron away from Respondent. During the scuffle, Respondent was burned on the leg by the iron, as it fell to the floor. D. J. J. then exited his bedroom and walked into the hallway, with Respondent following behind him. 5/ The hammer that D. J. J. had used to bend his house key was in the hallway. Respondent picked the hammer up and hit D. J. J. on the back of head with it. Neither Respondent's hitting D. J. J. on the back of the head with the hammer, nor Respondent's striking D. J. J. on the side of the face with the hot iron, was reasonably necessary to protect Respondent or his daughter against D. J. J. or to further any other legitimate purpose. Bleeding from the head wounds Respondent had inflicted, D. J. J. went to the telephone that was in the hallway and called the police, who shortly thereafter arrived on the scene. After speaking with D. J. J. and Respondent, and then examining D. J. J.'s injuries, the police placed Respondent under arrest for "aggravated child abuse." The police waited until Respondent's sister, Tatiana (who had agreed to care for J. in Respondent's absence), arrived at the house before transporting Respondent from the scene. Respondent spent the night in jail. The following day, September 8, 1999, Respondent was released pursuant to an Order of Pretrial Release Conditions, which, among other things, prohibited Respondent "from having any contact with" D. J. J. and required Respondent to "stay at least 500 feet away from [D. J. J.], [D. J. J.'s] home, place of employment and/or school at all times." On October 18, 1999, the State Attorney's Office filed, in Miami-Dade County Circuit Court Case No. 99-30932, an "information for aggravated child abuse" against Respondent alleging the following: GREGORY PAYNE, on or about SEPTEMBER 8, 1999, in the County [of Miami-Dade] and [the] State [of Florida], did unlawfully feloniously commit an aggravated battery upon D. J. J., a child of sixteen (16) years of age, by HITTING HIM IN THE HEAD WITH A HAMMER AND BY PLACING A HOT IRON ON HIS FACE, and during the commission of such felony the defendant committed an aggravated battery in violation of s.827.03(1), Fla. Stat., 6/ contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. That same day, Respondent was arrested and taken into custody for violating the requirement of the September 8, 1999, Order of Pretrial Release Conditions that he "stay away" from D. J. J. Respondent remained in jail until October 26, 1999. On that date, Respondent entered a plea of guilty to the "aggravated child abuse" charge filed in Miami-Dade County Circuit Court Case No. 99-30932, after having discussed the matter with his attorney and determined that it was in his best interest to enter such a plea. Respondent was thereafter adjudicated guilty of the crime and ordered to serve one year of community control, followed by one year of probation, during which he was required to "enter and successfully complete the Anger Control Program." 7/ The School Board learned of Respondent's "aggravated child abuse" conviction through a records check (Records Check E-02988). A conference-for-the-record with Respondent was held on February 23, 2000, "to address Records Check E-02988 concerning Aggravated Child Abuse, noncompliance with School Board policy and rules regarding Employee Conduct, a review of the record, and [Respondent's] future employment status with Miami-Dade County Public Schools." At the conference, Respondent was provided a copy of the records check findings and provided the opportunity, of which he took advantage, to "respond to the allegation that [he] 'w[as] arrested and later convicted of Aggravated Child Abuse.'" After doing so, he was advised that further review of the matter would be undertaken and that he would remain in his current assignment pending the outcome of such further review, provided he did the following: Remain in control of [him]self at all times and, specifically, during work hours. Comply with School Board Rule 6Gx13-4A- 1.21, Employee Conduct, a copy of which was provided to [him]. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21(I), Employee Conduct, has provided as follows: All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. A pre-dismissal conference-for-the-record was held with Respondent on May 19, 2000. At the conference, Respondent was told that a recommendation for his dismissal would be made based upon the following charges: Just cause, including but not limited to, immorality, conviction of a crime involving moral turpitude, and violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. The Superintendent of Schools subsequently made such a recommendation to the School Board. At its June 21, 2000, meeting, the School Board suspended Respondent and initiated a proceeding to terminate his employment "for just cause, including, but not limited to, immorality, conviction of a crime involving moral turpitude, and violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Respondent formally appealed his proposed termination pursuant to Article XXI, Section 3F. of the Union Contract, and the School Board subsequently referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a hearing on the appeal. Prior to the hearing, the School Board filed and served on Respondent a Notice of Specific Charges, as required by Article XXI, Section 3F. of the Union Contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the grounds set forth in Counts I through III of the Notice of Specific Charges. DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2001.
