The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with operating, controlling, and supervising all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as a teacher in the Miami-Dade County Public Schools District pursuant to a professional services contract. In the 2011-2012 school year, Respondent was employed as a science teacher at Homestead Middle School. In the 2012-2013 school year, until she was suspended pending the outcome of this proceeding, Respondent was employed as a math teacher at the Alternative Outreach Program, 5000 Role Models location.1/ At all times relevant to these proceedings, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Events Giving Rise to these Proceedings The 2011-2012 School Year Respondent began teaching eighth grade science at Homestead Middle School ("HMS") in August 2011. The 2011-2012 school year for students began on August 22, 2011. The workday hours for teachers at HMS for the 2011-2012 school year were from 7:25 a.m. to 2:45 p.m., Monday through Friday. The persuasive evidence establishes that Respondent was informed of this schedule when she was interviewed for her teaching position, and again so informed during the first faculty meeting of the school year. Pursuant to the UTD contract, the teacher work hours per day in the Miami-Dade Public Schools consist of seven hours and 20 minutes, including a one-hour planning period. The UTD Contract provides that teachers may, with the approval of the work-site administrator (i.e., the principal) modify their workday schedule, such as adjusting the beginning time of the teacher's workday, provided that such modification does not interfere with the overall number of hours worked. This provision affords a principal the authority and discretion to modify a teacher's workday schedule. The student school day hours for HMS began at 7:35 a.m., when the first bell rang and students began entering their classrooms, and ended at 2:20 p.m. Students were to be in their classrooms by 7:40 a.m. for a homeroom period, immediately followed by the first instructional period consisting of a literacy block. The student school day schedule is set by the Miami-Dade County School Board and the school principal is not authorized to change it. Pursuant to HMS's established procedure, if a teacher was going to be absent, he or she must call the absence hotline at least 30 minutes prior to the start of the teacher workday. Shortly after the beginning of the 2011-2012 school year, Respondent began being tardy to work. HMS Principal Rachelle Surrancy or one of the HMS assistant principals would note Respondent's arrival time, either by being in the front of the school when she arrived2/ or by having to open the door to her classroom to let her homeroom class students in if she arrived after the late bell had rung. Surrancy verbally reminded Respondent of the school's starting time, then held an informal meeting with her on or about September 7, 2011, to remind her of the same. Respondent's young son suffers from a range of significant health conditions, including asthma, gastrointestinal reflux, apnea, pneumonia, lactose intolerance, allergic rhinitis, and eczema. He requires extensive care for these conditions, and Respondent was required to administer breathing treatments and other care on a daily basis. During flare-ups of her son's conditions, Respondent needed to take medical leave to provide that care. On or about September 20, 2011, Respondent submitted to Surrancy an Intermittent Leave Request Medical Certification form under the Family and Medical Leave Act ("FMLA") (hereafter "FMLA Form")3/ requesting approval for Respondent to periodically take leave due to the intermittent illness of her young son. The FMLA form was completed and signed by Respondent's son's physician. Based on the child's medical history, the physician estimated that Respondent would need to take FMLA leave every two to three months, for a period lasting two to three days. Notwithstanding Surrancy's admonitions, Respondent continued to be tardy to work. During the first 25 days of the school year, Respondent was tardy 16 of those days. Most of the tardies entailed an arrival time of between two and five minutes late, but some entailed arrival times as much as 25 to 35 minutes late. When Respondent arrived after 7:40 a.m. (15 minutes late), her colleagues in the science department were placed in the position of having to cover her class until she arrived. As a result of Respondent's continued tardiness, on September 28, 2011, Surrancy issued a Punctuality to Work Directive ("Directive") to Respondent regarding her punctuality and attendance.4/ The Directive reminded Respondent that punctuality and attendance were essential components of her teaching position, and that as a faculty member, she served as a role model to other employees and student. Respondent was apprised that she was to arrive at work on time and sign in daily by 7:25 a.m. If she was going to be tardy, she was to communicate that to an assistant principal or to Surrancy. Surrancy explained that compliance with these directives was necessary to prevent adverse impact to the students and their academic progress, to ensure continuity of the educational program, and to maintain effective worksite operations. The memo advised Respondent that she could obtain assistance to facilitate her punctuality. Respondent was notified that noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. Respondent told Surrancy that the reason she was tardy was that she had to take her son to his daycare center. The daycare center did not open until 7:00 a.m., making it difficult for her to arrive at HMS by 7:25 a.m. due to the commute in morning traffic. On October 5, 2011, Surrancy evaluated Respondent's instructional performance for the 2011-2012 school year pursuant to the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used in the Miami-Dade County Public School District to evaluate instructional personnel. Surrancy rated Respondent as "effective" for each IPEGS standard other than Performance Standard ("PS") 7, "Professionalism."5/ For that standard, she rated Respondent's performance as "unsatisfactory" on the basis that due to her tardies, Respondent violated the School Board's Code of Ethics and Standards of Ethical Conduct policies.6/ After the September 28 meeting, Respondent continued to be tardy, so on October 10, 2011, Surrancy again met with her. Respondent explained that each day, her son required a breathing treatment regimen that she had to administer and that she had to take her son to daycare. Respondent told Surrancy that she planned to enlist the assistance of a friend to take her son to daycare so that may assist her to arrive on time.7/ Surrancy offered to adjust Respondent's workday schedule to allow her to arrive five minutes later to accommodate her travel time from her son's daycare to HMS, contingent on Respondent arriving at work by 7:30 a.m. However, Respondent continued to be tardy, at times arriving later than 7:30 a.m. Surrancy held a follow-up meeting with Respondent on October 25, 2011, at which she notified Respondent that the adjusted workday schedule no longer was in effect and that she was again required to arrive at 7:25 a.m.8/ In the meantime, Respondent sought to transfer to a school having a workday schedule with which she could more easily comply, given her son's daycare start time and her travel time. She was offered, but declined, a position at Redland Middle School, which entailed a teaching assignment that was out of her field of certification. Respondent declined the position because it did not meet the condition of her loan forgiveness program that the assignment be in a critical subject area——such as science and math——and because she did not believe she would be as proficient a teacher in teaching out of her subject area. Following the October 25 meeting, Respondent continued to be tardy. Several of these tardies necessitated coverage for her homeroom class. On December 14, 2011, Surrancy held a Conference-for- the-Record ("CFR") with Respondent to address her continued tardiness. By that time, Respondent had been tardy 45 days since the beginning of the school year, and several of these tardies necessitated coverage of her homeroom class by her colleagues. Surrancy informed Respondent that her tardies had adversely affected the educational program and services provided to students. Respondent was again directed to be punctual and in regular attendance, to communicate any intent to be tardy before 7:00 a.m. by calling the assistant principals or her, and to provide physician documentation and/or recertification of her FMLA form as needed if she was going to use FMLA leave to cover her tardies. Respondent was provided copies of Petitioner's policies on Standards of Ethical Conduct, Code of Ethics, and Leaves of Absence; Department of Education rules 6B-1.001 and 6B- 1.006; another copy of the FMLA for recertification by her physician; and other documents to inform and assist Respondent in addressing her tardiness problem. Respondent was informed that noncompliance with the directives would constitute insubordination and compel district disciplinary action. Respondent continued to be tardy. Again, several of these tardies necessitated coverage of her homeroom class. On February 13, 2012, Surrancy conducted another CFR with Respondent. As of that date, Respondent had been tardy 69 days since the beginning of the 2011-2012 school year. Surrancy issued Respondent the same directives previously given and again furnished Respondent copies of pertinent School Board policies, applicable Department of Education rules, and other informational documents. Surrancy informed Respondent that failure to comply with these directives would constitute gross insubordination and necessitate further disciplinary action. Respondent explained that her tardiness was due to a variety of factors, including having to perform breathing and other medical treatments on her son and taking him to daycare. She expressed concern at having to call in by 7:00 a.m. if she was going to be tardy because, for unforeseen reasons such as her son's daycare being late in opening, she may not know whether she was going to be tardy until after 7:00 a.m. Surrancy informed Respondent that under any circumstances, calling in did not excuse tardiness. Respondent requested that Surrancy assign her homeroom to another teacher and allow her to report at 7:45 a.m., when her science classes commenced. Surrancy refused. As a result of Respondent's continued tardies, Surrancy determined that her conduct constituted insubordination and noncompliance with applicable School Board policies. Surrancy issued a written Reprimand to Respondent on March 5, 2012. The Reprimand directed Respondent to adhere to school board policies, be punctual, and call Surrancy or an assistant principal before 7:00 a.m. if she were going to be tardy. Respondent nonetheless continued to be tardy, necessitating another CFR, which was held on March 29, 2012. By this time, Respondent had been tardy 86 days and absent 8.5 days in the 2011-2012 school year. During the CFR, Respondent provided two FMLA leave request forms completed by her son's treating physicians certifying the frequency and duration of her son's flare-ups that necessitated leave. One of these, dated March 6, 2012, stated that flare-ups occurred at a frequency of every one to two months for a duration of two to three days, while the other, dated February 20, 2012, stated that the flare-ups occurred approximately once a month and did not specify a duration. Under any circumstances, Respondent was tardy more frequently than the number of days of leave documented as necessary by either of these FMLA forms. Respondent again was given directives, which included those previously provided regarding punctuality and attendance, calling in by 7:00 a.m. if tardiness was anticipated, physician documentation for leave requests, performance of her teaching duties, comporting herself in a manner that reflected credit on herself and Miami-Dade County Public Schools, and adherence to School Board policies and applicable Department of Education rules. Respondent was again provided copies of the policies, rules, and other documents previously given to her. Respondent was offered the option of resigning her position but declined. Surrancy recommended that Respondent be suspended from her teaching position. However, Respondent was not suspended during the 2011-2012 school year.9/ Although Respondent's tardiness during the 2011-2012 school year required coverage of her homeroom class by colleagues on several occasions, she did not miss any classroom instructional time.10/ 2012-2013 School Year For the 2012-2013 school year, Respondent was hired as a math and science teacher in the Educational Alternative Outreach Program's ("EAO") credit recovery program. She was assigned to the EAO's 5000 Role Models location. In this assignment, Respondent taught between 12 and 15 students in grades six through eight. The 5000 Role Models facility was located between 35 and 40 miles from Respondent's home. She had a commute of between one hour ten minutes and two hours one way from her home to 5000 Role Models. The teacher workday hours for this location were 8:20 a.m. to 3:40 p.m. Respondent was informed of this schedule when she was interviewed by EAO Principal Claire Warren, and by letter from Warren regarding her projected teaching assignment for the 2012-2013 school year. Warren credibly testified that at the time she was interviewed, Respondent did not express any concerns regarding this schedule. The student school day at 5000 Role Models started at 9:00 a.m. Shortly after the school year commenced, Respondent began being tardy. During the first week of the students' school year, Respondent was tardy twice, approximately 20 minutes each time. On August 31, 2012, Warren issued Respondent a written memorandum reminding her of the directives that were issued the previous school year and directing her to be punctual and in regular attendance; call before 8:00 a.m. to notify either Warren or the assistant principal if she was going to be absent or tardy; provide physician documentation for absences and tardies due to illness; timely submit updated FMLA forms if anticipated illness or tardies covered under the FMLA are anticipated; adhere to all School Board policies; and perform her job responsibilities. Respondent was placed on notice that noncompliance with these directives would constitute gross insubordination and would necessitate notification of the Office of Professional Standards for the imposition of discipline. Respondent continued to be tardy. As of October 1, 2012, Respondent had been tardy eight times11/ and absent three days.12/ On some of the days she was tardy, Respondent did not call to notify the administration, as she had been directed to do; on other days, she sent text messages but did not call. Warren conducted another conference with Respondent on October 1, 2012. She issued another memorandum documenting Respondent's tardies since the beginning of the 2012-2013 school year, reiterating the directives previously issued on August 31, and notifying Respondent that failure to comply with the directives would constitute gross insubordination. Warren also provided a letter to Respondent regarding FMLA coverage of her tardies and absences. The letter informed Respondent that only absences, i.e., time away from the worksite, and not tardies were covered by the FMLA, and that it was her responsibility to notify the school if she were going to be absent pursuant to an FMLA-certified illness event. Attached to the letter was an FMLA Form to enable Respondent to update her FMLA-covered illness certification as necessary. Respondent's tardies continued. She was tardy on October 2, 5, 8, and 9——on some of these days as much as 45 to 70 minutes late. On the days when she was tardy by 40 or more minutes, she missed classroom instructional time and her students had to be placed in another teacher's classroom. On October 10, 2012, Petitioner took action to suspend Respondent for 30 workdays without pay,13/ for gross insubordination and for violating School Board policies regarding the Code of Ethics (policy 3210), Standards of Ethical Conduct (policy 3210.01), and Leaves of Absence (policy 3430), and rules 6B-1.001, 6B-1.006, and 6B-4.009.14/ Respondent served her suspension and returned to work on November 26, 2012. On that day, she was 11 minutes tardy; the following day, she was 40 minutes tardy. On November 29, 2012, Warren issued another memorandum to Respondent reiterating the directives previously given on August 31 and October 1. Respondent was informed that her failure to comply with the directives would constitute gross insubordination and would necessitate referral to the Office of Professional Standards for further discipline. Respondent continued to be tardy. In December 2012 and January 2013, Respondent was tardy 13 days, two of which required coverage of her class. Respondent did not call in to the school to notify them of her anticipated tardiness but she did notify the school by text message on some of these occasions. On February 1, 2013, Respondent was notified of a CFR scheduled for February 5, 2013. On February 4, 2013, Respondent notified Warren by electronic mail that she would not be at school that day or the following day. On February 6, 2013, Respondent notified Warren by electronic mail that she was taking a leave of absence "for at least the next few weeks." She also informed Warren that her absences the previous two days had been due to her own illness. Respondent did not submit a leave request form to Warren prior to taking sick leave. Respondent did submit