The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee, where Respondent has confessed to a felony shoplifting charge as part of a deferred prosecution agreement pursuant to which criminal charges will be dismissed if Respondent satisfactorily complies with the agreement.
Findings Of Fact The evidence presented at final hearing established the facts that follow. At all times material, Respondent Cassandre Lawrence (“Lawrence”) was employed in the Palm Beach County School District (the “District”) as a paraprofessional (teacher’s aide), a position which she had held for approximately six years before the events that gave rise to the instant proceeding.1 Lawrence was working at Northmore Elementary School during the 2000-01 school year. On December 26, 2000, Lawrence and a female companion were arrested at the Boynton Beach Mall on shoplifting charges. Lawrence was charged with grand retail theft, which is a third degree felony. Pursuant to Board Rule 6Gx50-3.13,2 all District employees must report any arrests, convictions, “commitment[s] to a pretrial diversion program,” or pleas of any kind within 48 hours after the reportable event.3 At the time of Lawrence’s arrest, however, the District’s schools were closed for Christmas vacation, so she did not report the incident immediately. Instead, on January 9, 2001——Lawrence’s first day back at work after the holidays——Lawrence submitted to the District’s Chief Personnel Officer a written disclosure of her arrest, which stated: On December 26, 2000 I was shopping in the Boynton Beach Mall with a friend. Unknowingly, she put some items in my shopping bag. I was falsely arrested. My friend has admitted doing so [sic]. I felt that being an employee of the School Board that [sic] I should report this matter. This matter would be dissolved [sic] very soon. I have never been in any trouble or accused before. This situation has really been bothering me. After this matter has been straightened out I will be forwarding you the necessary paper work. Lawrence’s statement was provided to the District’s Office of Professional Standards on January 10, 2001. That office opened a case file on Lawrence. On March 29, 2001, Lawrence reached an agreement with the state attorney that provided for her referral to a pretrial intervention program (“PTI”). See Section 948.08, Florida Statutes (governing pretrial intervention programs). This agreement was reduced to writing on April 3, 2001, when the parties executed a contract they called the Deferred Prosecution Agreement (“Agreement”). Under the Agreement, the state attorney promised, in return for Lawrence’s agreement to abide by conditions specified in the Agreement, to defer the prosecution of Lawrence for a period of 18 months from the date of April 3, 2001. Further, the state attorney agreed that if Lawrence complied with the conditions of the Agreement, then “no criminal prosecution concerning [the shoplifting] charge [would] be instituted[.]” By signing the Agreement, Lawrence expressly waived her constitutional rights to a speedy trial. On the same day she executed the Agreement, and in consideration thereof, Lawrence signed this statement: I, Cassandre Lawrence freely and voluntarily admit that I am guilty of the allegations [of grand theft] contained in [the charging document]. (This statement will be referred to hereafter as the “Confession.”)4 Sometime shortly afterwards——the evidence does not reveal the exact date——Lawrence reported to the District that she had entered into a PTI pursuant to the Agreement. As a result, on April 19, 2001, Mr. Holeva of the District's Office of Professional Standards met with Lawrence, her attorney (who participated by telephone), and her union representative,5 to investigate the circumstances surrounding the shoplifting charge against Lawrence. In this meeting, Lawrence acknowledged that, to enter into a PTI, she had signed the Confession wherein she admitted guilt to the felony theft charge——a so-called “435 offense.”6 Following this interview, the Office of Professional Standards referred Lawrence’s case to the Case Management Review Committee (the “Committee”). The Committee is composed of a dozen senior District employees who are responsible for determining whether probable cause exists to discipline an employee suspected of having engaged in misconduct. Upon review, the Committee determined that Lawrence had violated Board Rule 6Gx50-3.13 by failing to timely report her arrest and later referral to a PTI within 48 hours after these respective events had occurred. (Yet, it should be noted, Lawrence had not concealed the material facts, nor had she attempted to mislead the District.) However, the Committee considered Lawrence’s purported failures strictly to follow the notification rule to be, collectively, a minor infraction that, without more, would have warranted at most a written reprimand. Much more important, the Committee found that Lawrence was guilty of a “435 offense.” Because the District’s settled policy and consistent practice is to terminate any employee who has committed a “435 offense,” the Committee recommended that Lawrence’s employment be terminated. The Superintendent accepted the Committee’s recommendation that Lawrence be fired. By letter dated June 29, 2001, the Superintendent notified Lawrence that he would recommend to the Board at its July 11, 2001, meeting that she be suspended without pay pending dismissal. The Board subsequently accepted the Superintendent’s recommendation. Lawrence has been suspended without pay since on or about July 11, 2001.
The Issue Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on misconduct in office, which occurred on January 12, 1989. Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on gross insubordination or willful neglect of duty for failure to follow a prior directive from his principal not to physically touch a student, except under very limited conditions. Whether such actions of Respondent are so violative of the legitimate expectations of professional conduct of a teacher as to impair the effectiveness of service to the school district by the Respondent and to pose a serious danger to the continued safety, health and welfare of the students of Orange County, Florida.