The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner’s substantial interests are affected by the decision of the Nassau County School Board (School Board) to eliminate her paraprofessional position, and whether the School Board’s decision to terminate her was lawful.
Findings Of Fact Based upon the stipulation of the parties, as recited in their Joint Pre-hearing Statement, and the Stipulated Record submitted by the parties, the following facts are found: Respondent was an educational support employee for Petitioner from the 1999-2000 school year through the 2017-2018 school year, during which time she received annual performance evaluations of satisfactory or higher. Her evaluation for the 2017-2018 school year, signed by her supervisor on April 6, 2018, recommended another evaluation in 12 months. Respondent’s position is covered by the Collective Bargaining Agreement Between the School Board of Nassau County, Florida, and the Nassau Educational Support Personnel Association (CBA), which provides in Article VII(C): “Upon completion of the probationary period as provided herein, and during the term of the employee’s normal work year, he/she shall not be terminated except for just cause.” Respondent became a post-probationary employee in August 2000. Respondent worked as a paraprofessional assigned to the guidance department of West Nassau High School (WNHS) from at least the 2011-2012 school year through the 2017-2018 school year, not as an instructional paraprofessional. In April 2018, WNHS Principal Curtis Gaus met with Respondent and told her that her position would be phased out as of the end of the 2017-2018 school year. Principal Gaus did not state that Respondent’s position was being terminated for a reason stated in the CBA, nor that Respondent’s employment was being terminated due to districtwide layoffs made for financial reasons. Respondent was not given written notice that her employment was being terminated for reasons outlined in the CBA, nor was she terminated for any such reason. Respondent was not relieved of her duties at the end of the 2017-2018 school year as part of a reduction in the number of employees on a districtwide basis for financial reasons. Superintendent Burns has never recommended to Petitioner that Respondent be terminated for just cause or for any other reason, nor has Petitioner itself taken official action to terminate Petitioner’s employment. Petitioner did not file a petition to terminate Respondent’s employment, stating the specific reasons Respondent was being terminated, or otherwise comply with the requirements of Florida Administrative Code Rule 28-106.2015. Respondent did not pursue arbitration or file a grievance, as permitted under the CBA. Petitioner has not identified what specific provision of the CBA Respondent could identify to support a grievance, if filed. The parties stipulated to the existence of certain portions of the CBA, but did not provide context that informs the scope of some of the provisions cited. Of particular relevance to this proceeding are the provisions contained in Article IV (Grievance Procedure); Article V (Vacancies, Transfers and Reduction of Personnel); and Article VII (Discipline of Employee). The pertinent portions of each are quoted below, with those portions to which the parties stipulated designated by italics, and those provision determined by the undersigned to be particularly relevant designated by being underscored. Article IV provides, in pertinent part: ARTICLE IV – GRIEVANCE PROCEDURE GENERAL The purpose of this procedure is to secure, at the lowest possible administrative level, resolution of any dispute which may arise concerning the proper interpretation and application of this contract. Both parties agree that these procedures will be kept as informal and confidential as may be appropriate at any level of the procedure. 1. Time limits. The time limits as called for herein shall be considered the maximum time limits to be used for grievance processing. Extensions may be granted by mutual agreement at level one or two. Each party shall attempt to expedite grievance processing. * * * 4. Processing. Grievances not timely filed or processed to the next step by the grievant, shall be considered settled. Grievances not timely responded to shall permit processing to the next step. * * * 6. Requirements. a. A grievance shall be filed in a timely manner and shall be an alleged violation, misapplication, or misinterpretation of a specific article or section of this Agreement. . . . * * * Procedures * * * 4. Step III Step III (Mediation of Termination) a. If the subject of the grievance is termination as the result of unsatisfactory evaluation [See Article VII section F] and the grievant is dissatisfied with the response