a Leave of Absence Medical Documentation Form to the Miami-Dade County Public Schools Office of Retirement/Leave/Unemployment Compensation ("Leave Office") on February 5, 2013, containing her physician's certification that she was ill and recommending a leave of absence from February 4, 2013, to March 1, 2013. Because she was requesting approval of leave for less than 30 days' duration, under the UTD Contract, Respondent should have filed her leave request with Warren rather than with the Leave Office. UTD Contract Article XIV, section 2, paragraph A., governing notification in the event of teacher absence, states in pertinent part: When a teacher, for whom an emergency temporary instructor is employed, will be absent from work, due to illness or injury or due to personal reasons, he/she shall notify the supervising administrator (or designee), as soon as possible, but no later than one hour before the start of his/her scheduled workday, in order that an emergency temporary instructor can be employed or other arrangements made. If said absence/leave is for a specified period of time, no further notice is necessary. In the event of a change in this specified period of absence, the employee will proceed, pursuant to the stipulations herein. Where an absent teacher does not notify his/her supervising administrator, as stipulated herein, and where there are not extenuating circumstances, as determined by the supervising administrator, such teacher will have the option to utilize personal leave or leave without pay. However, such determination by the supervising administrator shall not be made arbitrarily. UTD Contract, art. XIV, § 2.A. (emphasis added). Article XIV, section 10, governs sick leave without pay for illness. Paragraph C. of that section states: "[e]mployees whose illness requires an absence of over 30 days must file an application for extended sick leave indicating the anticipated length of such absence and supported by a statement from competent medical authority." This leave request would be filed with the Leave Office. However, because Respondent did not request sick leave for a period exceeding 30 days, this provision was not applicable to her leave request. Notwithstanding, Respondent's leave request was reviewed by a medical consultant for Miami-Dade County Public Schools and ultimately was denied. Apparently, some time elapsed before the Leave Office forwarded Respondent's leave request and denial decision to Warren. Warren testified: "I didn't get the request until much afterwards, you know, after she had been out several days " Even after Warren received Respondent's leave request form and denial from the Leave Office, more time passed before she notified Respondent. It was not until March 1, 2013, that Warren sent Respondent a letter informing her that her leave request had been denied and that her absences for the entire month of February were unauthorized, thus warranting her dismissal on the basis of job abandonment. At approximately the same time Warren notified Respondent that her leave request was denied, Warren also notified Respondent, by separate email, that she had incorrectly submitted her leave request to the Leave Office, instead of submitting it to her (Warren). On the same day that Warren notified Respondent that her leave request had been denied, Respondent submitted another leave request form and a medical documentation form to Warren, retroactively requesting approval of her sick leave taken between February 4 to March 18, 2013, due to her own illness. Warren denied the request that same day, citing the medical consultant's determination as the basis for the denial. Warren's letter did not cite an independent basis for the denial. Petitioner did not present any competent evidence regarding the specific basis for the medical consultant's determination to deny the request. Respondent returned to work on March 4, 2013. She was tardy that day and the following day. On March 6, 2013, a CFR was held. The CFR originally had been scheduled for February 5, 2013, but when Respondent took leave, it was rescheduled. At the meeting, Respondent was apprised that her tardies and absences were excessive and that they, along with her failure to adhere to the other previously issued directives, constituted gross insubordination. On March 13, 2013, Petitioner took action to suspend Respondent without pay and terminate her employment as a teacher. Respondent's Criminal History Petitioner presented evidence that in August 2012, a records check for Respondent was generated after information was received from Petitioner's Fingerprinting Office indicating that Respondent had been arrested in January 2011 for violation of a protective injunction and in July 2011 for battery. However, this evidence consisted solely of hearsay. Petitioner did not present any non-hearsay evidence establishing that these arrests occurred. Respondent denied that she was arrested in January 2011. She acknowledged that she was arrested for battery in July 2011. She testified, credibly, that the arrest occurred over the July 4th holiday and that she timely reported this arrest by calling Petitioner's instructional staffing office. Respondent credibly testified that the charge was not prosecuted and ultimately was dismissed. Petitioner did not present any competent or credible evidence to refute Respondent's testimony on these points. Respondent's Defenses Respondent asserts that she was not tardy as frequently in the 2011-2012 school year as Petitioner asserts. She questions the accuracy of Surrancy's and others' recordkeeping regarding her tardiness. However, she did not present any specific evidence to show that Petitioner's records of her tardiness in the 2011-2012 were inaccurate; thus, her position on that point is essentially speculative. She also claims that Surrancy did not treat her fairly or equitably during the 2011-2012 school year. Specifically, she asserts that Surrancy had the authority and flexibility to adjust her workday schedule so that she did not have to cover a homeroom class, thus allowing her to arrive at work later, but that Surrancy unfairly chose not to do so. Respondent further asserts that Surrancy had provided such accommodation to another teacher in a previous school year. Thus, Respondent claims that Surrancy treated her unfairly.15/ However, Surrancy testified, persuasively, that she could not have relieved Respondent of having a homeroom in order to enable her to arrive later in the workday because instructional personnel, other than coaches and co-teachers, were assigned homeroom or other professional duties that required them to be at school during regular workday hours. Thus, there was no one else available to assume Respondent's homeroom class responsibilities.16/ Respondent also asserts that Surrancy treated her disparately and unfairly by singling her out for discipline for her tardies, while not disciplining others who also were often tardy. However, even if that were the case, it does not excuse Respondent's tardies or provide a basis for Surrancy to decline to enforce school policies with respect to Respondent. Respondent also asserts that she was not afforded the FMLA leave to which she was legally and contractually entitled. Specifically, she argues that she filed FMLA leave forms stating the need for intermittent leave to care for her son, so that for the days on which she was tardy, the number of minutes by which she was tardy should have been counted as leave under the FMLA. Respondent testified, credibly, that she did not purposely refuse to follow the directives given her by Surrancy, Warren, and the Office of Professional Standards, and that her tardies during both school years were the result of her having to provide medical care for her young son and take him to daycare, then commute in heavy traffic to the worksites. Moreover, to the extent Petitioner claimed that Respondent was insubordinate because she did not adhere to directives to call the school if she was going to be tardy, Respondent credibly countered that she often would call in, only to be put on hold for some time and then told that the administrator she was attempting to reach was not available; thus, she started sending text messages instead to ensure that her message was received. Regarding the arrest reporting issue, Respondent denied that she was arrested in January 2011, and testified that she timely reported her July 2011 arrest to the appropriate authority. Findings of Ultimate Fact In these consolidated proceedings, Petitioner seeks to suspend Respondent without pay and terminate her employment17/ as a teacher on the basis of just cause——specifically, gross insubordination and misconduct in office.18/ As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.33 and rules 6A-5.056; and 6B-1.001 and 6A-10.080; and 6B-1.006 and 6A-10.081. Gross Insubordination Pursuant to the foregoing findings of fact, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent's conduct in accruing an extensive number of tardies during the 2011-2012 and 2012-2013 school years constituted gross insubordination. Although Respondent did submit leave request forms estimating the frequency and duration of FMLA-covered leave she would need in order to care for her son, the evidence shows that she was tardy far more frequently than supported by any of the forms she submitted. In order to accommodate an employee's FMLA request, Petitioner must be able to rely on the information the employee provides on the FMLA leave form. If the information provided on the form is inaccurate, Petitioner is neither required nor authorized to consider undocumented time away from the work site as leave covered under the FMLA.19/ While it is admittedly difficult to precisely predict when illness will occur, under any circumstances, the forms Respondent submitted did not cover the frequency of her tardies incurred in the 2011- 2012 and 2012-2013 school years.20/ As addressed above, it appears that Respondent was the victim of a coalescence of unfortunate personal circumstances that interfered with her employment. Nonetheless, the fact remains that she was repeatedly put on notice by Surrancy, Warren, and the Office of Professional Standards that her continued tardiness would constitute gross insubordination. Any measures that Respondent purportedly took to rectify the circumstances, such as enlisting the help of a friend to take her son to daycare, apparently were unsuccessful. Respondent had the option in the 2011-2012 school year to transfer to another school to address the morning commute issues, but she chose not to. Although she had legitimate personal and professional reasons for choosing to remain at HMS, the fact remains that she elected not to pursue a course of action that may have addressed the problematic circumstances she found herself in. Under these circumstances, the undersigned concludes, albeit reluctantly, that Respondent's conduct——which took place over a period of two school years, after frequent admonitions, and after she had been placed on notice several times that her continued conduct would constitute gross insubordination——does, in fact, constitute gross insubordination. With respect to Respondent's absences in February 2013, the evidence indicates that Petitioner's Leave Office and Principal Warren unnecessarily delayed notifying Respondent that her leave request for February 2013 had been denied. The evidence gives rise to the inference that Respondent may have cut her leave short and returned to the work site had she been timely informed that her request had been denied. Moreover, Petitioner presented no competent evidence regarding the specific basis for the Leave Office's denial of Respondent's request, or for Warren's denial of Respondent's retroactive request on the same basis. Under these circumstances, the undersigned determines that Respondent's absences for the month of February 2013 should not be considered unexcused. However, even without considering these absences, Respondent's repeated tardiness over an extended period of time without proper leave documentation and after extensive prior notice of the consequences, is sufficient to establish gross insubordination. Misconduct in Office As more fully discussed below, Petitioner proved, by a preponderance of the evidence, that Respondent committed misconduct in office under both versions of rule 6A-5.056 in effect in the 2011-2012 and 2012-2013 school years, respectively. Specifically, Respondent's frequent and repeated tardiness during the 2011-2012 school year violated the Code of Ethics in the Education Profession because her conduct caused her to lose the respect and confidence of her colleagues. In particular, Respondent's frequent tardiness substantially undermined Surrancy's confidence in her reliability, and, thus, impaired her effectiveness in the school system. Respondent's frequent and repeated tardiness over the course of the 2012-2013 school year also constituted misconduct in office. Again, she violated the Code of Ethics in the Education Profession by failing to maintain the respect and confidence of her colleagues. Respondent's frequent tardiness adversely affected Warren's confidence in her reliability. Additionally, on the days when Respondent's tardiness necessitated her students being moved to another teacher's classroom, her students' learning environment was disrupted, and her own ability and that of her colleagues to effectively perform their duties was reduced. As a result, Respondent's effectiveness in the school system was impaired. Petitioner also charged Respondent with violating Policy 3210, Standards of Ethical Conduct, which provides that all employees are representatives of the Miami-Dade County School District and requires employees to conduct themselves in a manner that will reflect credit upon themselves and the school system. Respondent's frequent tardies over an extended period of time gave the appearance of disregard for school policies and did not reflect credit on her or on the school district. Moreover, Respondent did not protect her students from conditions harmful to learning on the days when they had to be moved to another teacher's classroom due to her tardiness.21/ Accordingly, Respondent violated Policy 3210. Respondent also violated Policy 3210.01, Petitioner's Code of Ethics. As found above, she did not protect her students from conditions harmful to learning on the days when she was so tardy that they had to be moved to another classroom. However, Respondent did not violate Policy 3430, Leaves of Absence. For the reasons discussed above, Respondent's absences in February 2013 should not have been determined unexcused; thus, she did not violate Policy 3430. Respondent also did not violate Policy 3121.01, Employment Standards and Fingerprinting of Employees. To the extent Petitioner argues that Respondent lacks good moral character based on having been arrested, Petitioner did not present any competent evidence regarding her arrests or failure to timely report them as required by school board policy. Respondent acknowledged that she had been arrested in July 2011 but testified that she had timely reported it, and that the charge ultimately was dismissed. Petitioner did not offer any competent evidence22/ to counter Respondent's testimony, which is deemed credible and persuasive. Factual Basis for Recommended Sanction The persuasive evidence establishes that Respondent did not purposely set out to violate school policies and Department of Education rules, but that circumstances coalesced such that Respondent found herself in the extremely difficult position of having to care for her very ill son and take him to daycare, then undertake a lengthy commute in morning traffic, without enough time to accomplish both. As unfortunate and trying as those circumstances were, they do not excuse Respondent from complying with the crucial and reasonable requirement that employees arrive to work on time.23/ Nonetheless, the evidence establishes that Respondent is an innovative, proficient teacher in the critical subject areas of science and math, and that she cares about performing her job well——to the extent that she declined an out-of-field teaching assignment, in part due to concern that she would not perform effectively in that assignment. As such, it is reasonable to infer that under less demanding circumstances, such as having a shorter commute or a later workday starting time, Respondent would perform her teaching duties proficiently and professionally. The circumstances in this case warrant upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013- 2014 school year, and denying back pay for the full period of her suspension. However, given the very trying circumstances Respondent faced in the 2011-2012 and 2012-2013 school years, and because the evidence indicates that under less oppressive circumstances Respondent likely would be an innovative, proficient, and professional teacher, the undersigned believes that terminating Respondent's employment would be excessively harsh and that Petitioner would lose a good teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013-2014 school year; denying back pay for the full period of her suspension; and reinstating Respondent's employment as a teacher at the start of the 2014- 2015 school year. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 31st day of March, 2014
The Issue The issues to be determined are whether Respondent violated section 1012.315, Florida Statutes; Florida Administrative Code Rules 6A-5.056 and 6A-10.081(1) through (5); and School Board Policies 6.30(2), (3)(b), and 6.301(2), as alleged in the Statement of Charges and Petition for Termination (Petition); and, if so, what penalty should be imposed for these violations.