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was a licensed teacher, having taught in the Orange County School System for 21 years and at Conway Middle School for over 19 years. Respondent's classroom evaluations over the years were satisfactory and higher. Respondent was a school representative for the teachers' association for approximately 16 years. Respondent is a large man, 6 feet, 3 inches tall and weighs 300 pounds. On January 12, 1989, Respondent was teaching his regular sixth-period American History class. The bell had rung, signaling the beginning of the class period, but some students were still coming into the classroom. The Respondent was preparing to show the class a filmstrip. Peyton Dickson, a student in the class, walked from his seat in the rear of the classroom to the light switch at the front of the classroom and turned the light switch on and off several times. Respondent told him to stop and to sit down. He remained standing and "talked back" to Respondent. Dickson's conduct angered the Respondent who then walked to where Dickson was standing, grabbed him by the arms and shoved him up against the wall. Respondent called Dickson a "punk." Dickson then angrily returned to his seat. Shortly thereafter, during the same class period, Todd Ray, another student in the class, walked over to use the pencil sharpener. On the way back to his seat, he stopped to help another student with a bookcover. The Respondent grabbed Ray, walked him a short distance back to the student's desk and pushed him down into his seat. The class continued without further interruption. The Respondent did not contact the school office concerning the incidents at the time that they occurred. After class was over, several students, including Peyton Dickson and Todd Ray, approached the school principal, Beth Provancha, in the hall and told her about the actions of the Respondent. Later that same day, the principal, through Mr. Nelms, directed the Respondent to prepare a written account of what had occurred in the classroom. The Respondent submitted his written version of the facts the next day, January 13, 1989. (School Board Exhibit 14). On January 29, 1989, the Respondent received a letter relieving him of duty effective January 30, 1989, because of "serious" allegations of misconduct. In the case of a student who disrupts a classroom, School Board policy directs that a student should be verbally directed by the teacher to cease disruptions. If that does not resolve the situation, the office should be "buzzed" and an administrative person summoned to remove the disruptive student from the classroom. It is not permissible for a teacher to physically abuse a student except in the case of an emergency, and no emergency existed in Respondent's classroom on January 12, 1989. Respondent had been directed by the principal, personally, as well as in the Faculty Handbook, not to physically touch students, except for friendly gestures or in emergencies. At the time of the January 1989 incidents, the Respondent knew he had been directed not to "touch" students. In spite of this knowledge, the Respondent deliberately grabbed and shoved or "touched" the two students who had been disruptive in class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Orange County find Respondent guilty of misconduct in office, and not guilty of gross insubordination. It is FURTHER RECOMMENDED that Respondent be suspended, without pay, from the date of the incident January 12, 1989, until the end of the School Year 1988-89; and the Respondent receive counseling in stress management prior to returning to the classroom. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted: Paragraphs 1,2,3,4 (in part), 5,6,7,8,9,10,11,12,13,14 (in part). Rejected: Paragraph 13 and a portion of 14 - not relevant. Respondent's Proposed Findings of Fact: In view of the fact that Respondent's proposals are not numbered, they will be referred to by page and paragraph number as they appear in the proposed finding starting on page 3 thereof. Accepted in substance: second full paragraph on page 3 Rejected as argument: first full paragraph on page 3 third full paragraph on page 5 second full paragraph on page 6 Rejected as not supported by the evidence: third full paragraph on page 3 (continuing on page 4) first full paragraph on page 4 (except the phrase: ... "and was aware of the previous reprimands at the time the Respondent sought to control the two students' actions.) second full paragraph on page 5 Rejected as a conclusion of law which is ruled on in the Preliminary Statement or Conclusions of Law section of this Recommended Order: second full paragraph on page 4 first full paragraph on page 5 fourth full paragraph on page 5 first full paragraph on page 6 fifth full paragraph on page 5 (concluding on page 6) APPENDIX The following constitute rulings on the findings of fact proposed by the parties. Petitioner's Findings of Fact Adopted in paragraph 1. Adopted in paragraphs 10 and 12. Adopted in part in paragraph 9, although the identification of the Respondent at the party is discredited as improbable. Rejected as unsubstantiated by the weight of evidence. Even if the smell had been marijuana smoke, it was not established that the odor existed prior to Respondent's departure the evening of the 18th, or that he could identify the odor as marijuana. Rejected as contrary to the evidence. Adopted in paragraph 18. Adopted in substance in paragraph 15. Rejected as contrary to the weight of evidence. & J. Rejected. The testimony of these witnesses was essentially credible. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence. Rejected as immaterial. The conduct was not proven. Respondent's Findings of Fact Respondent's 18 numbered Findings of Fact include multiple sub- parts containing findings mixed with argument and summary of evidence. The findings of fact are generally adopted and are incorporated herein. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire William E. Curphey, Esquire Parker, Johnson, Owen, McGuire, Michaud, Lang and Kruppenbacher, P.A. Post Office Box 640 Orlando, Florida Michael Barber, Esquire Post Office Box 1928 Kissimmee, Florida James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 N. Tampa Avenue Orlando, FL 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, FL 32399-0400
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Respondent, Jim J. Smith, was at all times material hereto, employed by the School Board as a teacher (under a professional service contract), and assigned to Charles R. Drew Elementary School (Drew Elementary). On or about September, 1997, an informant heard on the street that Respondent wanted to hire someone to kill his former wife. As a consequence, a Florida Department of Law Enforcement (FDLE) agent was assigned (on September 15, 1997) to operate undercover and to meet with Respondent regarding his proposal. On September 16, 1997, the undercover FDLE agent was introduced to Respondent, and during the course of that meeting, Respondent told the agent that "he had a brother that had got into some trouble and there was a [female] witness . . . [that] he wanted taken care of so she couldn't testify against him." (Transcript, page 39). Following that explanation, the meeting was discontinued (for reasons not apparent from the record), and another meeting was scheduled for the following day. As arranged, the undercover agent met with the Respondent the next day and, at Respondent's direction, followed the Respondent by car to a residence located at 1149 Northeast 210th Terrace, Miami, Florida. There, Respondent identified the residence as that of the "witness" he wanted "taken care of"; however, it was actually the residence of his former wife and their two daughters. Respondent also advised the agent that the "witness" would be home alone that day between 5:00 and 6:00 p.m., when he wanted the job done. At the time, Respondent knew his former wife would be alone that afternoon because he was scheduled to have visitation with his daughters. After Respondent identified the residence, the parties drove to a K-Mart parking lot where Respondent exited his vehicle and met with the agent in his car. At that time the agent related the following conversation ensued: . . . at that time I asked him, "So, what do you want done? He says, "I just want her taken care of." I said, "Well, what does that mean? What do you want, because there are different payments for different things. If you want me -- if you want me to kill her, cut her up, take her out to the ocean, that's going to be X amount of dollars. Whatever you need to do, tell me." "I want her messed up, I just want her messed up so she can't talk, whatever you take that as doing, I just need her messed up." 4 I said, well, fine, that it will be $1500 before that, and then it will be $1500 afterwards, which is a total of -- would be a total of $3,000. (Transcript, pages 41 and 42). Notwithstanding Respondent's insistence that the job be done that day, there was no apparent exchange of money and no proof of record that anything further transpired following their conversation. Based on such incident, Respondent was arrested on October 1, 1997, for solicitation to commit aggravated battery. Those charges were, however, dismissed in early March 1998, based on the State's perceived failure to comply with the "Speedy Trial" rule. The propriety of that dismissal is currently pending on appeal. On or about March 20, 1998, following dismissal of the charges, the School Board inexplicably returned Respondent to his duties at Drew Elementary. That reinstatement was met by an "outcry from the community"; however, the School Board allowed Respondent to resume his duties. Apart from soliciting someone to harm or, as the undercover agent understood it, to kill his former wife, Respondent had also engaged in a pattern of harassment toward his former wife since on or about April 1, 1996. That harassment abated during the pendency of the criminal charge, and escalated following dismissal of the charge.5 In response, Respondent's former wife secured an injunction against domestic violence which prohibited Respondent from contacting her or their daughters. Notwithstanding, the harassment continued. On October 1, 1998, Respondent was arrested and charged with burglary with assault therein, aggravated stalking, and violation of the injunction against domestic violence. Thereafter, Respondent was apparently erroneously released on bond; however, on or about October 6, 1998, he was taken back into custody, where he remained as of the date of hearing. On April 12, 1999, as his trial was about to commence, Respondent expressed his desire to enter a plea. At the time, Respondent pled guilty to all charges, and was sentenced to two years of community control (house arrest), followed by ten years of probation. As a special condition of the two-year term of community control, Respondent was ordered to serve a term of 364 days in the Dade County Jail without credit for time served; however, the jail term would be mitigated to residential treatment provided Respondent found and entered into appropriate residential mental health counseling. As heretofore noted, as of the date of hearing (April 19, 1999), Respondent remained incarcerated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered which sustains Respondent's suspension without pay, and which dismisses him from employment with the School Board. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida WILLIAM J. KENDRICK 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 28th day of May, 1999.