at Step II or if no response is timely given, the grievant may, within ten (10) working days, notify the office of the Superintendent using the district’s grievance form, that s/he is requesting grievance mediation by the Federal Mediation and Conciliation Service (FMCS). * * * Restrictions and Limitations Evidence not produced in Step I or II by a party shall not be offered in mediation. The judgment of the evaluator leading to the rating shall not be mediated. However, the process may be subject to review. The mediator shall not have the power to recommend an addition to, subtraction from, or alteration of the terms of the agreement or to recommend the alteration of the evaluation results of the grievant. The mediator shall only have the authority to mediate the termination issue presented for mediation by the parties and shall not have the power or authority to create or alter the issue of the parties or the issue as perceived by each party. The employment of the grievant shall not be extended beyond the end of the contract year as the result of the time required for the grievance and mediation procedure. The final results of the mediation process shall be presented to the School Board for its final decision. The decision of the School Board shall be final unless appealed by the grievant to Step III B, Binding Arbitration. Step III b (Binding Arbitration) a. 1) If the grievant is dissatisfied with the response at Step II or if no response is timely given, the grievant may within ten (10) working days notify the Superintendent using the District’s grievance form, that the grievance is being arbitrated. * * * e. Restrictions and Limitations of Arbitration Evidence not produced in Step I or II by a party shall not be offered in Arbitration. The Arbitrator shall not have the power to add to, subtract from, or alter the terms of the grievant. In the case of a termination grievance the arbitrator shall not have the power to extend employment beyond the term of the affected employment year for the grievant’s classification. (emphasis added). Article V of the CBA addresses Vacancies, Transfers and Reduction of Personnel. The relevant sections provide as follows: F. Reduction in Personnel Reduction in force shall take place when the Superintendent of Schools: Announces that a reduction in force is to take place. Determines and announces the type of reduction to take place as: System-wide Building-wide Departmentally Any combination of 1), 2), and 3) herein by title and/or position Notifies any employee or employees that an employee or group of employees is being dismissed under this provision. Finally, Article VII of the CBA addresses discipline of employees. It provides in pertinent part: A person employed after the effective date of this Agreement shall serve a probationary period of 365 calendar days. During such probationary period he/she serves at the pleasure of the Board and may be disciplined and/or terminated at the discretion of the Board without further recourse. Upon completion of the probationary period and during the term of the employee’s normal work year, he/she shall not be terminated except for just cause. Provided that in lieu of termination and with the written consent of the employee, the employee may be returned to probationary status. The judgment of the evaluator in the performance appraisal of an employee shall not be subject to the grievance procedure of this Agreement. In the event a non-probationary employee is terminated as a result of unsatisfactory evaluation, such termination shall be subject to the grievance procedure of this Agreement. 1. The Board/Superintendent reserve the right to take disciplinary action, up to and including dismissal, against any employee based on the seriousness of the offense and the employee’s record. The CBA does not address non-renewal of year-to-year employees outside the context of discipline or a reduction in force announced by the Superintendent. Article XII of the CBA provides that the CBA “shall supersede any rules, regulations or practices of the Board which will be contrary to or inconsistent with the terms of this agreement.” It does not by its terms supersede any rights created by statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Nassau County School Board enter a final order reinstating Respondent to her prior status as a non-probationary educational support employee with back pay and all other lost benefits she would have received had she not been improperly terminated. DONE AND ENTERED this 9th day of September, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2019.
The Issue Whether Petitioner, Sarasota County School Board (Petitioner or School Board), had just cause to terminate Ernest Curry (Respondent) for misconduct in office.