Findings Of Fact Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the St. Lucie County School System. The authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. Respondent was employed by the School Board as a teacher at Fort Pierce Westwood High School. He worked for the School Board since at least September 2007, albeit originally at a different school. Respondent signed a professional services contract with the School Board on or about February 12, 2010. He is covered by the collective bargaining agreement between the School Board and the St. Lucie County Classroom Teachers’ Association (CBA), as stated in Article I, section A of the CBA. On October 28, 2011, Respondent was advised of a meeting to take place on November 1, 2011, regarding a School Board investigation into alleged inappropriate contact with students. There is no indication in the record whether Respondent attended the meeting or gave any information. There is also no indication whether the investigation referenced in the October 28, 2011, letter is the same investigation giving rise to these proceedings. On March 3, 2014, Maurice Bonner, the Director of Personnel for the School Board, provided to Respondent a Notice of Investigation and Temporary Duty Assignment (Notice). The Notice advised that Respondent was being investigated regarding allegations of inappropriate contact with students, and that he was being placed on temporary duty assignment as assigned by the Personnel Office. Respondent signed the letter acknowledging its receipt on March 14, 2014. On April 1, 2014, Genelle Zoratti Yost, Superintendent of the School Board, wrote to Respondent with a reference line entitled Notice of Intent to Terminate Employment. The letter states, in pertinent part: On March 21, 2014 you were arrested for violating Section 800.04(6)(a)(b), Florida Statutes, “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”[1/] Pursuant to the Arrest Warrant issued on March 21, 2014 you are not to be within 100 feet of Fort Pierce Westwood High School or Harbor Branch. As a result, you are unavailable to work on campus so your temporary duty assignment outlined in the notice of Temporary Duty Assignment provided to you on March 3, 2014 shall remain in full force and effect until further notice. Furthermore, you have not reported your arrest to the Superintendent within 48 hours as required. . . . Based on the information available to the School District there is sufficient information to charge you with violating the following [list of State Board of Education rule violations and School Board Policy violations]. . . . The April 1, 2014, letter notified Respondent that the superintendent would be recommending to the School Board that it terminate his employment, and provided him with notice of how he could request a hearing on the proposed termination. The letter also advised that, should he seek a hearing, the superintendent would recommend that he be suspended without pay pending the outcome of the hearing. Respondent signed the letter acknowledging receipt of it on April 3, 2014. Respondent requested a hearing with respect to his termination and was notified by letter dated April 23, 2014, that he was suspended without pay. Respondent’s request for hearing was forwarded to the Division, and the case was docketed as Case No. 14-1978. Because of the pendency of the criminal proceedings against Respondent, at the request of the parties, on September 30, 2014, Administrative Law Judge Darren Schwartz entered an Order Closing File and Relinquishing Jurisdiction, which closed the file with leave to re-open. On a date that is not substantiated in this record,2/ Respondent was tried by jury and convicted of seven counts of lewd or lascivious conduct in violation of section 800.04(6)(a) and (b) and nine counts of lewd and lascivious molestation in violation of section 800.04(5)(c)2. All 16 counts were second- degree felonies. On July 29, 2016, counsel for the School Board wrote to then-counsel for Respondent, advising him that in light of the jury verdict, notice was being given that on August 9, 2016, the superintendent would be recommending Respondent’s termination from employment. The letter also provided Respondent notice of his rights to a hearing in accordance with section 1012.33(6)(a). Counsel for Respondent notified the superintendent that Respondent continued to request a hearing in accordance with the CBA. On October 31, 2016, a Judgment and Sentence was entered in the case of State of Florida v. Dan Allen Hussan, Case No. 562014CF000857A (19th Judicial Circuit in and for St. Lucie County), adjudicating Respondent guilty of all 16 counts. Respondent was sentenced to 15 concurrent sentences of life in prison, with credit for 103 days served prior to sentencing. With respect to Count XVI, Respondent was sentenced to 15 years of sexual offender probation, consecutive to the sentence set forth in Count I. On November 7, 2016, Judge James McCann entered, nunc pro tunc to October 31, 2016, an Order of Sex Offender Probation with respect to Count XVI. The Order of Sex Offender Probation adjudicated Respondent guilty and set the terms for sexual offender probation following the life sentence. Respondent remains incarcerated. He also maintains that he is not guilty of the underlying charges. Petitioner contends that Respondent did not self-report his arrest as required by School Board policy. However, no competent, substantial evidence was presented to demonstrate Respondent’s failure to report. While a notice provided to him regarding this allegation was admitted into evidence, the accusation, standing alone, does not amount to evidence that the accusation is true.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order terminating Respondent’s employment based on a finding of just cause. DONE AND ENTERED this 25th day of April, 2017, 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 25th day of April, 2017.
The Issue The issue in this case is whether a high-school assistant principal made inappropriate remarks to two female students on campus during school hours, and then later harassed one of them, thereby entitling the district school board to suspend the administrator for 30 workdays without pay.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Anthony C. Brooks ("Brooks") had been employed as either a teacher or administrator in the Miami-Dade County Public School System for approximately 23 years. At all times relevant to this case, Brooks was an assistant principal at Miami Jackson Senior High School, where his primary responsibility was discipline. The operative contract of employment between Brooks and the School Board required Brooks to "observe and enforce faithfully the state and federal laws, rules, regulations, and School Board Rules insofar as such laws, rules, regulations, and policies are applicable to the position of employment." Pursuant to the contract, Brooks agreed "to become familiar and comply with state and federal laws, rules, regulations and policies of the School Board and of the Department of Education for which [he] w[ould] be held accountable and subject to[.]" The agreement entitled the School Board to suspend or dismiss Brooks for just cause including "the failure to fulfill the obligations under this Contract." The Alleged Inappropriate Remarks The School Board alleges that on February 12, 2004, Brooks told M. D., a female student, that she should consider becoming a model, and that he would take pictures of her at the beach. The School Board alleges further that, the same day, Brooks separately encouraged another female student, F. J., to think about modeling. The evidence presented at hearing failed persuasively to substantiate these charges. The findings that follow in this section, based on evidence that is in substantial conflict, depict the likeliest scenario derivable from the instant record,1 though the undersigned's confidence in the accuracy of some aspects of this historical narrative is relatively limited.2 On the morning of February 12, 2004, a security monitor called Brooks to a classroom where some students were creating a disturbance. Upon his arrival, the teacher pointed out to Brooks the four students who had been causing problems. Brooks asked them to step outside. One of the four was M. D. Brooks told the students, in effect, to straighten up. In the course of lecturing the students, Brooks said to M. D., "You could be a model or something like that." Brooks was not attempting to proposition M. D. His remark was intended to boost her self-esteem and encourage M. D. to set higher standards of personal behavior for herself. Later that day, Brooks ran into M. D. outside the cafeteria. M. D. was talking to a security monitor, and Brooks overheard her say, "Mr. Brooks said I could be a model." The security monitor loudly and rudely scoffed at that idea. Thereafter, Brooks took M. D. aside, to the doorway of the SCSI (indoor suspension) room, and warned her not to discuss her personal business with everyone. Sometime later (perhaps the same day), Brooks was walking in the cafeteria, and F. J., a friend of M. D.'s, stepped on his foot. F. J. continued on her way without pausing and sat down at a table outside the SCSI room. Brooks walked over to her and invited an apology. F. J. declined. Brooks informed her that he would "model" good manners for her and proceeded to deliver an apology. Then, he left. Soon M. D. and F. J. reported to their cheerleading coach that Brooks had expressed interest in taking them to the beach for a photo shoot. The coach passed this allegation along to the administration, which in turn called the school police and the State Attorney's Office. The prosecutor declined to press criminal charges against Brooks; the Office of Professional Standards ("OPS") requested a personnel investigation. Detective Pedro Valdes conducted the investigation. He interviewed M. D., F. J., Brooks, and Trust Counselor Patricia Manson (who disclaimed personal knowledge of the events in dispute). The detective evidently did not believe (or at least gave little weight to) Brooks's denial of wrongdoing, for he determined that the students' statements were sufficiently credible to support the conclusion that Brooks had violated a School Board rule prohibiting improper employee/student relationships. The detective's report announcing that this charge had been "substantiated" was released in July 2004. Having effectively been found guilty by the detective, Brooks was summoned to a conference-for-record ("CFR"), which was held on August 11, 2004. There, Brooks was given an opportunity to deny the charge (but not to confront M. D. and J., whose statements comprised the "evidence" against him). He failed to persuade the administrators that the detective had reached the wrong conclusion. The administrators issued several directives to Brooks, including the following: Refrain from contacting anyone involved in this investigation at any time. Refrain from inappropriate contact and/or comments with students. The Alleged Harassment On August 25, 2004, F. J. came to school dressed inappropriately, in a short skirt and tank top. At the beginning of second or third period, a security monitor named Frantzy Pojo noticed that F. J. was in violation of the dress code and attempted to remove her from class. The teacher refused to let F. J. leave with the security monitor. Faced with the teacher's obstructiveness, Mr. Pojo called Brooks, the assistant principal in charge of discipline whose portfolio included dress code enforcement. Mr. Brooks came to the classroom and spoke with the teacher. He asked that the teacher instruct F. J. to put on a jacket to cover up. The teacher——and F. J.——complied. The very next day, Mr. Pojo spotted F. J. and saw that she was, once again, not dressed appropriately. Mr. Pojo called Brooks to handle the situation. Brooks found F. J. in the library and agreed that she was in violation of the dress code. He observed that two or three other girls were also dressed inappropriately. Mr. Pojo and Brooks escorted these girls to the SCSI room and left them there. Brooks instructed the teacher-in-charge not to suspend the students but rather to let them call their parents and request that appropriate clothes be brought to school. F. J. called her mother and complained that Brooks was harassing her. F. J.'s mother became angry and arranged to meet with the principal, Deborah Love, that afternoon. When F. J., her mother, and Ms. Love met as scheduled, F. J. accused Brooks of having followed her to classes and singled her out unfairly for discipline in connection with the dress code violations. At Ms. Love's request, F. J. submitted written statements concerning the events of August 25 and August 26, 2004.3 Ms. Love believed F. J. and apparently had heard enough. Without investigating F. J.'s allegations or even asking Brooks to respond to them, Ms. Love prepared a memorandum, dated August 27, 2004, in which she charged Brooks with insubordination. Specifically, Ms. Love alleged that Brooks had violated the directive, given at the recent CFR, to refrain from contacting anyone involved in the investigation stemming from the allegation that Brooks had made inappropriate remarks to M. D. and F. J. On or about August 27, 2004, Ms. Love ordered Brooks not to return to campus but instead to report to an alternate worksite pending further action on the charges against him. At its regular meeting on December 15, 2004, the School Board voted to accept the recommendation of OPS that Brooks be suspended without pay for 30 workdays. Ultimate Factual Determinations Brooks's conduct was not shown to have been outside the bounds of accepted standards of right and wrong. He is therefore not guilty of immorality, as that offense is defined in Florida Administrative Code Rule 6B-4.009(2). Brooks did not fail to make a reasonable protective effort to guard either M. D. or F. J. against a harmful condition; had he neglected such duty, Brooks could have been disciplined for misconduct in office. Brooks did not intentionally expose either M. D. or F. J. to unnecessary embarrassment or disparagement; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not harass or discriminate against M. D. or F. J. on the basis of any improper consideration, such as race, color, or religion; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not exploit a relationship with either M. D. or F. J. for personal gain or advantage; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not constantly or continually refuse intentionally to obey a direct and reasonable order, which willful defiance, had he shown it, would have constituted "gross insubordination" under Florida Administrative Code Rule 6B- 4.009(4). Brooks did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Brooks did not violate School Board Rule 6Gx13-4-1.09, which prohibits unacceptable relationships and/or communications with students. Accordingly, it is determined that Brooks is not guilty of the charges that the School Board has brought against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Brooks without pay and (b) awarding Brooks back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate. DONE AND ENTERED this 17th day of October, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 17th day of October, 2005.