The Issue The issue in this case is whether Respondent committed misconduct in office and violated Petitioner's policies such that just cause exists to suspend her without pay and dismiss her from employment as a teacher with Miami-Dade County Public Schools.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material, Respondent was a first grade teacher at Van E. Blanton Elementary School ("Blanton"), an elementary school within the Miami-Dade County Public Schools. Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background of this Proceeding This matter had its genesis in November 2011, when Tangela Goa, the principal at Blanton, was contacted by D.M., the mother of S.K., who was a student in Respondent's first grade class. D.M. told Ms. Goa that S.K. did not want to go school because Respondent hit her and other students in the class. The school police investigated the complaint. The investigation resulted in allegations that Respondent hit students in her class with a stick, disciplined students by putting them in the bathroom with the door closed and lights off, and called students "stupid" and "dumb." As a result of the investigation, on February 15, 2012, Petitioner suspended Respondent without pay and took action to dismiss her from her employment with Miami-Dade County Public Schools. The Notice of Specific Charges alleges four grounds for Respondent's suspension and dismissal: misconduct in office; violation of School Board Policy 3210 – Standards of Ethical Conduct; violation of School Board Policy 3210.01 – Code of Ethics; and violation of School Board Policy 5630 – Corporal Punishment and Use of Reasonable Force. Alleged Incidents Giving Rise to Charges S.K., J.F., and P.H. are students who were assigned to Respondent's first grade class for the 2011-2012 school year.1/ At the time, they were six and seven years old. S.K., J.F., and P.H. each testified that Respondent hit students in her class with a green stick.2/ There were some differences in the students' testimony regarding details, such as whether Respondent tapped students or struck them hard with the stick, whether Respondent struck them on the head or other parts of their body, and how many and which students were struck.3/ S.K., J.F., and P.H. also testified that Respondent put students in the bathroom with the door closed and lights off for misbehaving or not doing their work, and for wetting their pants. Again, there was some difference in testimony regarding certain details, such as whether the restroom door locked from the inside or the outside. J.F. testified that Respondent called students in her class "stupid" when they got answers incorrect, while S.K. testified that Respondent told the students to "stop acting" stupid or dumb. P.H. testified that Respondent once used a curse word but did not call students "stupid" or "dumb." Principal Goa testified that the behavior in which Respondent is alleged to have engaged is not conducive to learning and that there are alternative strategies that may be employed, as appropriate, to manage student behavior. Ms. Goa testified that, assuming the allegations were shown to be true, her confidence in Respondent's judgment in managing her classroom has been significantly undermined. D.M. testified that she did not want S.K. attending school in an environment where she was afraid of being called names and hit. Respondent's Defenses Respondent denies that she struck students in her class with the green stick. She testified that she used the stick to point to words on the whiteboard. She testified that early in the school year, she used the stick to tap students as she called on them because she did not yet know all of their names. Respondent also denies that she disciplined students by locking them in the bathroom with the lights off and door closed. She testified that she would put them in the bathroom when they soiled themselves or wet their pants, to await receiving clean clothing. She further testified that the bathroom door locked from the inside, rather than the outside, so that she could not lock anyone in the bathroom. Respondent denies that she called students in her classroom "stupid" or "dumb." She acknowledges that when they would misbehave in class, she would tell them to "stop acting" stupid or "stop acting" dumb. Findings of Ultimate Fact Having fully considered all of the evidence in the record, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent struck students in her class with a stick and placed them in the bathroom with the lights off and door closed to discipline them. Petitioner did not prove, by a preponderance of the evidence, that Respondent called students "stupid" or "dumb." Although there were some differences in the students' testimony, they consistently testified that Respondent struck students in her class with a stick. The differences in testimony regarding certain details likely reflect the students' individual experiences and perceptions of the incidents, rather than being inconsistencies that call their credibility into question. Moreover, given the students' young ages and that the matters about which they testified took place over a year ago, it is reasonable to expect some differences regarding minor details. On balance, it is determined that the evidence Petitioner presented on this issue was more credible and persuasive than that presented by Respondent. The students also consistently testified that Respondent put students in the restroom with the door closed and lights out as a disciplinary measure. Respondent testified that she would put students in the bathroom when they soiled themselves or wet their pants, and S.K.'s testimony corroborated that explanation; however, this is not inconsistent with the testimony that Respondent also placed students in the bathroom with the lights out and door closed for other things such as misbehaving, crying, or not doing their work. Petitioner presented more credible and persuasive evidence on this issue than did Respondent. The students' testimony on the issue of whether Respondent called students "stupid" and "dumb" was not consistent; as noted above, the three students who testified each gave substantially different and contradictory accounts. Petitioner did not establish, by the greater weight of the evidence, that Respondent verbally abused students by calling them "stupid" or "dumb" as charged in the Notice of Specific Charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order upholding the suspension without pay of Respondent, Claudia Hye, and dismissing her from her employment as a teacher with Miami-Dade County Public Schools. DONE AND ENTERED this 13th day of December, 2012, 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 13th day of December, 2012.