Findings Of Fact Petitioner is responsible for operating, controlling, and supervising the public schools in the School District. See § 1001.32(2), Fla. Stat. At all times material, Respondent was employed as a groundskeeper for the School Board. Groundskeepers are educational support employees. On September 2, 2020, while at work at Tuttle Elementary School, Respondent submitted to a reasonable-suspicion urine drug screen. The final test results returned positive for marijuana. As an educational support employee, Respondent’s employment with the School District is governed by the Collective Bargaining Agreement. 1 Petitioner’s Exhibit 1 is a copy of an excerpt of the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the School Board of Sarasota County, FL (Collective Bargaining Agreement). The undersigned takes official recognition of the entire Collective Bargaining Agreement, which may be accessed at https://www.sarasotacountyschools.net/cms/lib/FL50000189/Centricity/Domain/143/2019- 20%20Classified-Final-Rev%20052620.pdf. (Last visited Jan. 6, 2021).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 7th day of January, 2021. COPIES FURNISHED: Ernest Curry 3408 16th Court East Bradenton, Florida 34208 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. 500 South Washington Boulevard, Suite 400 Sarasota, Florida 34236 (eServed) Dr. Brennan W. Asplen, III, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34321-3365 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner has established "just cause" to terminate Respondent based on the allegation that Respondent had altered a prescription allowing him to obtain refills for Vicodin and that he had submitted the altered prescription to a pharmacy.
Findings Of Fact Mr. Cartwright has been a School District employee since August 4, 2003. Before his suspension in this case, Mr. Cartwright was a fourth grade teacher at G. Weaver Hipps Elementary School. Mr. Cartwright testified that he had a pre-existing back injury, which made him susceptible to injury. Mr. Cartwright explained that he was injured in an automobile accident that occurred in 2000. This back injury apparently left Mr. Cartwright in pain, which was treated with a series of prescriptions. In the Spring of 2009, Mr. Cartwright injured his back while working for the School District. According to Mr. Cartwright, he was helping move equipment out of his classroom and "threw his back out." This injury resulted in him making a workers' compensation claim with the School District and seeking treatment at Lee Convenient Care. Mr. Cartwright also testified about another workers' compensation injury that occurred on January 25, 2010, while he was employed with the School District. It is this January 25, 2010, injury that provides the factual foundation concerning the charges against Mr. Cartwright. Earlier in the school year, on or near January 19, 2010, Mr. Cartwright had exhibited problems with slurred speech and was acting loopy in a classroom. Based on his behavior, Mr. Cartwright was driven home. On January 22, 2010, Mr. Cartwright met with Ranice Monroe (Ms. Monroe) and a representative from the teacher's union about Mr. Cartwright's behavior. Mr. Cartwright explained that his medications had caused his behavior and that it would not happen again. Ms. Monroe informed Mr. Cartwright that the School District was not looking at discipline at that time, but, if anything further occurred, there would be consequences. On January 25, 2010, Mr. Cartwright picked up a box of copy paper from outside his classroom. As he entered the classroom carrying the box, Mr. Cartwright slipped on a liquid, twisted his back, and fell holding the box. Mr. Cartwright testified that he assumed that the liquid on the floor may have been milk or some other liquid that had been spilled during breakfast by one of the students. Mr. Cartwright informed the school that he had been injured, and he went to Lee Convenient Care seeking medical treatment. On January 25, 2010, Karl Friedrich, M.D. (Dr. Friedrich), a physician at Lee Convenient Care wrote, Mr. Cartwright a prescription for Vicodin with the lines on the form for Mr. Cartwright's address, age, and number of refills left blank. After seeing Dr. Friedrich, on January 25, 2010, Mr. Cartwright presented the prescription to a pharmacy technician at the CVS Pharmacy for filling the prescription. At some point, the prescription was altered to authorize two refills. On February 17, 2010, Mr. Cartwright refilled his prescription for the Vicodin at the CVS Pharmacy. On February 18, 2010, Scott LeMaster (Mr. LeMaster), the principal for G. Weaver Hipps Elementary School, asked Mr. Cartwright to meet with him. It was reported to the principal that Mr. Cartwright was having great difficulty in the classroom and with his capability to work with the children. During the meeting, Mr. LeMaster informed Mr. Cartwright that he was worried about Mr. Cartwright and asked if there was something that Mr. Cartwright should tell him. At this point, Mr. Cartwright admitted that he had a problem and that he needed help. Mr. LeMaster contacted Craig Baker (Mr. Baker), from the School District. Mr. Baker is an investigator for the School