The Issue The issue is whether Respondent's behavior toward an assistant principal violated the prohibitions against misconduct in office, pursuant to Florida Administrative Code Rule 6A-5.056(2), and gross insubordination, pursuant to rule 6A-5.056(4), so as to constitute just cause for Respondent's dismissal, pursuant to section 1012.33(6)(a)2., Florida Statutes.
Findings Of Fact Petitioner has employed Respondent as a teacher since 2001. He has taught English at North Dade Middle School for the past nine years. For the 2015-16 school year, Respondent was supervised by principal Fabrice Laguerre and assistant principal Kayla Edwards. Following an observation of Respondent, Ms. Edwards submitted to the principal a report citing several teaching deficiencies. The principal, who is now a principal at another school, decided that Respondent was or might be in need of professional assistance in the form of a Performance Improvement Plan (PIP). Placing a teacher on a PIP requires the principal to provide Respondent with notice of a Support Dialogue Meeting. The record does not reveal whether the purpose of the Support Dialogue Meeting is to determine whether Respondent shall be placed on a PIP, to prepare the PIP, or to deliver an already- prepared PIP. Earlier, the principal had agreed with Respondent not to conduct any disciplinary meetings with Respondent without Respondent's union representative in attendance. Respondent wanted a witness to what might transpire during such a meeting, and the principal understood that this was the purpose of having a witness at each such meeting. Toward the end of the school day on December 15, 2015, the principal summoned Respondent to his office. Respondent did not know why he was being summoned to the principal's office. Respondent tried unsuccessfully to have the school's union representative in attendance, so Respondent reported to the principal's office without a representative. When Respondent arrived at the principal's office, he asked if he needed a union representative or other witness. The principal replied that Respondent could have a representative, but this meeting was merely to provide Respondent with notification of the "real" meeting, which was to be within 48 hours of delivery of the notice. The meeting to which the principal referred was a Support Dialogue Meeting. Despite the principal's assurance to the contrary, the December 15 contact seems to have involved more than merely delivering a notice of a Support Dialogue Meeting in a day or two. As the principal testified, as soon as Respondent entered the office, implicitly assenting to sufficient contact to receive the notice described by the principal, the principal invited Respondent to sit down at a table, at which Ms. Edwards was already seated. The mere delivery of a notice would not have required that Respondent take a seat and probably would not have required the attendance of Ms. Edwards, unless the principal wanted a witness to his delivery of the notice to Respondent. Still standing, Respondent read some papers in front of him on the table and correctly concluded that they reflected unfavorably on his teaching performance and the source of the information was Ms. Edwards. It is impossible to sort out exactly who said what at this juncture. Respondent testified that his first comment was that he could not attend the meeting without a witness, and Ms. Edwards replied, "boy, get in here, stop your drama, and sign these papers." The reference to "boy" is implausible. It seems unlikely that Ms. Edwards would have uttered such an insult and, if she had, it seems as unlikely that Respondent would have remained in the office after hearing this disrespectful appellation. Ms. Edwards may have spoken the remaining words, but they are inconsequential--direct and plainspoken, but not unprofessional or disrespectful. The principal testified more plausibly that Respondent looked up after examining the paperwork and announced that this better not be about his teaching because he had taught a "perfect" lesson to the class that Ms. Edwards had observed. The principal again invited Respondent to take a seat. Instead, Respondent characterized the PIP as part of a "witch hunt" and averred that Ms. Edwards did not know what she was doing when observing Respondent. This testimony of the principal is credited. Past observations of Respondent performed by other administrators were satisfactory. Respondent and Ms. Edwards appear to have had some difficulties in the past. Most importantly, as noted above, Respondent had good cause to doubt that the sole purpose of the December 15 meeting was to deliver a notice of a Support Dialogue Meeting. Even the Notice of Specific Charges characterizes the December 15 meeting as the Support Dialogue Meeting itself. Respondent thus could reasonably believe that he could still prevail upon the principal not to implement a PIP or to design a less-elaborate PIP. On these facts, in a meeting attended exclusively by himself, the principal, and Ms. Edwards, Respondent's questioning the qualifications of Ms. Edwards did not constitute just cause for any adverse employment action, as long as he did not do so in bad faith, and nothing in the record indicates that he did. The principal testified that Ms. Edwards refrained from insulting Respondent and, more specifically, said nothing about where he went to college. Ms. Edwards' testimony candidly does not bear out the principal's testimony on this point. Ms. Edwards testified that she and Respondent each inquired of the other where he or she went to college, implying an inferiority in the other's school of higher learning. However, the parties' "questions" as to academic pedigrees are found to have been intended as nothing more than mild insults--that is, slights--and, as such, insubstantial. The principal also testified that, during this exchange, Respondent pointed a finger at Ms. Edwards with a "relaxed hand." This testimony is credited, but any implication that such a gesture was intended or perceived as threatening is rejected. Respondent's gesture was for mild emphasis: textually, this emphasis would be expressed by underlining, not boldface. This marks the end of the portion of the December 15 incident alleged as proof of misconduct in office. Interestingly, the testimony of Ms. Edwards and the principal set forth in the preceding two paragraphs does not describe Respondent in terms suggesting any loss of composure, but rather in terms not inconsistent with an employee unapologetically advocating for himself. The principal next asked Ms. Edwards to make a copy of a document, which necessitated her leaving the office for a few moments. But even this seemingly innocuous act proved fraught. Returning, Ms. Edwards did not see Respondent standing behind the door, and, when she opened it, the door struck Respondent harmlessly. Trying to seize a potential advantage, Respondent, implying that the act had been intentional, asked the principal if he had seen what had happened. The principal sensibly replied that Ms. Edwards could not see Respondent through the solid door, and the bump was accidental. The principal then ushered Ms. Edwards and Respondent out of the office. Up to this point, there had been no other witnesses because the office door had been closed--or, as to the last matter, closing. Once the unhappy trio left the office, the principal and Ms. Edwards testified that Respondent "kept going after" Ms. Edwards, now loud enough for others to hear, and caused much embarrassment. Ms. Edwards added that she was crying. Even though not alleged as grounds for adverse employment action, from Petitioner's perspective, this testimony from the principal and Ms. Edwards is important because it could provide a basis for inferring an earlier lack of composure on Respondent's part. However, as assessed by the Administrative Law Judge, this testimony is important because it is untrue and undermines the credibility of the principal and Ms. Edwards as witnesses. Three independent witnesses to the exit of the edgy ternion from the principal's office uniformly portrayed Respondent as not agitated. The first of these witnesses was a secretary, who was in her office two doors down from the principal's office. The secretary heard absolutely nothing, even though she was close enough to hear anything that might have been said, even if not loudly. Her testimony is credited. Ms. Edwards approached Respondent to give him the papers that she had copied. Ms. Edwards testified that she did not want Respondent to see that she was crying, so she extended her arm out in Respondent's direction and released her grip. It is hard to understand how, with her eyes averted from Respondent, Ms. Edwards would have known if Respondent was looking at her to receive the papers. In her version, Ms. Edwards released the papers and, for whatever reason, Respondent did not grasp them before they fell to the floor. Ms. Edwards' testimony is not credited, except for the papers falling to the floor. For his part, Respondent testified that he was the one crying because Ms. Edwards employed a phrase that reminded him of his recently deceased mother. Based on the testimony of the three independent witnesses, which omits any mention of tears and, to varying degrees, is inconsistent with such emotion, the crying testimony of Ms. Edwards and Respondent is rejected as melodramatic embellishment. Respondent testified that Ms. Edwards thrust the papers into his chest, leading with her closed hand. This testimony, which is credited, is corroborated by two custodians who witnessed the attempted exchange. The exchange was attempted because everyone agrees that the papers fell to the ground where the principal gathered them up. One custodian testified that Ms. Edwards, who was visibly agitated, walked quickly up to Respondent and, without much force, pressed the papers into the chest of Respondent, who grinned in response. The other custodian testified that Ms. Edwards, with her hand leading, "very strongly" "snapped" the papers into Respondent's hands "and stomach area," but this custodian thought that the two of them were playing around. Despite minor discrepancies in their testimony, the three independent witnesses clearly establish that Respondent had not lost his composure. Based on the foregoing, Petitioner failed to prove misconduct in office. Specifically, Petitioner did not prove that Respondent failed to treat Ms. Edwards with dignity or exercised poor judgment by insulting her and objecting to her supervisory qualifications. Each party slighted the other's academic pedigree; this inconsequential lapse, committed in the presence of only the principal, did not render objectionable Respondent's behavior in the incident. His questioning of Ms. Edwards' qualifications to observe his teaching would raise a different factual issue if directed toward his students or even uttered in the presence of his students, but raising this issue with the principal was appropriate and raising it in the presence of Ms. Edwards, whom the principal had included in the meeting, was forthright and timely. Respondent raised this issue at what he might have reasonably assumed was his Support Dialogue Meeting--meaning that this might have been his last chance to avoid a PIP or at least avoid a more elaborate PIP. Petitioner failed to prove any aggression by Respondent--unwarranted or warranted--or that Respondent was intimidating, abusive, harassing, and offensive toward Ms. Edwards. Petitioner failed to prove that Respondent made malicious and untrue statements in defending this case. His testimony that Ms. Edwards referred to him as "boy" has been discredited, but the record fails to establish that this testimony was a knowing falsehood. Petitioner failed to prove that Respondent's effectiveness has been impaired by anything that he said or did in connection with the December 15 meeting. Petitioner has failed to prove that Respondent committed gross insubordination. As alleged in the Notice of Specific Charges, this count fails even to state a claim of gross insubordination under the rule for the reasons set forth in the Conclusions of Law.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Notice of Specific Charges and reinstating Respondent with "back salary," as provided in section 1012.33(4)(c). DONE AND ENTERED this 2nd day of December, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2016.