The Issue The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on his race, contrary to Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is an employer as defined in Section 760.027, Florida Statutes (2005). Prior to July 1, 2005, Respondent operated the following rehabilitation programs: (a) Tallahassee-Leon County Human Services (TLC) serving outpatient adults in downtown Tallahassee, Florida; (b) a residential program for women and their children known as Sisters in Sobriety (SIS), which is located on Respondent's campus in Woodville, Florida; (c) a foster care program for teenage girls that Respondent houses in the St. Mark's Cottage, which is located on Respondent's campus in Woodville, Florida; (d) a foster care program for teenage boys that Respondent houses in the St. Mark's Lodge, which is located on Respondent's campus in Woodville, Florida; and (e) residential rehabilitation programs, which were located on Respondent's campus in Greenville, Florida. Sometime in July 2005, Respondent sold its Greenville Campus to another corporation. Petitioner is an African-American male. At all times relevant here, Petitioner worked full-time as the Director of Operations at Respondent's Woodville Campus. On August 19, 2002, Petitioner acknowledged receipt of Respondent's Equal Employment Opportunity/Anti-harassment Policy Statement, which states as follows in relevant part: Any employee who believes that she/her has been harassed or discriminated against in violation of this policy should report the problem immediately to the Director of Human Resources. Respondent's Human Resources Policies and Procedures manual states as follows in relevant part: Statement of Affirmative Action It is the policy of DISC Village, Inc., to provide equal opportunity for employment, training, promotion, compensation and all conditions of employment for individuals without regard to race, color, religion, sex, national origin, age except as provided by law, prior history of emotional, mental, drug or alcohol disability or physical disability. DISC Village will maintain a specific program to maintain and promote non-discrimination in accordance with the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990. Any perceived act of discrimination should be reported to the site director and the Human Resources Director . . . immediately. Anti-Harassment Policy DISC Village, Inc. is committed to maintaining a work environment that is free of unlawful harassment and will not tolerate any form of harassment or unlawful discrimination against our employees by anyone. Employees must report any form of harassment, especially sexual, to their direct supervisor and the Human Resources Director . . . as soon as possible. Upon hire, all new employees will receive a copy of the agency Anti-Harassment Policy & Procedure with signoff. At all times relevant here, Qua' Keita Anderson, an African-American female, was a counselor at Respondent's Woodville Campus. Ms. Qua' Keita Anderson worked in the SIS program. Ms. Qua' Keita Anderson's direct supervisor was Joni Morris-Anderson, Respondent's Director of Women's Residential Services on the Woodville Campus. At all times relevant here, Lisa Bergeron worked for Respondent as Program Supervisor of DISC Adolescent Treatment Center on the Woodville Campus. Prior to July 1, 2005, Harry Rohr, a white male, was the Director of Residential Services at Respondent's Greenville Campus and Woodville Campus. Mr. Rohr was Petitioner's direct supervisor, even though Mr. Rohr spent most of his time at the Greenville Campus prior to July 2005. Petitioner was in charge of the Woodville Campus when Mr. Rohr was not available. After July 1, 2005, Mr. Rohr spent most of his time at Respondent's Woodville Campus. Mr. Rohr made this change because Respondent no longer operated programs on the Greenville Campus. The sale of the Greenville Campus did not cause a change in title or job responsibilities for Petitioner or Mr. Rohr. At all times relevant here, Tom Olk, a white male, was Respondent's Chief Executive Officer. Mr. Olk's office is located in Respondent's administrative facility in Tallahassee, Florida. However, Mr. Olk frequently makes on-site visits to Respondent's Woodville Campus. At all times material here, Lou Logan was Respondent's Deputy Director and head of Respondent's Human Resource Department. Mr. Logan is a white male. Mr. Logan's office is located in Respondent's administrative facility in Tallahassee, Florida. In March 2004, Respondent was in the process of opening the foster care program on the Woodville Campus. Several staff members, including Petitioner, participated in refurbishing an old home as a residence for the foster children. Respondent's staff was hanging curtains when Mr. Logan paid an impromptu visit to the old home. The curtains were printed with African animals, including monkeys. When Mr. Logan stated how nice the curtains looked, a staff member made some comment about the monkeys in the curtains. Another staff member commented about Petitioner having a big role in the decorating project. Mr. Logan then stated, "Oh, Lester is always monkeying around." Mr. Logan made the statement in the spirit of the moment to show how happy he was that the staff was doing such a good job. Petitioner complained to Mr. Olk that Mr. Logan had called him a monkey. Mr. Olk discussed the incident with Mr. Logan and Petitioner, concluding that Mr. Logan had not called Petitioner a monkey. Mr. Olk properly determined that Mr. Logan never intended to make a racially derogatory comment about Petitioner and that Petitioner had taken Mr. Logan's statement out of context. In early June 2005, Petitioner called Ms. Qua' Keita Anderson at home on her day off to discuss some performance issues she was having at work. The conversation took an inappropriate turn when Petitioner asked Ms. Qua' Keita Anderson if she had a "sexual stress reliever." On August 3, 2005, Petitioner picked up a female teenage resident of St. Mark's Cottage from Respondent's offices in Tallahassee, Florida. Petitioner transported the female youth, alone and unsupervised, in his personal vehicle to look for a job. In so doing, Petitioner violated Respondent's policy relative to the transportation of residents and/or patients of the opposite gender. On August 3, 2005, Harry Rohr and Lisa Bergeron observed the same young female client leaning over Petitioner's shoulder at his computer desk in very close proximity to Petitioner's body. Petitioner did not maintain appropriate physical boundaries with the young girl. On August 3, 2005, Mr. Rohr spoke to Petitioner about his violation of the transportation rules and his failure to maintain appropriate physical boundaries with the female client. Mr. Rohr then wrote a memorandum to memorialize the conversation. In the memorandum, Mr. Rohr advised Petitioner to refrain from being alone with any of the teenagers and to concentrate his efforts on the boys of St. Mark's Lodge. Shortly thereafter, Respondent approved Ms. Qua' Keita Anderson's request for a transfer from the Woodville Campus to the TLC Campus. Ms. Qua' Keita Anderson wanted to work in downtown Tallahassee, Florida, because she was beginning graduate school and needed a smaller, less stressful caseload. On one occasion, Petitioner and Ms. Qua' Keita Anderson had lunch together at a picnic table on the Woodville Campus. On another occasion, Petitioner ordered take-out meals for Ms. Qua' Keita Anderson and himself. Ms. Qua' Keita Anderson paid Petitioner for her meal when she picked it up in Petitioner's office. There is no persuasive evidence that Petitioner ever paid for Ms. Qua' Keita Anderson's lunch, on or off the Woodville Campus. Upon realizing that Ms. Qua' Keita Anderson's last day at the Woodville Campus was approaching, Petitioner telephoned her at home. During the conversation, Petitioner told Ms. Qua' Keita Anderson that she "owed him something" before she transferred. Ms. Qua' Keita Anderson replied that she did not owe Petitioner anything. Petitioner then asked Ms. Qua' Keita Anderson to have lunch with him before her last day at work on the Woodville Campus. Ms. Qua' Keita Anderson did not agree to have lunch with Petitioner. Petitioner telephoned Ms. Qua' Keita Anderson one additional time at work. During the call, Petitioner again asked when Ms. Qua' Keita Anderson was going to have lunch with him. Ms. Qua' Keita Anderson advised Petitioner that she was uncomfortable having a personal lunch outside of the office. Once again she refused Petitioner's invitation. On August 8, 2005, Ms. Qua' Keita Anderson complained to her supervisor, Ms. Joni Morris-Anderson. Ms. Qua' Keita Anderson and Ms. Joni Morris-Anderson are unrelated. Ms. Qua' Keita Anderson complained about Petitioner's inappropriate sexual remark, his telephone calls to her home, his insinuation that she "owed him something" before she transferred, and his insistence that she have lunch with him. Ms. Qua' Keita Anderson