District and the coordinator for the School District's Department of Professional Standards and Equity. Mr. Baker arrived at the school and observed Mr. Cartwright. Mr. Baker found that Mr. Cartwright exhibited "very jittery, jumpy behavior, rapid speech." Based on these observations and statements made by Mr. Cartwright to Mr. LeMaster, the School District had reasonable suspicion to perform a drug test. Mr. Baker administered the drug test, and, at that point, Mr. Cartwright informed Mr. Baker that the test would be positive for Vicodin. The drug test came back positive for cocaine. Based on Mr. Cartwright's behavior and drug test, he was driven home, placed on suspension with pay, and referred to the School District's Employee Assistance Program pursuant to the School District's Alcohol and Drug Free Workplace policy. Mr. Cartwright successfully completed the Employee Assistance Program on May 11, 2010. On June 4, 2010, Mr. Cartwright received a letter of reprimand for this conduct. On May 11, 2010, the School District's Department of Professional Standards and Equity received allegations from the School District's workers' compensation carrier concerning Mr. Cartwright. Specifically, Paul Kosvich, an investigator for the School District's workers' compensation carrier, voiced suspicions that Mr. Cartwright had falsified his prescription for Vicodin in order to obtain a refill on February 17, 2010. As a result of this allegation, the School District continued Mr. Cartwright's suspension and began an investigation. A copy of the altered prescription showed that, unlike the original prescription entered on January 25, 2010, the altered prescription contained Mr. Cartwright's address, date of birth, and provided for two refills of Vicodin. Based on the determination that Mr. Cartwright had altered the prescription, the School Board determined to seek Mr. Cartwright's termination. Mr. Cartwright testified that, when he was filling the prescription on January 25, 2010, the CVS pharmacy technician informed him that she could not fill the prescription without information concerning his address, date of birth, and refills.1/ According to Mr. Cartwright, the pharmacy technician asked him for his date of birth and address. Mr. Cartwright testified that he saw the pharmacy technician write Mr. Cartwright's address and date of birth on the prescription and that she called Lee Convenient Care about his prescription. Further, Mr. Cartwright testified that he did not see the pharmacy technician write in the number of refills and that he assumed that she had written the number. Finally, Mr. Cartwright denied that he had altered the prescription. Mr. Cartwright's testimony concerning the altercation of the prescription is not credible. Mr. Cartwright's explanation is not credible because the medical records do not support his contention that a CVS pharmacy technician called Lee Convenient Care on January 25, 2010. Although Dr. Friedrich testified that he did not specifically remember Mr. Cartwright, Dr. Friedrich credibly testified that he had not authorized the refill and that it was doubtful that a pharmacy technician had called Lee Convenient Care, as explained by Mr. Cartwright. Dr. Friedrich based his testimony on his review of Mr. Cartwright's medical record at Lee Convenient Care and the typical practice of noting telephone conversations with a pharmacy in the medical records. Specifically, Dr. Friedrich credibly testified that he reviewed Mr. Cartwright's medical records at Lee Convenient Care, and the records showed that he had not authorized a refill for Mr. Cartwright. Further, Dr. Friedrich credibly testified that Mr. Cartwright's medical file did not contain any notation showing that someone had called about the January 25, 2010, prescription. Dr. Friedrich explained that typically if a pharmacy calls Lee Convenient Care about a patient's medication that the call would be documented in the patient's medical record. Mr. Cartwright's explanation also does not make sense, because the pharmacy technician did not have to call Lee Convenient Care to verify Mr. Cartwright's date of birth and address. Those facts are readily attainable from Mr. Cartwright. Further, there would not have been any reason for the pharmacy technician to determine an amount of refills, when the physician had left the refill space blank, and the prescription is being filled for the first time. Based on the foregoing, Mr. Cartwright's explanation that a pharmacy technician had altered the prescription is not credible. The evidence supports the conclusion that Mr. Cartwright altered the prescription. Mr. Cartwright's teacher evaluations showed that, for the 2008-2009 school year, he was a highly-regarded teacher, earning "outstanding" and "high performing" marks. A review of his teacher evaluations from 2003 until 2007 also reflect he was an effective and good teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding that Phillip Cartwright committed misconduct in office and that he should be dismissed from his employment as a teacher pursuant to section 1012.33. DONE AND ENTERED this 4th day of April, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 4th day of April, 2011.