Findings Of Fact Davis began working with the Board on September 16, 1974, as a custodian in the maintenance department. In 1980 Davis was transferred to the Stewart Street Elementary School as a custodian. In 1988 Davis was transferred to the Carter-Parramore Middle School as a custodian. On March 23, 1992, Davis was suspended by the Superintendent with pay. On March 25, 1992, Davis was recommended for termination and was suspended without pay by the Board. The suspension and recommended termination were the result of accusations made by Tomeka Mitchell and Tiesha Parker that Davis had made sexually explicit comments to them and had inappropriately touched them. Tomeka and Tiesha both testified regarding their versions of what occurred on January 28, 1992. Two other students, Cheryl Denise Roberts and Lashea Alexander also testified. Based on the demeanor of these witnesses and on the pervasive conflicts in their versions of the events, it is determined that their testimony is not credible or worthy of belief. Tomeka testified that on January 22 or 23, 1992, she and "Sherry" were going to meet Tiesha near the gym and that Davis stopped them, put his arms around Tomeka and Tiesha and said "This is what he wanted" and opened her button. She said nothing else happened. However, she apparently reported to HRS that Davis had touched her breast and unbuttoned her blouse. HRS determined that there was no evidence to verify these allegations. [See Finding of Fact #14] Tiesha said she was going to meet Tomeka, who was already talking to Davis, and when she and Tomeka began to walk away, Davis asked where they were going, called them over to where he was standing, and told them he "wanted some." When they asked what he "wanted," she said Davis pulled their heads together, tried to open her blouse which was buttoned, and then he "did it to Tomeka and looked down her shirt." Tiesha said that Cheryl Roberts and Lashea Alexander were standing next to them and all four discussed what happened and decided to go to the office and report it. On cross-examination, Tiesha acknowledged that Tomeka's blouse was unbuttoned before Davis called them over. Cheryl testified that she saw Davis look down Tomeka's blouse and that she (not Tiesha) was with Tomeka when Davis said he "wanted some." However, when Cheryl talked to Mr. Pace, the principal, on January 28, 1992, she said she had not seen anything, but was reporting what she had been told by Tomeka and Tiesha. Additionally, the information given by Cheryl at the time of the incident, the testimony she gave in her deposition on May 14, 1992, and her testimony at the hearing were inconsistent. Finally, Cheryl never mentioned that Davis had allegedly tried to look into Tiesha's blouse. Lashea's testimony was also contrary to that of Tomeka and Tiesha. According to Lashea's version, Tomeka and Tiesha had told her that Tomeka was afraid to go to class because Davis might say something to her, so Tiesha walked Tomeka part way to class. Lashea was near the gym with Cheryl and she saw Davis try to look into Tomeka's blouse. Lashea and Cheryl discussed what they had seen and Tomeka and Tiesha came back to the gym. Lashea told Tomeka that Davis had tried to look into her blouse and Tomeka said "Yeah, he tried to, but I didn't let him." Lashea denied that Davis tried to look in Tiesha's blouse. However, Mr. Pace recorded that on January 28, 1992, Lashea had not seen anything and had only told him what she was told by Tomeka and Tiesha. The only conclusion that can be drawn from the demeanor of these girls and from the differences in their stories is that no sexually explicit statements were made by Davis and that he did not he touch them in an inappropriate manner. The version of the incident given by Davis is credible and worthy of belief. On January 28, 1992, Davis saw Tomeka and Tiesha in the open corridor near the gym after the final bell for sixth period had rung. They were heading away from the gym. Davis asked them what class they were supposed to be in, and by their responses he thought they were supposed to be in gym. Tomeka's blouse was open and the top few buttons were undone. Davis told her to button her shirt up and he said he was sure that her parents wouldn't want her going around campus "looking like a 10 whore." Davis then told them they should be in class and he put his hand on the upper arm of each girl to guide them in the direction of the class. When it appeared they were going in the correct direction, Davis left them. Davis is a credible witness and his statements at all times between January 28, 1992, and the hearing have been consistent and forthright. According to Mr. Pace, the principal, and Lt. Morris, the school resource officer, Davis is a man of his word who is known to be honest and trustworthy. Further, Davis' reputation in the community is one of honesty and truthfulness. John D. Mathers, a Child Protective Investigator for HRS, sent a letter to Bryant dated March 18, 1992, and therein stated "The victim's statements of language addressed them by Dr. Davis [sic] meets departmental guidelines to verify the allegation of sexual exploitation, i.e. indecent solicitation of a child or explicit verbal enticement, and closing of report with classification of proposed confirmed." While this sentence is so poorly written as to render it unintelligible, Bryant interpreted it as saying that HRS had found that Davis had made inappropriate and explicit sexual comments and that these allegations of sexual exploitation were verified. In fact, the letter from Mr. Mather doesn't quite say that. Additionally, Mather said in his letter that Tomeka Mitchell told him that Davis had touched her left breast and had unbuttoned her blouse, but that no other witness verified Tomeka's allegations, and that those allegations of sexual maltreatment were not classified as proposed confirmed. The letter to Davis from Bryant dated March 23, 1992, advised Davis that the reason for the suspension and recommended termination was Davis' violation of Gadsden County Board Rule 5.112 which provides in pertinent part: Any member of the non-instructional staff may be dismissed by the School Board during his term of appointment, when a recommendation for dismissal is made by the Superintendent, giving good and sufficient reason therefor. Good and sufficient reason shall include but not be limited to: * * * (h) Violation of law, State Board of Education Rules, or School Board Rules. Upon investigation, it has been determined that on January 22, 1992 and January 28, 1992, you made inappropriate and explicit sexual comments to several female students at Carter- Parramore Middle School. The Department of Health and Rehabilitative Services has also completed its investigation and has advised me that based on its investigation and interviews with the victims, their statements regarding your comments verify the allegations of sexual exploitation. Such behavior is violative of Gadsden County School Board rules. This determination by Bryant was based on the "information" he was given in the "final report" prepared by Pace and on the HRS letter. Bryant was unable to articulate the bases for his determination, but that is not surprising when the origin and nature of the "information" he considered is examined. The three men who gathered the information were Cecil Morris, the school resource officer employed by the Gadsden County Sheriff's Office; Rocky Pace, the principal at Carter-Parramore; and James W. Brown, Jr., the assistant superintendent for administrative services. According to Bryant, he was given a "final report" from Pace in a letter dated February 7, 1992, (Exhibit 4) with attachments: Pace's letter to Brown dated January 28, 1992, (Exhibit 5); a case report filed by Lt. Morris (Exhibits 9a and 9b); and a letter of reprimand to Davis from Pace (Exhibit 3). In that letter Pace advised that he had a tape of the interviews of Tomeka, Tiesha, a girl named Aquiana Delapierre, and Davis, however, Pace did not give Bryant the tape until sometime in March, 1992, when Bryant asked for it. Bryant never listened to the tape, but instead read written statements from the girls. No one was able to establish where these written statements came from or how they came to be in Bryant's possession. They first appeared in Lt. Morris' case file when he opened it to prepare for a deposition on July 2, 1992. He doesn't know where they came from or who took them. Pace knew nothing about the statements and did not give them to Bryant. Brown also had no knowledge of the statements. Ironically, there was no written statement from Davis. Bryant says he made his determination based on these written statements which he assumed contained the same information as the tape which he never heard. Bryant did not identify any information which he reviewed that set forth Davis' version of the event. The case report prepared by Lt. Morris contained a brief summary of the accusations made by Tomeka and Tiesha, but Morris apparently never even talked to Davis. In fact, from the testimony of Pace, Morris, and Brown, it cannot even be determined whether any investigation was ever done. Morris talked to Tomeka and Tiesha briefly and then took them to Pace. Pace taped statements from Tomeka and Tiesha and Davis. Morris was in and out of the room during the taping of statements from Tomeka and Tiesha, but he did not hear much of what they said. Brown then came to the school and again talked briefly to Cheryl Roberts because he knew her parents and to some other girls, but he doesn't remember their names. Morris had no investigatory responsibilities in the matter. Pace did no further investigation after he took the taped statements because Brown came to the school and Pace was informed that Bryant had put Brown in charge of the investigation. Brown says he was not in charge of the investigation, but had told Pace to do a thorough investigation and then report his findings to Bryant. The only conclusion that can be drawn is that none of these men did any investigation beyond the interviews conducted on January 28 and 29, 1992. The letter from Pace to Bryant (Exhibit 4), which Bryant calls the "final report," clearly states that Pace thought the investigation was still on going and that action beyond the letter of reprimand (Exhibit 3) may have been warranted at a later date. However the only continuing action involved that of HRS in its abuse investigation, which resulted in a letter which advised that no touching or unbuttoning had occurred. Bryant's accusations against Davis were limited to allegations of explicit and inappropriate sexual comments. These reasons given for the suspension and recommended termination must have been based almost entirely on the letter from Mather at HRS since there was so little competent and probative information considered by Bryant. However, the statements made by Mather in his letter are insufficient to show whether HRS actually took any action against Davis in this matter and no evidence was presented to show whether any such action was taken. Since Bryant never reviewed any statement by Davis regarding his version of the events, Bryant never knew that Davis' words and actions in trying to get the girls to go to their class and to get Tomeka to straighten and button her clothes were routine for Davis. From the time Davis was assigned to Carter-Parramore in 1988 until March 18, 1991, a Mr. White had been the principal at that school. White had asked Davis to assist in keeping order at the school and had authorized Davis to open the gym on cold mornings at around 7:15 a.m. so that early-arriving students could be warm. At times, Davis was the only Board employee on campus and he was to remain in the gym to keep order until other adults arrived. White also used Davis' assistance to break up fights and control campus access by non- students during the school day. With White's knowledge and consent, Davis also directed students to go to class when they were not where they were supposed to be, to straighten up their attire or behavior, and to stay in school and not skip class. Mr. White died unexpectedly in March, 1991, and Pace became the acting principal and ultimately the principal. Pace knew of all these activities by Davis and never told him to restrict himself to duties directly related to his job as head custodian. Pace acknowledges that Davis was friendly and interacted with students and pitched in wherever he was needed. It was entirely consistent with these acknowledged activities of Davis that he would stop two students who were outside after the sixth period bell had rung, would direct them to go to class and would insist that one of them straighten her clothing which was unbuttoned and allowed her breasts to be seen. Finally, the alleged matter involving Aquiana Delapierre must be examined. Aquiana made an allegation against Davis that he said he "wanted some" from her also. Aquiana was subpoenaed to testify at the hearing but she failed to appear. All other documentation of these allegations constitutes hearsay and absent her live testimony, that hearsay cannot form the basis for any findings of fact. Exhibit 9a is the report prepared by Lt. Morris regarding Aquiana's allegations. It is insufficient to support a finding about the alleged incident. Davis was employed pursuant to an annual contract. His contract had been renewed yearly for the preceding eighteen years. Davis had always received satisfactory job ratings. Because of the recommended termination and Davis' suspension in March, 1992, no recommendation or action was taken to renew his annual contract for the 1992-93 school year. Davis' contract for the 1991-92 school year expired on June 30, 1992. Davis has no statutory entitlement to renewal of his contract, but no evidence was presented to show any reason why his annual contract would not have been renewed but for this case. Further, Davis' position has not been filled by another employee. The clear fact is that Davis' contract would have been renewed but for these wrongful allegations and this action which followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Gadsden County enter a Final Order and therein: Award to Charlie C. Davis back pay for the period from March 25, 1992, until the expiration of his annual contract. Reinstate Charlie C. Davis to his position as head custodian at Carter- Parramore Middle School and renew his annual contract for that position for the entire 1992-1993 school year. Award to Davis back pay for the period covered by the annual contract for 1992-1993 during which has not been working or being paid. Deny the request for Davis' attorney's fees and costs necessitated for his defense against the suspension and termination on March 25, 1992. DONE and ENTERED this 23rd day of September, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2375 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Gadsden County School Board 1. Proposed findings of fact 1-7, 10-14, 16, 17, 19, 21, 22, 24, 25, 27, 29-35, and 38-41 are subordinate to the facts actually found in this Recommended Order. 2. Proposed findings of fact 18, 20, 26 and 37 are irrelevant to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Charlie C. Davis Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5. Proposed findings of fact 6-18 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 9, 15, 23, 28, and 36 are unsupported by the credible, competent and substantive evidence. COPIES FURNISHED: Robert H. Bryant, Superintendent Gadsden County School Board Post Office Box 818 Quincy, FL 32351 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400 Deborah J. Stephens Attorney at Law The Ausley Law Firm 227 South Calhoun Street Tallahassee, FL 32302 David Brooks Kundin Attorney at Law Dobson & Kundin, P.A. Post Office Box 430 Tallahassee, FL 32302