repeated her complaint in the presence of Ms. Bergeron, who advised Ms Morris-Anderson to report the incidents to Mr. Rohr. Ms. Qua' Keita Anderson prepared a written statement and submitted it to Mr. Rohr. The statement reflected her "concern" about Petitioner's behavior, which made her feel uncomfortable and harassed. On August 8, 2005, Mr. Olk visited the Woodville Campus. During that visit, Mr. Olk and Mr. Rohr met with Petitioner to discuss Ms. Qua' Keita Anderson's sexual harassment complaint. The meeting also included a discussion involving Petitioner's unsupervised transportation of a female resident and his failure to maintain appropriate physical boundaries with the same female resident. Mr. Olk explained to Petitioner that Ms. Qua' Keita Anderson's complaint raised serious issues, which required an investigation. Mr. Olk advised Petitioner that if he did not participate in the investigation, he could resign or be terminated. In regard to Ms. Qua' Keita Anderson's allegations, Petitioner stated that "it didn't happen that way." He did not make any other statement except to say that “he needed time to think." Mr. Olk had another scheduled meeting on the Woodville Campus. Mr. Olk asked Petitioner to read Ms. Qua' Keita Anderson's complaint and to discuss it with Mr. Olk upon his return from the other meeting. Petitioner then asked Mr. Rohr if he could have the rest of the day off. Mr. Rohr denied this request because Mr. Olk wanted to continue his discussion with Petitioner and because Mr. Rohr wanted Petitioner to begin the cross-training of Jonetta Chukes. Ms. Chukes is a white female. Prior to July 1, 2005, Ms. Chukes worked in Respondent's office in Tallahassee, Florida, as a Medicaid specialist. Until the Greenville Campus was sold, Ms. Chukes also provided some paperwork services for the programs on the Greenville Campus. Sometime in July 2005, Respondent decided to let Ms. Chukes work part-time in the administrative office in Tallahassee, Florida, and part-time too as a secretary on the Woodville Campus. Additionally, Respondent wanted Ms. Chukes to cross-train in the following areas: (a) the client intake process, formerly exclusively performed by Petitioner; (b) the billing process, formerly exclusively performed by another secretary on the Woodville Campus; and (c) the workforce application process. Cross-training is important to Respondent to ensure that its programs function smoothly when any particular person is not at work. Ms. Chukes did not immediately begin working part-time on the Woodville Campus after Respondent made the decision about her new responsibilities. Ms. Chukes happened to begin that transition on August 8, 2005. When Mr. Olk and Mr. Rohr returned from the other meeting, they intended to finish their conversation with Petitioner. However, they could not locate Petitioner. They soon learned that Petitioner had turned in his keys and employer-provided cell phone, submitted a written letter of resignation, and left the campus. Petitioner never informed anyone that he believed Mr. Rohr was discriminating against him. Mr. Olk was very disappointed that Petitioner did not stay on the premises to complete their discussion. Mr. Olk believed Petitioner was a valuable employee with potential for career advancement. Mr. Olk encouraged Petitioner to pursue his undergraduate degree, which is a requirement for upper management. Respondent reimbursed Petitioner for his tuition at Tallahassee Community College. Respondent does not normally pay for its employees to attend college. In this respect, Petitioner was treated more favorably than his Caucasian counterparts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this July day of 20th, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lester Levon Hall 3871 Gaffney Loop Tallahassee, Florida 32305 Amy Reisinger Harrison, Esquire Lindsay A. Connor, Esquire Ford and Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202
Recommendation Based on the foregoing, it is RECOMMENDED that petitioner enter a final order sustaining respondent's suspension and dismissing him from employment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of September 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1990. COPIES FURNISHED: Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Mr. Frederick Charles Metropolitan Correctional Center Flagler Unit 15801 S.W. 137th Avenue Miami, Florida 33177 Mr. Frederick Charles 35303 Southwest 180th Avenue Trailer 337 Florida City, Florida 33034 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issues to be resolved in this proceeding are as follows: Whether Respondent had an instructional employment contract that required cause for termination. Alternatively, if Respondent had a contract requiring cause for termination, whether there is cause for termination of that contract within the meaning of Section 231.36, Florida Statues, and Rule 6B-1.001 and 6B-1.006, Florida Administrative Code.
Findings Of Fact Petitioner, the Escambia County School Board (Board), is a unit of local government charged with the operation of the public school system in Escambia County, Florida, including the employment of teachers under certain contract conditions. Contracts and terms of service for regular members of the instructional staff are required to be in writing. See Section 230.23(5)(d), Florida Statutes. The Escambia County School Board also provides instructional services to juveniles under detention at the Juvenile Justice Center. Respondent was employed by the Board as a teacher during the 1994-1995 school year. During the 1994-1995 school year, Respondent was assigned to teach at the Juvenile Detention Center in Pensacola, Florida. Student S.C. met Respondent at the Pensacola Detention Center of the Juvenile Justice Center while he was an instructor at the Center. After she left the Pensacola Detention Center, she moved to North Carolina to live with her step-mother and father. While there, she wrote to Respondent; and sometime in early September she allegedly received correspondence from Respondent, including one letter dated September 5, 1995. The letter S.C. sent and the letter of September 5, 1995, do not appear to be discussing the same things. Respondent turned the letter S.C. wrote him over to his supervisor at school when he received it. Respondent denies writing or sending the letter of September 5, 1995 addressed to S.C. The September 5 letter's envelope had a return address which belonged to Respondent, and was signed "Ri" or "Rc". However, S.C. was unable to testify as to whom the letter actually came from. She did not recognize the handwriting as that of Respondent. More importantly, the Petitioner attempted to have the handwriting analyzed to determine whether the Respondent wrote the letter. The handwriting analysis determined that "the evidence falls short of that necessary to support a conclusive opinion" that Respondent wrote the September 5, 1995 letter. The Respondent also has been accused of sending other letters to people, including a threatening letter to the President of the United States, which he denied having done. All these letters came from a Rick Sapp in Pensacola but were not from the Respondent. So, too, during the pendency of these proceedings, an accusation was made that the Respondent had sent a letter to another student at the detention center. The Respondent did not send such a letter. The letter alleged to have been sent by the Respondent other than being signed "Rick" cannot be established to have been from the Respondent since it omits his phone number, address, and has a different return address and name on the envelope and was mailed from Panama City. Student S.C. ran away from North Carolina sometime in September 1995. She was subsequently detained at the Panama City Detention Center. S.C. testified that Respondent called her on the telephone, gaining access by identifying himself as a counsellor. Respondent allegedly told her that he was in love with her and wanted her to call him. Respondent allegedly gave her his telephone number. However, when she reported the call to the staff, other than transferring a "call from a counsellor," she did not say the call was from Respondent but someone sounding like Respondent. S.C. provided a telephone number to the detention worker who called it and asked to speak to Respondent. The party answering the phone said that Respondent was not there and identified himself as Respondent's roommate. S.C. testified she recognized the voice as that of Respondent which recognition is not credible. The Panama City Detention Center maintains a log of phone calls and activities occurring at the facility. The log indicates that on November 19, 1995, the controller received a call for S.C. The controller reported the caller identified himself as the counsellor for S.C. After receiving the call, student S.C. reported to the supervisor that the caller was not her counsellor, but was someone sounding