The Issue The issue is whether Petitioner has just cause to place Respondent, a classroom teacher, on administrative leave without pay from November 20, 2013, through the remainder of the 2013- 2014 school year due to Respondent’s excessive absenteeism, as alleged in the December 19, 2013, Statement of Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at PSLHS, a public school in St. Lucie County, Florida. Respondent has been employed by the District for approximately 20 years. Respondent has a professional services contract pursuant to section 1012.33. As a classroom teacher, Respondent is charged with instructing high school students. Regular attendance is considered by Petitioner to be an essential function of the position of classroom teacher. Pursuant to Board Policy 6.549(1)(a), Respondent was entitled to four days of sick leave as of the first day of employment of each school year and thereafter earned one sick day for each month of employment, for a maximum of ten sick days per school year. 2012-2013 School Year During the 2012-2013 fiscal year, Respondent was assigned to teach intensive math classes to students who struggle to pass required state exams required for graduation. Hargadine, in coordination with Petitioner’s Human Resources Department, directed Assistant Principal April Rogers (Rogers) to meet with Respondent on October 2, 2012, to address Respondent’s pattern of absenteeism and the impact it was having on students, and to explore the possibility of accommodations if his frequent absences were caused by a health condition. At least one student asked to be removed from Respondent’s class due to the frequency of Respondent’s absences. As directed, on October 2, 2012, Rogers met with Respondent and discussed Petitioner’s concerns that Respondent’s absences resulted in his students missing math instruction for 39 percent of their scheduled classes. Respondent was notified that he had already exhausted his available sick leave and he had not properly filled out leave requests in a timely manner. During this meeting, Respondent acknowledged that his absences had a negative impact on students. This conference was memorialized in a Summary of Conference dated October 2, 2012, issued to Respondent from Rogers. After the October 2, 2012, meeting, Respondent was also absent on October 16 through 19, 2012. On October 23, 2012, Rogers issued a Letter of Concern to Respondent detailing his continued excessive absenteeism and failure to timely request leave. The letter advised that Respondent’s absenteeism amounted to 17 of 42 instructional days and equated to 40 percent of lost instructional time for Respondent’s students. This letter reiterated that Respondent’s absences directly affect his students’ educational success. In addition to Respondent disrupting the continuity of the classroom by failing to attend work, Respondent also failed to supply adequate lesson plans and/or provide for student instruction while he took unapproved leave. On several occasions, Hargadine or her assistant principal had to create or add to the lesson plans to enable a substitute to teach Respondent’s classes. Respondent’s absenteeism and lack of proper notice of his absences resulted in his students being “taught” by individuals who did not have a college degree in mathematics, or even education, as some of these individuals were substitutes (who only need a high school diploma), para-educators, and even clerical workers. When staff members were required to provide coverage for Respondent’s classes, it negatively impacted both students and co-workers. For example, if a clerical worker or para-educator was called to provide coverage for Respondent’s classes, their own work would have to wait and they would not be able to complete their own specific job duties in order to ensure coverage for Respondent’s students. After receiving the October 23, 2012, Letter of Concern, Respondent was also absent on October 31, November 1, November 2, November 5, and November 6, 2012. As the assistant superintendent for Human Resources, Ranew assists site-based administrators (principals and assistant principals) concerning staff discipline and adherence to policies and procedures. Rogers requested Ranew’s assistance in addressing Respondent’s absenteeism. On November 6, 2012, Ranew issued a letter to Respondent regarding his excessive absenteeism. This letter from Ranew reminded Respondent of the importance of him submitting leave requests because his school would not know of his absence even if he properly requested a substitute teacher using the AESOP (computerized) system. By this letter, Ranew also attempted to initiate the “interactive process” required by the Americans with Disabilities Act (ADA). Although Respondent had not identified himself as a “qualified individual with a disability” within the meaning of the ADA, his excessive absenteeism suggested that he might need an accommodation if his absenteeism was being caused by a medical condition. The November 6 letter stated, “to the extent that your absenteeism is being caused by medical condition, the District may be agreeable to allowing you to take a leave [of absence] to accommodate such a condition, if that would help. In the event you realize that you are unable to regularly be at work due to a medical condition, you should consider promptly requesting an extended leave of absence (e.g., for this semester or the school year), and the District would be willing to consider such a request.” To determine Respondent’s potential eligibility for an accommodation pursuant to the ADA, Ranew specifically requested that Respondent’s doctor provide documentation clarifying: “a) any specific condition/impairment that Respondent has, as well as the cause; b) any restrictions/limitations on Respondent’s work duties as a teacher; c) the expected duration for each limitation or whether it is permanent; d) whether the condition is controllable with the use of medication, and if yes: what is the mitigating effect of this medication; and whether Respondent could fully perform his job duties, with the aid of such medication.” In response to Ranew’s letter, Respondent provided the District with a doctor’s note from Dr. Kenneth Palestrant dated November 7, 2012, stating that the majority of Respondent’s visits to the clinics occur between the months of January through May and September through December (effectively during the calendar school year) and speculated that Respondent “may” be exposed to allergens in the school building or in his classroom. Dr. Palestrant explained that Respondent was being treated with antibiotics and allergy medications and recommended Respondent receive an allergy test from an allergist to identify the specific allergens. Dr. Palestrant found that other than the potential environmental exposure to an allergen, he found “no reason [Respondent] cannot perform his full duties as a school teacher as he has no impairment and the medications he has been given have no mitigating effect upon his performance.” After receiving Dr. Palestrant’s November 7, 2012, note, and after receiving an e-mail from Respondent in which he wondered if something in his classroom might be causing his medical condition, Ranew asked Sanders to inspect Respondent’s classroom. Sanders’ job duties would require him to facilitate any remedial action with regard to Respondent’s classroom, should one be needed. In response to this request, Respondent’s classroom was inspected but nothing of concern was discovered within the room. Nonetheless, the classroom was sanitized using two methods: with an ozone machine to kill bacteria and other germs, including mold, and also with a fogger using disinfectant that kills microorganisms, bacteria, and mold, as a precaution. On November 15, 2012, Respondent sent an e-mail to Ranew, informing her that he was “being evaluated by an Allergist, and will be setting up a colonoscopy per doctor’s orders Tuesday, [November 20, 2012].” On November 15, 2012, Ranew sent an e-mail to Respondent requesting that he provide her with an allergist report when complete. On November 16, 2012, Respondent sent an e-mail to Ranew in which he discussed beginning to take a new allergy medicine, and promised to fax the allergist report to her. Ranew issued a letter to Respondent dated December 21, 2012, advising him that she had yet to receive an allergist report, again requesting such a report or medical clarification. Ranew’s December 21, 2012, letter also reminded Respondent that regular, consistent, punctual attendance, and working a full assigned workday are essential functions of his position as a classroom teacher. Although Respondent did not request leave under the Family and Medical Leave Act (FMLA), when he failed to provide the requested allergist report five weeks after Ranew requested it, and Respondent continued his pattern of excessive absenteeism, the District advised that it intended to designate his absences as FMLA-qualifying. Ranew’s December 21, 2012, letter to Respondent again requested clarification from Respondent’s doctor/allergist, with a focus on “whether there is a modification or adjustment to the work environment that will enable you to perform the essential functions of [your] position (classroom teacher).” Respondent was told, “[i]n the event that you believe that something such as trees, grass, or something else near your current classroom/school may be causing your condition, which has resulted in many absences, the [School] District is willing to consider a request to transfer you to another location.” Notably, Respondent did not provide any information from a health care provider which suggested any work modification would enable him to perform the essential functions of his job, nor did he take advantage of Petitioner’s offer of a transfer to another location. In response, Respondent emailed Ranew on December 29, 2012, advising that his allergy test would be conducted on January 3, 2013, and he would provide the results to her as soon as he received them. Respondent also expressed interest in obtaining information regarding short-term disability leave. On January 8, 2013, Ranew advised Respondent that if he desired to take leave in connection with his private insurance company’s short-term disability policy, she requested that he advise her “as soon as possible as the [School] District may be able to accommodate you with an extended leave.” There is no evidence that Respondent pursued Ranew’s offer for an accommodation in connection with short-term disability. By letter dated January 8, 2013, Ranew advised Respondent that she still had not received a copy of his allergist’s report, and she “had been trying to accommodate [Respondent], but it is difficult to do when the information [the School District] need[s] is still not provided.” Ranew again reminded Respondent that his students needed continuity in the classroom and, if he was unable to provide that, other arrangements would need to be made for the upcoming semester. Respondent provided Ranew with an allergist report dated January 18, 2013. The report explained that Respondent tested positive for multiple allergens, and recommended treatments, including immunotherapy (allergy injections), prescribed medications (nasal sprays), and surgery (balloon sinuplasty). Respondent’s allergist identified Respondent being allergic to 42 antigens, including cats, dogs, various grasses, weeds, trees, dust mites and cockroaches, and mold. Respondent’s allergist recommended Respondent undergo surgery, and Petitioner permitted Respondent to take FMLA leave for such surgery. Respondent was also permitted to intermittently use all remaining FMLA leave available to him, which he exhausted and which expired on March 28, 2013, due to the conclusion of his FMLA designated 12-month period. In addition to utilizing all FMLA leave available, the District also provided an additional 21 days of unpaid leave during the remainder of the 2012-2013 school year to Respondent, which was above and beyond his allotted sick leave, as well as above and beyond the 60 days of FMLA leave to which he was entitled. During the 2012-2013 school year, Respondent was absent 89 out of 191 possible work days, which accounts for an absenteeism rate of 48 percent. During the 2012-2013 school year, Respondent only worked 772.50 hours. Although Petitioner designated additional unpaid days as FMLA, Respondent was not eligible for additional FMLA leave beginning in March 2013 through March 2014 because he had not worked the requisite number of hours in the preceding 12- month period to be eligible for FMLA leave. 2013-2014 School Year On August 9, 2013, prior to the beginning of the 2013- 2014 school year, Ranew sent a letter to Respondent regarding his excessive absenteeism; explaining that his regular attendance was expected during the upcoming 2013-2014 school year; that his students need continuity in the classroom and if he was unable to provide that continuity, that other arrangements needed to be made for the next school year; that he should not expect to be automatically extended any additional unpaid leave during the 2013-2014 school year; and he would only receive the sick leave to which he was already entitled. Ranew advised Respondent that when he returned for work at the beginning of the 2013-2014 school year he would have four days of permitted sick leave advanced to him, and would accrue one additional day at the end of each month from August through February. In this letter, Ranew also told Respondent that it was her understanding that the sinus surgery that he underwent was part of his treatment plan to resolve the sinus and allergy issues which seriously impacted his attendance (during the 2012- 2013 school year) and that his chronic sinusitis was expected to improve post operatively. Respondent did not challenge or correct Ranew’s understanding on these issues and did not indicate that additional absences were anticipated. Ranew had serious concerns about the lack of consistent instruction for Respondent’s students due to Respondent’s absenteeism. Only 11 of Respondent’s 94 students passed the standardized math examination required for graduation in the 2012-2013 school year, which is approximately a 12 percent pass rate. This was significantly lower than the 50 percent pass rate of Respondent’s colleagues who also taught the same type of “struggling” math students. In order to minimize the potential disruption to students caused by excessive absenteeism, Respondent was assigned to teach accounting classes for the new school year which are not courses required for graduation. Respondent was also assigned to a different classroom, in a different building, for the 2013-2014 school year. As of October 3, 2013, Respondent was absent on August 27, 28, 29, 30, and September 5, 9, 20, 23, 25, 26, and October 2, 2013, well in excess of the sick leave that he was permitted to take in accordance with Board policy. By letter dated October 3, 2013, Ms. Ranew wrote to Respondent advising him that his pattern of absenteeism has a direct negative impact on an orderly learning environment and referring to her August 9 correspondence wherein she directed Respondent to advise the District if he needed leave above and beyond the sick days that he was permitted to take. Ranew advised Respondent that he had not provided the requested medical documentation that would support that he had a medical condition necessitating leave from his job, but that the District was continuing its attempt to engage Respondent in an interactive process concerning his medical condition, and again requested documentation from Respondent’s doctor addressing his recent absences and his current condition. In response to Ranew’s October 3, 2013, letter, Respondent submitted a doctor’s note dated October 9, 2013, which advised that Respondent’s condition “can be treated with nasal sprays and intermittent antibiotics” but raised the potential for future treatment to include additional surgical procedure(s). Importantly, the doctor’s note clearly explained that Respondent “can perform as a teacher with [his medical conditions], though he may notice hearing loss changes whenever he has middle ear fluid.” The October 9, 2013, doctor’s note Respondent submitted accounted for four of his absences in August and two of his absences in September, but failed to address the other eight absences which he incurred during September and October 2013. Even after receiving Ms. Ranew’s October 3, 2013, letter, Respondent was absent on October 9, 21, and 22, 2013. As of October 24, 2013, Respondent was absent 14 days out of 46 instructional days for the 2013-2014 school year. Ranew worked with Yost in the decision to recommend to the Board that Respondent be placed on administrative leave without pay. The basis for that recommendation was Respondent’s excessive absenteeism and failure to follow protocol for sick leave. By letter dated October 24, 2013, Yost advised Respondent that she was recommending his placement on a leave of absence specifically because of his continual excessive absenteeism, which had been a constant disruption to the classroom and directly impacted an orderly, continuous learning environment for his students. Yost believed that recommending Respondent be placed on leave without pay was not disciplinary in nature, but rather done to provide him an accommodation to resolve any issues which had caused his excessive absenteeism. On October 24, 2013, Yost placed Respondent on “home assignment” with pay through November 19, 2013, at which time the Board voted to accept Yost’s recommendation to place Respondent on leave without pay for the remainder of the school year. The Charges Against Respondent In its Statement of Charges in Support of the Placement on Administrative Leave Without Pay filed on December 19, 2013, the District advanced four theories for Respondent’s leave without pay: incompetency, gross insubordination, willful neglect of duty, and misconduct in office. “Incompetency” is defined in Florida Administrative Code Rule 6A-5.056(3) as, “the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.” “Gross insubordination” is defined in rule 6A-5.056(4) as “the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties.” See Fla. Admin. Code R. 6A-5.056(2)(c). “Willful neglect of duty” is defined in rule 6A-5.056(5) as the “intentional or reckless failure to carry out required duties.” “Misconduct in Office,” according to rule 6A-5.056(2), is satisfied by a showing of one or more of the following: a violation of the adopted school board rules, a violation of the Code of Ethics of the Education Profession in Florida (as adopted in Florida Administrative Code Rule 6B-1.001), or behavior that disrupts the student’s learning environment. The Board’s Policy 6.301(3)(b) identifies a variety of terminable offenses including: Insubordination * * * (x) Failure to follow a direct order in normal performance of employee’s job * * * Failure to notify supervisor and receive permission for one or more consecutive workdays’ absence Unsatisfactory work performance Excessive absences or tardiness Neglect of duty Unauthorized absences * * * (xix) Violation of any rule, policy, regulation, or established procedure * * * (xxix) Any violation of the Code of Ethics of the Education Profession, the Principles of Professional Conduct for the Education Profession, the Standards of Competent and Professional Performance, or the Code of Ethics for Public Officers and Employees * * * (xxxiv) Failure to correct performance deficiencies The finding that Respondent violated one and/or multiple Board policies relating to his excessive absenteeism necessarily shows that he is guilty of “misconduct in office.” Respondent’s Defenses Reason for Absences Respondent does not dispute his record of absenteeism or the District’s record of communicating its concern regarding his chronic absenteeism and its effect on his students. Rather, Respondent asserts that his absenteeism was related to the environmental conditions at PSLHS. Respondent believes that he suffered from chronic sinus problems, headaches, and repeated scratchy throats due to possible exposure to mold or other allergens at the school which caused many of his absences. According to Respondent, PSLHS suffered storm damage in 2008 that resulted in mold growing around his classroom door. After school authorities were notified by Respondent of the mold issue, the door and mold was removed. Respondent has not worked in that classroom in more than three years. Respondent admitted that some of his absences during the 2012-2013 and 2013-2014 school years were not related to sinus problems. For example, Respondent missed work when he stayed up late with a new puppy. Respondent also missed work to get massage therapy on several occasions. Several of Respondent’s absences were attributed to stomach issues. None of Respondent’s doctors identified any need for Respondent to be extensively absent from work due to any medical condition, other than his recommended sinus surgery which occurred in early 2013 and was covered by FMLA. No evidence was introduced at the hearing that any of Respondent’s doctors actually determined that anything either at PSLHS or within Respondent’s classroom caused Respondent’s excessive absenteeism, or that Respondent could not work at PSLHS due any medical reason. To the contrary, during the 2012-2013 school year, Respondent provided 30 doctor’s notes returning him to work with no restrictions. During the 2013-2014 school year, Respondent provided four doctor’s notes returning him to work with no restrictions. Respondent admitted he was allergic to various grasses and trees common to Florida, and even admitted he was allergic to the grass in his own yard. When Respondent was asked if anything changed in his home environment between the 2011-2012 and 2012- 2013 school years where his absences skyrocketed, he testified that he had just gotten a puppy. During the relevant time period, approximately 70 percent of Respondent’s absences occurred on days when the proceeding day was not a school day, which suggests it was unlikely that Respondent’s absences were due to the environment at his work site. Although Respondent claimed his school environment exacerbated his allergies, his absences at issue are full-day absences where he called in sick for the entire day rather than leaving work during the workday. At no time did Respondent or his healthcare providers suggest that PSLHS or Respondent’s classroom should have air quality testing. Respondent admitted, on the days he was absent, he felt worse when he woke up at home than when he was at work in his classroom and when he was too sick to come to work he would wake up “hacking.” Further, while on administrative leave without pay, Respondent showed up to PSLHS in January 2014 to oversee a wrestling tournament that he previously helped organize. It is illogical that Respondent would voluntarily return to the very place which he now suggests made him so sick that he needed to continuously take days off without available leave or sick time. No credible evidence was presented to suggest that Respondent’s chronic absenteeism was as a result of the District’s failure “to provide a suitable working environment,” as alleged by Respondent.1/ Use of Administrative Leave Rather Than Discipline The Board asserts that Respondent’s chronic pattern of absences during the 2012-2013 school year and the first few months of the 2013-2014 school year resulted in “just cause” for termination. However, in lieu of termination, Ranew proposed, and the Board accepted, her recommendation for administrative leave without pay. Ranew credibly testified that she believed this would give Respondent the opportunity to take care of any problems that were causing his absenteeism and allow him to successfully return to the classroom in the 2014-2015 school year. There is no provision under any statute, rule, or policy specifically providing the Board with the authority to place an employee on administrative leave without pay instead of a suspension without pay or termination.2/ Because of this, Respondent argues that he was deprived of due process by the Board and that the Board’s action constitutes the improper use of an unpromulgated rule. A “rule” is defined in the Administrative Procedure Act (APA) as an: agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of rule. § 120.52(16), Fla. Stat. No evidence was presented regarding any alleged Board “statement of general applicability” regarding the use of administrative leave without pay as a substitute for disciplinary action. Further, it is clear from the record that Respondent received all the process to which he was entitled--notice and an opportunity to be heard prior to the implementation of the leave without pay. Respondent was provided a letter by hand delivery on October 24, 2013, from Yost in which he was advised that he was being placed on temporary duty assignment until the next Board meeting and that she intended to recommend he be placed on administrative leave without pay through the remainder of the school year due to his excessive absenteeism. He was notified that he had exhausted all paid leave yet continued to be absent. It was also noted that Respondent’s physician indicated he could perform as a teacher but may have a hearing loss when middle ear fluid is present. Notably, his physician’s letter accounted for four of his absences in August and two of his absences in September 2013, but did not address the other eight absences which he incurred during September and October 2013. This letter advised Respondent that if he had any information to provide regarding why this action should not be taken, he could do so in a meeting or in writing. Accordingly, Respondent had notice and an opportunity to be heard prior to the implementation of the leave without pay. Additionally, the Statement of Charges issued on December 19, 2013, and the formal administrative hearing before DOAH constituted notice and an evidentiary hearing-–the post adverse employment action due process to which Respondent was entitled. The undersigned has no doubt about the sincerity of the Board’s desire to see Respondent take time to address whatever was resulting in his absences and return to work successfully. However, to call Respondent’s “administrative leave without pay” a non-disciplinary action is an exercise in form over substance. While on leave, Respondent was not receiving his normal wages for teaching. He was not allowed to return to the school to teach for the balance of the school year.3/ Understandably, Respondent does not perceive his leave as beneficent. For all intents and purposes it is, in fact, a “suspension” without pay which, pursuant to the Board’s policies, applicable rules, and statutes, can only be imposed for “just cause.”4/ Determinations of Ultimate Fact The greater weight of the evidence establishes that Respondent engaged in a pattern of excessive and chronic unexcused absenteeism during the 2012-2013 and 2013-2014 school years, despite the District’s repeated reminders regarding the disruption caused by Respondent’s absences and its multiple attempts to accommodate any medical condition that might have been causing the absences.5/ This pattern resulted in a variety of terminable offenses as described in Board Policy 6.301(3)(b). It is determined, as a matter of ultimate fact, that Respondent is guilty of incompetency, as defined by rule 6A- 5.056(3)(a)5. by virtue of his excessive absenteeism--a pattern which was not resolved after FMLA leave, 21 additional days of leave without pay during the 2012-2013 school year, and which continued into the new school year of 2013-2014. It is determined, as a matter of ultimate fact, that Respondent is guilty of gross insubordination by virtue of his failure to perform his required duties, excessive absenteeism despite having no paid leave available, and failing to return to work on a consistent and regular basis after repeated and extensive counseling by the District regarding the consequences of his actions. It is determined, as a matter of ultimate fact, that Respondent engaged in willful neglect of duty by failing to regularly report to work or to properly request time off from work or make arrangements to have lesson plans available for substitute teachers. It is determined, as a matter of ultimate fact, that Respondent engaged in misconduct in office by virtue of his violation of School Board policies and disrupting his students’ learning environment by his chronic absenteeism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, St. Lucie County School Board, enter a final order upholding Respondent’s suspension without pay from November 20, 2013, through the end of the 2013- 2014 school year; denying back pay for the full period of his suspension; and reinstating Respondent’s employment as a teacher at the start of the 2014-2015 school year. DONE AND ENTERED this 12th day of June, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2014.