like Respondent. S.C. reported Respondent had left a telephone number which in fact is one of Respondent's telephone numbers. Gene Rochelle called that number on the speaker phone asking for Respondent. The party answering the phone stated he was Respondent's roommate and that Respondent was not at home. Student S.C.'s report and the subsequent telephone call to the same number were noted in the log of the Juvenile Justice Center. S.C. also claimed to have received a letter from Respondent which she turned in to the Panama City Detention Center. The letter, although signed "Rick," has a return address showing the name "Hess" and the address, 1723 17th Avenue, Pensacola, Florida 32501 (not Respondent's) and appears to have been postmarked in Panama City, Florida. The letter also appears to have different handwriting than the September 5, 1996 letter. Although the letter asks S.C. to call or write, it omits the Respondent's telephone number or address and suggests only that a call be made to 411 in Pensacola to find it. Respondent denies calling or writing S.C. while she was at the Panama City Detention Center and was surprised that she had been there. On the whole, while it may be true that a number of letters were sent, the evidence falls short of disclosing that Respondent sent any of the letters, including the letter of September 5, 1995. The evidence regarding any of these contacts is at best inconclusive. Therefore the charges against Respondent involving S.C. should be dismissed. The District also alleges Respondent maintained an inappropriate relationship with a male student from the detention center, T.R. The original allegations were made by the older brother and lawful custodian of T.R., Michael Jarrell. Although the guardian of the student, T.R., did make an initial statement to Dr. Garber of the School Board accusing the Respondent of wrongdoing, shortly thereafter, upon learning the identity of the person earlier believed to have been the Respondent, T.R.'s guardian, Michael Jarrell, made a second statement clarifying that the person who was identified as Respondent was not the man who had been improperly interacting with his minor brother. Given these facts, the Petitioner has failed to produce any substantial evidence to demonstrate that Respondent engaged in an inappropriate relationship with T.R. Therefore the charge of misconduct as it relates to T.R. should be dismissed. Prior to the beginning of the new school year Respondent's 1994-1995 employment contract had expired. On August 14, 1995, William McArthur, Director of Human Resources for the Escambia County School District, signed, at the direction of Superintendent W. L. Maloy, an "Instructional/Administrative Appointment Request" form appointing Respondent to the position of teacher for the 1995-1996 school year. The practice of the Superintendent's office is to fill out the appointment request form on people whom the Superintendent intends to recommend for an annual contract to the Board. The form is placed in the teacher's personnel file and then the Superintendent formally recommends the employment of that person to the School Board by submitting the request form to the Board. The recommendation is required by statute to be in written form. See Section 230.23, Florida Statutes. The Superintendent of Escambia County Schools, among other things, is authorized by statute to recommend to the School Board those employees he determines should receive instructional contracts. See Section 230.33(7), Florida Statutes. The School Board, once recommendation is made by the Superintendent for employment of an instructor pursuant to contract, must act on that recommendation rejecting the Superintendent's recommendations only for good cause. Section 230.23(5), Florida Statutes. The Superintendent never submitted the request form nor recommended Respondent for employment to the School Board. The Superintendent of Escambia County Schools directed William McArthur, Director of Human Resources, to contact Respondent and tell him to return to work as an instructor at the Juvenile Detention Center in Pensacola, Florida. Mr. McArthur contacted Respondent who then reported to the Juvenile Detention Center for instructional duties around August 14, 1995. Since the Superintendent had not recommended Respondent to the Board, the Board never approved a written annual contract for Respondent. Therefore, Respondent could only be working under an oral or implied contract on a day to day basis with no specified term of employment. Approximately one month after Respondent went to work at the Juvenile Detention Center, Dr. Garber, Assistant Superintendent for Human Resources, was notified by a representative of the State Attorney's Office at the Juvenile Detention Center of a complaint regarding Respondent from a parent relative to his alleged communications with S.C., a female juvenile that had been detained at the center. The representative of the Office of the State Attorney at the Detention Center expressed concern about letters Respondent had allegedly sent to S.C. and wanted him removed from that Detention Center. The School District subsequently received copies of the letters Respondent was alleged to have written to the female student formerly under his instruction at the detention center. Because of the complaint and letters, Respondent was placed on administrative leave with pay while the District investigated the allegations. At the conclusion of the investigation the Respondent was notified by letter dated October 16, 1995, that the Superintendent would not recommend to the Board the award of an annual instructional contract. On October 16, 1995, Respondent was presented with a letter notifying him that he would not be recommended for any further employment with the school district. The October 16, 1995, letter was the first written notification that his employment would terminate. Respondent stopped working for the School Board on October 16, 1995.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered by the Petitioner, Escambia County School Board dismissing the charges of misconduct but upholding the termination of the Respondent, Ricky Sapp, on October 16, 1995 since he was not recommended for annual contact status and did not fall under the protections of Chapter 231, Florida Statutes. DONE and ENTERED this 28th day of August, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1996. APPENDIX The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Petitioner's proposed findings of fact are adopted. The facts contained in paragraphs 13 through 18 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 through 22, 27, 28 and 30 of Respondent's proposed findings of fact are adopted. The facts contained in paragraphs 13, 23 through 26, 29 and 31 of Respondent's proposed findings of fact are subordinate. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 Cervantes Street Pensacola, Florida 32501-3125 William Maloy, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact For approximately seven years, William Mitchell (Respondent) was employed as a custodian with the Monroe County School Board (Petitioner). Until 1997, Respondent worked at night at Horace Bryant Middle School, coming to work around 2:00 p.m. Respondent had very little contact with students during the school day at Horace Bryant Middle School. In or about 1997, Respondent voluntarily transferred to Key West High School and worked during the school day where he had contact with students on a regular basis. As a custodian, Respondent had no responsibility for student discipline at either school. At the time of the hearing Respondent was 53 years of age. He was described by his supervisor at Key West High School as a good employee. Respondent was considered hardworking and gentlemanly. Respondent was not known to be a violent man and had not exhibited any violent or aggressive behavior. Respondent's duties, as custodian at Key West High School, included replenishing the soda can machine and removing the money from the machine in the mornings. In the early part of March 1998, while Respondent was replenishing the machine with sodas, a student, Jerome Simmons,1 took one of the sodas from the machine. Respondent approached Simmons and questioned him regarding the soda, but Simmons denied taking the soda. Respondent believed that Simmons was not telling the truth. The soda was not in Simmons' possession and could not be found. Respondent was aware that it was appropriate for him to report misconduct by a student to the assistant principal or the school resource officer. Respondent reported the incident to the assistant principal, Robert Fletcher. Mr. Fletcher questioned Simmons who again denied taking the soda. Mr. Fletcher determined that nothing could be done because Simmons denied taking the soda and the soda was not in Simmons' possession. Simmons was an eighteen-year-old senior at Key West High School. He was stocky, well built, and muscular, having