The Issue The issue is whether just cause exists for Petitioner, Polk County School Board (School Board), to terminate Respondent's employment as a classroom teacher.
Findings Of Fact The School Board is charged with the duty to operate, control, and supervise public schools in Polk County. This includes the power to discipline classroom teachers. See §§ 1012.22(1)(f) and 1012.33, Fla. Stat. (2018). The record does not disclose whether Respondent holds a professional service contract or has an annual contract with the School Board. In any event, he has been employed with the School Board as a classroom teacher since September 2016. Before moving to Florida in 2016, Respondent taught motion picture television arts in Ohio for four and one-half years. Before that, he worked in the motion picture industry for 27 years. From September 2016 until he was suspended in January 2018, Respondent taught Television (TV) Production at Haines City High School and supervised the school's TV news program. In the program, students film events on campus before and after school, learn how to edit the film, and then prepare videos for school use. Mr. Lane is the school principal. Based on an allegation that he was observed sleeping in class on November 29, 2017, coupled with a three-day suspension, without pay, that he served a month earlier, the School Board seeks to terminate Respondent's employment. Specifically, the termination letter alleges that on November 29, 2017, Respondent "was found sleeping at [his] classroom desk," "students [were] unsupervised and scattered about [the] classroom," and this conduct constitutes "serious misconduct." Sch. Bd. Ex. 4. To terminate Respondent, the School Board relies upon the fourth step in the four-step progressive discipline process found in the Teacher Collective Bargaining Agreement (CBA), which governs the employment of instructional personnel. Article 4-4.1 provides that, "except in cases where the course of conduct or the severity of the offense justifies otherwise," a teacher may be terminated only after progressive discipline has been administered in Steps I, II, and III. Sch. Bd. Ex. 8. On October 24, 2017, Respondent received a three-day suspension without pay for making inappropriate comments during a discussion with students in his class. Due to the serious nature of the incident, the School Board accepted the principal's recommendation that it bypass the first two steps of progressive discipline and invoke discipline under Step III. Respondent did not contest or grieve that action. Therefore, Respondent has not been given progressive discipline under Step I (a verbal warning in a conference with the teacher) or Step II (a dated written reprimand following a conference). In the fall of school year 2017-2018, Respondent taught TV Production-Editing during fourth period. The TV Production area encompassed a large suite of rooms, including a main classroom, a TV news room, a control room, and two hallways with lockers for equipment. Typically, there were between 25 and 30 students in the class. Respondent wears contact lenses, but because of chronically dry eyes, he must use artificial tears four to eight times per day in order to avoid swelling of the eyelids. To properly hydrate his eyes, after using the artificial tears, Respondent tilts his head back, closes his eyes, and rolls his eyes for a few minutes to allow the eyes to absorb the solution. Midway through his fourth-period class on November 29, 2017, Ms. Young, the assistant principal, entered Respondent's classroom to do an unannounced walk-through. She observed the lights off and Respondent sitting at his desk with his eyes closed and "leaned back" in his chair with his mouth open. Ms. Young assumed he was asleep so she cleared her throat, then waved her hand, and finally knocked on his desk twice, but he did not open his eyes. She then knocked louder on the desk and called his name. This appeared to startle Respondent and he sat up and looked around the class. After she informed him that she was performing a walk-through in his class, Respondent replied "okay," and said he was aware she was there. Ms. Young was in Mr. Smith's classroom area approximately five minutes. After getting his attention, she walked through the entire suite of rooms and observed "some" students on their phones, "some" on the computer, and "some" walking in the back of the room. Even though Mr. Smith testified at hearing that his students were "absolutely malicious" and "they'll do anything," Ms. Young did not report seeing any unusual or unsafe conditions that might result in placing any student's safety in jeopardy. Mr. Smith denies that he was asleep. He testified that just before the assistant principal did her walk-through, he had put drops in his eyes, cocked his head back, closed his eyes, and was in the process of rolling his eyes to rehydrate them. A few minutes earlier, he had given permission for a student to use the restroom. When Ms. Young entered the classroom, he knew someone had entered the room but assumed it was the student returning from the restroom. When he opened his eyes, he greeted Ms. Young, who replied that she was "walking through [his] classroom." According to Ms. Young, it was "very evident" that he was asleep, "100 percent," and it was not possible that he just had his eyes closed. Ms. Young's testimony concerning her observations is the most persuasive and has been credited. The incident was reported to Mr. Lane the same day. After the incident was reported to Mr. Lane, he recommended that Respondent be terminated for serious misconduct. Sch. Bd. Ex. 4. Mr. Lane explained that this action was justified because of concerns over the "safety of the children" in Respondent's class, given the large suite of rooms under his supervision. He also testified that the incident brought into question Respondent's effectiveness as a teacher. The School Board's attempted reliance at the hearing on a few other times when Respondent allegedly was sleeping in class has been disregarded for two reasons: they are based mainly on hearsay testimony, which does not supplement or corroborate other competent evidence; and, more importantly, they are not included as charges in the termination letter or parties' Pre-hearing Stipulation. Pilla v. Sch. Bd. of Miami-Dade Cnty., 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995) (the teacher must have fair notice and an opportunity to be heard on each of the charges brought against him). On December 13, 2017, the School Board's human resource services department informed Respondent by letter that he was suspended, with pay, pursuant to Article 4-4.1 of the CBA pending the School Board's consideration of a recommendation that he be terminated, effective January 24, 2018. Sch. Bd. Ex. 5. According to the termination letter, the School Board determined that Respondent's actions "constitute serious misconduct" for which "just cause" for termination exists, and "[t]ermination constitutes Step IV of Progressive Discipline as outlined in Article 4-4.1 of the [CBA]." Sch. Bd. Ex. 5.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Polk County School Board enter a final order issuing a verbal warning (Step I) or a dated written reprimand (Step II) to Respondent for being observed sleeping in class on November 29, 2017. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 6th day of March, 2019.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Ms. Williams has been employed by the School Board for 15 years and is currently a 12-month custodian at Longwood Elementary School (School), located in Seminole County, Florida. As a 12-month custodian, Ms. Williams is allowed sick and annual leave. Ms. Williams requested leave beginning July 7, 2010, to September 29, 2010, for back surgery. On August 10, 2010, the School received a letter dated July 8, 2010, from Ms. Williams's physician, advising that Ms. Williams had undergone surgery for a spinal disorder on July 7, 2010, and would need 12 weeks to recover prior to returning to work. On October 1, 2010, Ms. Williams called the School and advised that she was not able to return to work and requested leave from September 30, 2010, through October 28, 2010. Her physician sent a letter dated September 30, 2010, to the School, advising that Ms. Williams would need an additional four weeks for recovery. By this time, Ms. Williams had exhausted all her paid leave and was on leave without pay. Ms. Williams was unable to come to the School to sign the application for leave; however, the leave was approved by the principal of the School, Virginia Fisher (Ms. Fisher), who was Ms. Williams's direct supervisor. By November 2, 2010, Ms. Williams was still unable to return to work, and her physician sent another letter to the School, advising that Ms. Williams would need an additional four weeks for recovery. Ms. Williams requested leave from November 2, 2010, to November 30, 2010. Again, Ms. Williams was unable to come to the School to sign the application for leave, but it was approved by Ms. Fisher. By December 1, 2010, Ms. Williams was still unable to return to work and requested leave from December 1, 2010, through January 3, 2011. Her physician sent a letter to the School, stating that Ms. Williams needed an additional four weeks for recovery. Ms. Williams was unable to come to the School to sign the application, and the leave request was approved by Ms. Fisher. Ms. Williams's physician sent a letter dated December 27, 2010, to the School, stating that Ms. Williams had not quite reached maximum medical improvement with respect to her recovery and that he would need to see her in four weeks for reevaluation. Ms. Williams signed and submitted an application for leave for January 4, 2011, through January 24, 2011. The leave was approved. Ms. Williams's physician submitted a Return to Work/School Certificate dated January 21, 2011, to the School, stating that Ms. Williams would be able to return to work on January 24, 2011, with the following restrictions: "light duty with no repetitive lifting over her head, lifting restriction of = 30 lbs." Ms. Williams discussed the issue of light duty with Steve Bouzianis (Mr. Bouzianis), director of Human Resources, Staffing and Operations for the School Board. She told him that she had been advised by staff at the School that she needed to come back to work or submit a request for additional leave. Mr. Bouzianis informed her that she could not do the custodial job with the restrictions set by her physician. Ms. Williams was advised to submit a request for leave and was told that it would be approved. By February 18, 2011, Ms. Williams had not submitted a request for leave or submitted a letter from her physician stating that she needed to be absent from work due to an illness. By letter dated February 18, 2011, Ms. Fisher enclosed a leave request form and directed Ms. Williams to complete the form and return it to her, along with a physician's statement substantiating Ms. Williams's need for her absences no later than February 23, 2011. Ms. Fisher further advised that, if Ms. Williams could not obtain a physician's statement, Ms. Fisher would approve the leave for the remainder of the year as personal leave without pay. Ms. Fisher advised in the letter of the consequences for failure to request leave and stated: Should you fail to return to me your signed request for leave form and the supporting physician's statement (if applicable) by the date identified above [February 23, 2011], you will be considered as absent from duty without approved leave, and in violation of adopted School Board policy. In that event, the Superintendent of Schools will recommend to the School Board that you be suspended from your duties and further that your employment with the School Board of Seminole County, Florida[,] be terminated. The School received a letter dated February 22, 2011, from Ms. Williams's physician, who stated that Ms. Williams could return to work on January 24, 2011, with the same restrictions previously listed on the Return to Work/School Certificate. On February 23, 2011, Cynthia Frye (Ms. Frye), who is Ms. Fisher's assistant, attempted to call Ms. Williams at her sister's telephone number, which is the number that Ms. Williams had given the School to contact in case of an emergency. At the time, Ms. Williams was living with her sister and staying some of the time with her son. Ms. Frye called at 2:37 p.m., and got no answer, and called again at 3:15 p.m., at which time she spoke to Ms. Williams's sister. Ms. Frye told the sister that it was important that Ms. Williams call Ms. Frye. Ms. Williams had not called Ms. Frye by the morning of February 24, 2011. Ms. Frye attempted to call Ms. Williams twice during the morning of February 24, 2011, and three times during the afternoon. On the last call, she left a message with Ms. Williams's sister that it was imperative that Ms. Williams call Ms. Frye that night or Ms. Frye could not help Ms. Williams. By March 4, 2011, the School still had not heard from Ms. Williams. Ms. Fisher sent Ms. Williams a letter dated March 4, 2011, stating that, because Ms. Williams had not contacted the School to request leave, Ms. Williams's absences since January 25, 2011, were considered as absences from duty without approved leave. Ms. Fisher advised Ms. Williams that, based on Ms. Williams's third and continuing absences, Ms. Fisher would recommend to the superintendent of schools that Ms. Williams's employment with the Seminole County Public Schools be terminated. When questioned at the final hearing concerning her reasoning for not requesting leave, Ms. Williams indicated that she wanted to work, but the School would not let her come back to work with light duty restrictions. She contacted her attorney and, based on his advice, did not request leave. Ms. Williams's employment is governed by the Official Agreement between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc., and the School Board (Agreement). Article VII of the Agreement provides: Section 4. * * * B. A regular employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. * * * Section 5. A. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following provided that just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employees leaves the work site after the equipment, if applicable, has been checked in Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools, or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. * * * Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. * * * Section 15. Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension without pay. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommendation for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Ms. Williams's employment with the School Board. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