the appearance of someone who lifts weights. Simmons' tenure at Key West High School had not been without incident. He had been disruptive and been disciplined, which included suspension. John Welsh, an assistant principal, whose responsibilities included discipline of students, was very familiar with Simmons. Mr. Welsh observed, among other things, that Simmons was the kind of person who was likely to get the last word in an argument. A few weeks after the soda incident, on March 23, 1998, Simmons was returning from a meeting with his probation officer at the administrative office of Key West High School when he encountered Respondent who was going to the administrative office to obtain the key for the soda can machine. They were passing one another in a narrow hallway, and Simmons deliberately bumped Respondent; Simmons had sufficient room on his side of the hall to pass Respondent without bumping him. Respondent reacted to the deliberate bump by telling Simmons to look where he was going. Simmons mumbled something unintelligible to Respondent, who continued walking to the administrative office and obtained the key for the soda machine. Even though the assistant principal was located in the administrative office, Respondent did not report the incident. Based upon the last encounter with Simmons, Respondent believed that he needed more than an intentional bump and something mumbled unintelligible by Simmons to demonstrate misconduct by Simmons. After obtaining the key for the soda machine, Respondent proceeded to the soda machine to replenish it with sodas. While Respondent was filling the soda machine, Simmons approached Respondent from the side, staying approximately ten to fifteen feet away from Respondent, and again mumbled something unintelligible. Respondent did not want to stop his work and stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Even though Respondent used the term play, Respondent did not believe that Simmons was playing. Respondent did not report this second encounter to the assistant principal or the school resource officer. Respondent again believed that he needed more than what had happened based upon the previous soda incident involving Simmons that he (Respondent) had reported. Simmons walked away from Respondent toward the gym and again mumbled something unintelligible. However, Simmons did clearly say to Respondent, "come on." Respondent followed Simmons in hopes of being able to decipher what Simmons was mumbling in order to report Simmons if Simmons was saying anything inappropriate, as Respondent believed. It was not inappropriate for Respondent to follow Simmons. When Simmons entered the gym, he approached a physical education teacher, Nancy Thiel, and informed her that a janitor wanted to fight him. Very shortly thereafter, Ms. Thiel saw Respondent at the doorway to the gym. Simmons knew that Ms. Thiel was conducting class in the gym because, approximately twenty minutes earlier, she had directed Simmons to leave the gym since he was not in her class. A finding of fact is made that Simmons' remark that a janitor wanted to fight him is untrustworthy and not made under the stress of excitement. Simmons was calm, not appearing excited, and was relaxed when he made the remark. A finding of fact is further made that Simmons made the remark to shield himself from any wrongdoing and to make it appear that Respondent was the aggressor. Ms. Thiel was standing next to Simmons when Respondent came to the doorway to the gym. Respondent appeared calm and relaxed, not angry. Respondent again stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Simmons removed his shirt and remarked to Respondent, "You want some of this," and proceeded out of the gym to the walkway where Respondent was standing. Respondent knew when Simmons removed his shirt that he (Simmons) was serious and wanted to fight. Respondent remarked, "Let's go."2 When Respondent realized that Simmons was serious and wanted to fight, Respondent was presented with an opportunity, although of short duration, to remove himself from the confrontation. Respondent failed to leave the immediate area of the confrontation and report the incident to an assistant principal or to a school resource officer. Respondent and Simmons confronted one another. They glared at one another and, almost simultaneously, lunged at one another.3 Simmons grabbed Respondent at the bottom of both Respondent's legs; Respondent lowered his weight so as not to allow Simmons to pick him up and throw him to the ground on the concrete. They wrestled and both of them fell to the ground on the dirt and sand area, avoiding the concrete area, with Simmons landing on top of Respondent and being in control. The struggle was over very quickly. No punches were thrown by either Simmons or Respondent. No criminal charges were filed by either Simmons or Respondent against one another. Petitioner has a policy prohibiting fighting at the workplace. Petitioner's policy does not prevent an employee from acting in self-defense. Moreover, if an employee is defending himself or herself and fighting ensues, the employee would not be terminated for fighting. An employee is considered to have acted in self-defense if a student lunged at the employee and the employee held the student and, while holding the student, both the employee and the student wrestle to the ground. Respondent was not acting in self-defense. When Simmons removed his shirt and remarked whether Respondent wanted some of him, Respondent had an opportunity to remove himself from the confrontation and report the situation to an assistant principal or school resource officer. Instead, Respondent chose to continue with the confrontation which led to physical contact between Simmons and Respondent. According to the principal of Key West High School at the time of the incident, teachers receive training related to student behavior/relations as part of their professional training; and educators must adhere to the Florida Code of Ethics, which, among other things, governs their interaction with students. However, no such training and no information is disseminated to support personnel, such as Respondent, regarding standards of behavior between employees and students. Even though custodians are not licensed or trained educators, custodians, according to the principal, are held to the same level of behavior as educators. Furthermore, according to Petitioner's Director of Support Services, Robert Menendez, all school employees, including custodians, are held to a higher standard. Mr. Menendez also indicated that there is an implied code, which is a common sense approach, that employees do not confront students on school campus and create problems. This higher standard and implied code were not communicated to the custodians, including Respondent, and the custodians did not receive training regarding handling conflicts with students or aggressive students. If an employee is being held to a standard, the employee should be informed of the standard and, if required, receive appropriate training regarding the standard. Where there is an absence of communication or information or an absence of appropriate training regarding the standard, the employee cannot be held to the standard since the employee has no knowledge of the standard or has not received the appropriate training for the standard. However, in the instant case, although the higher standard and implied code were not communicated to Respondent and he did not receive training regarding handling conflicts with students or aggressive students, Respondent knew that he could report misconduct by a student to the assistant principal or school resource officer. Respondent failed to make such a report and, instead, chose to confront Simmons. Consequently, the absence of knowledge of a standard or the absence of training on the standard is of no consequence in the instant case. After an investigation, Mr. Menendez determined that Respondent had violated Petitioner's policy prohibiting fighting at the workplace and recommended to the Superintendent of Monroe County schools that Respondent be terminated from employment with Petitioner. Subsequent to Mr. Menendez's recommendation, a review of the incident was conducted by Petitioner's Director of Human Resources, Michael Wheeler, whose role was that of a hearing officer. Mr. Wheeler reviewed the allegations of misconduct against Respondent. Mr. Wheeler determined, based upon his review, that Respondent had violated Petitioner's policy against fighting at the workplace and recommended Respondent's termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Monroe County School Board enter a final order sustaining the dismissal of William Mitchell and terminating his employment. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1999.
The Issue The issue in this case is whether the Respondent's employment by the School Board of Miami-Dade County, Florida, should be terminated.
Findings Of Fact At all times material hereto, the Respondent was employed by the Petitioner as a bus driver and was assigned to Central East Regional Transportation Center (Central East), which is within the school district of Miami-Dade County. The Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) bargaining unit. At all times material, Randy Mazie (Mazie) was the Director of Central East. Juan Perez was the Coordinator of Central East (reporting to Mazie), and Frank Hernandez and Florence Birch were Administrative Assistants (reporting to Perez and Mazie). When a bus driver is absent without advance notice, it often has a substantial impact on the work site. Absenteeism of bus drivers causes delays on that particular route and typically puts stress on both students and school site employees. On a number of occasions, Mazie personally had conversations with the Respondent about her poor attendance record and the consequences of her absenteeism. In addition, employees, including the Respondent, received training about attendance policies and procedures. In March 2000, the Respondent was referred to the Employee Assistance Program. On April 28, 2000, the Petitioner received notification that the Respondent declined to participate in the Employee Assistance Program. The Petitioner accommodated the Respondent by approving leaves of absence for the Respondent during the following time- frames: January 21, 1998, through April 1, 1998; April 2, 1998, through April 1, 1999; November 29, 1999, through January 2, 2000; January 3, 2000, through January 31, 2000; and February 25, 2000, through March 3, 2000. On November 19, 1999, School Board administrators held a conference with the Respondent to address the Respondent’s excessive absenteeism. At the conference the Respondent was advised that she had been absent a total of 52.5 days since April 1999, including 18 days of unauthorized absences. In addition, the Respondent was advised that continued absenteeism would result in a second conference. At the conference, the Respondent was asked if there were any mitigating circumstances for her absences. The Respondent did not provide any explanation for her unauthorized absences. Shortly thereafter, the Respondent received a written summary of the conference. On March 2, 2000, School Board administrators held a second conference with the Respondent to address the Respondent’s continued excessive absenteeism. At the conference, the Respondent was advised that she had been absent without authorization for 6.5 days since the first conference. In addition, the Respondent was advised that she had been absent a total of 74 days during the past 12-month period, including 24.5 days of unauthorized absences. The Respondent was instructed that continued absenteeism would result in a third and final conference, which could result in termination of her employment. At the second conference, the Respondent was asked if there were any mitigating circumstances for her absences. The Respondent did not provide any explanation for her unauthorized absences. Shortly thereafter, the Respondent received a written summary of the second conference. On May 31, 2000, School Board administrators sent a memorandum to the Respondent regarding the Respondent’s continued absenteeism. In the memorandum, the Respondent was directed to report to duty daily, as all of her leave time had been exhausted. The Respondent refused to sign a copy of the memorandum. Notwithstanding the above directive, the Respondent’s excessive absenteeism continued. From November 30, 2000, to December 19, 2000, the Respondent was absent from work. On January 4, 2001, the Respondent presented the School Board Administrators with a medical document signed by the Respondent’s physician purporting to excuse the Respondent from work from November 27, 2000, through January 3, 2001. On January 6, 2001, the School Board Administrators discovered that the Respondent’s physician did not excuse the Respondent from work from November 27, 2000, through January 3, 2001, and that the medical document provided by the Respondent had been falsified. On January 22, 2001, School Board administrators held a third conference with the Respondent to address the Respondent’s continued excessive absenteeism and submission of fraudulent medical documentation. At the conference, the administrators advised the Respondent that she had been absent a total of 38 days during the past 12-month period. The Respondent was also informed that, since March 2000, she had been absent without authorization for 18 days. At the conference, the Respondent was afforded an opportunity to refute the charges that she had submitted fraudulent medical documentation. Despite this opportunity, the Respondent did not refute the charges or provide an explanation. Thereafter, the Respondent received a written summary of the conference; however, the Respondent refused to sign the summary. On February 22, 2001, the Office of Professional Standards held a conference with the Respondent to address the Respondent’s excessive absenteeism and submission of fraudulent medical documentation. At the conference, the Respondent was afforded an opportunity to refute the charges that she had submitted fraudulent medical documentation. Despite this opportunity, the Respondent did not refute the charges or provide an explanation. The Respondent received a written summary of the conference. During the hearing, the Respondent testified that she went to the emergency room (but was not admitted to the hospital) during the time-frame from November 30, 2000, through December 19, 2000. The emergency room personnel told her to follow up with her physician. Notwithstanding these directions, the Respondent admitted that she failed to follow up with her physician. During the time-frame from November 30, 2000, through December 19, 2000, School Board administrators directed the Respondent to submit documents indicating that she was under medical care. Thereafter, the Respondent falsified the medical note. The Respondent also generally testified during the hearing that she was undergoing counseling by a social worker for stress related to her personal life. However, the Respondent never offered as evidence any records from the social worker, and Mazie testified that she never had a conversation with him about meeting with a social worker. Moreover, the Respondent admitted that the School Board Administrators authorized absences related to her daughter’s pregnancy/illness, as well as housing problems she encountered during a storm. In addition, the Respondent conceded that the School Board never denied the Respondent a requested leave of absence. Between April 1, 1999, and November 19, 1999, the Respondent was absent without authorization for 20.5 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 20 days. Between November 19, 1999, and March 2, 2000, the Respondent was absent without authorization for 8.5 days. Between March 3, 1999, and March 2, 2000, the Respondent was absent without authorization for 28.5 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 51 days. Between January 23, 2000, and January 22, 2001, the Respondent was absent without authorization for 22 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 12 days. Between March 3, 2000, and March 3, 2001, the Respondent was absent without authorization for 21 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 8 days. Between November 30, 2000, and December 19, 2000, the Respondent was absent without authorization for 14 consecutive days. Based on the Respondent’s leave history records, she was absent without authorization, between March 3, 2000, and March 3, 2001, as follows: March 10, 2000 (½ day); April 10, 2000 (½ day); April 13, 2000 (½ day); May 30, 2000 (½ day); May 31, 2000 (½ day); June 2, 2000 (½ day); July 18, 2000 (½ day); July 21, 2000 (½ day); November 30, 2000 (1 day); December 1, 2000 (1 day); December 4, 2000 (1 day); December 5, 2000 (1 day); December 6, 2000 (1 day); December 7, 2000 (1 day); December 8, 2000 (1 day); December 11, 2000 (1 day); December 12, 2000 (1 day); December 13, 2000 (1 day); December 14, 2000 (1 day); December 15, 2000 (1 day); December 18, 2000 (1 day); December 19, 2000 (1 day); January 10, 2001 (½ day); January 11, 2001 (½ day); February 15, 2001 (1 day); February 22, 2001 (½ day); and February 27, 2001 (½ day). As a result of the Respondent's conduct, School Board administrators recommended dismissal of the Respondent. Thereafter, the Petitioner suspended the Respondent without pay and initiated these dismissal proceedings.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating the Respondent's employment and denying all other relief sought by the Respondent. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2002.
The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
