The Issue Whether there is just cause to terminate Respondents' employment with the Monroe County School Board.
Findings Of Fact The Events Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within Monroe County, Florida. At all times material to this proceeding, Respondents David Gootee and Marisa Gootee (hereinafter "Mr. Gootee," "Mrs. Gootee, or "the Gootees") served as cosmetology teachers at Key West High School ("KWHS"). Pursuant to the terms of their professional service contracts, Mr. and Mrs. Gootee were obligated to perform, respectively, 4.8 and 7.5 hours of work each school day; in exchange, the Gootees each received salaries.1/ As established during the final hearing, the School Board offers cosmetology instruction to two distinct populations: "traditional" high school students, who are taught during regular school hours; and individuals enrolled in the School Board's adult education program. From what can be gleaned from the record, it appears that, prior to the 2001-2002 school year, adults who received cosmetology instruction did so separately, and at different times (presumably, in the late afternoon or evening), from traditional high school students. Consequently, the work hours for which the Gootees received salaries, which coincided with KWHS's regular bell schedule, were dedicated exclusively to the instruction of traditional students. In or around 2001, however, John Andola, the School Board's director of adult education, asked the Gootees if they would be willing to furnish instruction to the adult students during normal school hours——i.e., at the same time as the traditional cosmetology students. By all accounts, the presence of the adult students would, and ultimately did, impose additional responsibilities upon the Gootees. For instance, the adult students, who were segregated from the traditional students for part of the day (thereby requiring the Gootees to traverse between the two populations), were tested and issued grades.2/ In exchange for their assumption of these extra burdens, Mr. Andola proposed that, in addition to their existing salaries, the Gootees would each receive three hours of compensation——at a rate of approximately $20 per hour——for every workday, notwithstanding the fact that the Gootees would be spending more than three hours daily with the adult students. (In other words, the hourly pay would be "capped" at three hours per workday.) Of the genuine and reasonable belief that Mr. Andola's proposal was legitimate,3/ the Gootees accepted the offer. Before proceeding further, it is important to make two observations concerning the foregoing compensation arrangement. First, and as confirmed by the final hearing testimony of the School Board's witnesses, it was not unheard of in Monroe County for salaried teachers to receive additional, hourly pay for providing instruction to adult education students.4/ Moreover, the disbursement of hourly pay to the Gootees, a practice that would continue unabated from 2001 through September 2009, was no secret; indeed, the authorization of hourly pay on an "as needed basis" is documented throughout the Gootees' personnel forms, which bear the initials or signatures of various School Board officials, including that of the deputy superintendent.5/ In or around 2007, Monique Acevedo replaced Mr. Andola as the School Board's director of adult education. As Mr. Andola's former secretary, Ms. Acevedo was aware that the Gootees were receiving hourly pay, and there is no dispute that the arrangement continued with her approval. At or about the time of Ms. Acevedo's promotion, the adult education department instituted a requirement that its instructors submit written, weekly timesheets. The timesheets, which indicated that the total hours worked per week for the adult program, were signed by the instructor and delivered to the secretary of the department, who, in turn, forwarded the document to Ms. Acevedo for approval. Thereafter, an office manager entered the hours into a computer system, which could then be viewed by the payroll department.6/ Notably, the adult education timesheets related only to the hourly work performed in connection with that particular program; that is, the forms were not intended to document the time spent by salaried instructors in connection with their contractual work responsibilities. Consistent with these procedures, and over the next several years, the Gootees submitted written timesheets to the adult education department. In accordance with the three-hour cap (put in place by Mr. Andola, and continued by Ms. Acevedo), the Gootees billed three hours per day, for a total of 15 hours weekly, on their timesheets. For informational and non-billing purposes only, the Gootees also indicated on the timesheets the span of time in which they were on campus and in the presence of adult students. Specifically, Ms. Gootee typically recorded times of 8:15 a.m. through 3:45 p.m., while Mr. Gootee, who worked a shorter day, generally notated 8:15 a.m. or 8:30 a.m. through 1:00 p.m. However, it must be emphasized, once again, that these ranges, which were recorded solely on the adult timesheets, were not intended to reflect the amount of time the Gootees spent in connection with their salaried, contractual work. (For those duties, KWHS teachers, including the Gootees, were required to sign in and out of the workplace in a separate, daily log.)7/ Subsequently, in late March or early April of 2009, the School Board terminated Ms. Acevedo's employment. At that time, and on an interim basis, Jeff Arnott assumed Ms. Acevedo's duties as the director of the adult education program. Over the next five months, the Gootees continued to submit their weekly timesheets, which Mr. Arnott approved.8/ Thereafter, in September 2009, Mr. Arnott was appointed as the director of the adult education program on a permanent basis, at which point he gained access to the School Board's master schedule. From his examination of the schedule, Mr. Arnott learned that the Gootees' work for the adult program occurred during regular school hours, as opposed to some other time period that did not coincide with their salaried work schedule. Concerned with the "overlap" in the hours, Mr. Arnott immediately inquired of the Gootees (both of whom enjoyed excellent reputations as professionals, a point Mr. Arnott conceded at hearing), who explained, correctly, that the arrangement had been ongoing for years with the approval of the prior directors.9/ Nevertheless, Mr. Arnott reported the issue to the superintendent of schools, culminating in the initiation of the instant proceeding. As noted earlier, the School Board called only two witnesses in this matter: Mr. Arnott, who had no involvement in the adult education department until 2009, some eight years after the Gootees began receiving the hourly pay; and Debra Henriquez, an employee in the School Board's payroll department. Through Ms. Henriquez' testimony, the School Board attempted to establish that the payroll department was unaware of the overlap in the Gootees' hours——an arrangement the witness opines was improper——until September 2009. The School Board fails to recognize, however, that Ms. Henriquez' knowledge of the situation10/ and her view of its legitimacy are of no moment; the issue, as framed by the Complaints, is whether the Gootees, in accepting the hourly compensation, acted with dishonest or fraudulent intent. It is concluded, for the reasons explained below, that the Gootees did not act with such intent. Contrary to the School Board's suggestion, this is not a situation where an educator committed an obvious and indefensible act of impropriety, such as accepting bribes for inflating grades, helping students cheat on the FCAT, or stealing money from the lunchroom cash register——behavior that could not be legitimately defended on the basis that it occurred with a supervisor's encouragement or approval. Here, the director of the adult program, an individual tasked with utilizing adult education funds,11/ offered the Gootees extra pay (approximately $10,000 each per school year, a sum that is hardly conscience shocking) in exchange for their assumption of additional duties; that the work with the adults occurred during regular school hours does not change this fact, nor does it compel a rejection of the Gootees' credible and reasonable testimony that they believed in the arrangement's propriety. This is particularly so in the absence of any evidence that the Gootees' professional services contracts obligated them to accept the adult education students without any corresponding increase in compensation. Finally, the undersigned rejects the School Board's contention that the Gootees' notations on their weekly, adult education timesheets were somehow fraudulent or dishonest. Notably, the entries recorded on the forms accurately reflected the spans of time, during regular school hours, in which the Gootees instructed the adult students——i.e., there is no evidence that the Gootees attempted to conceal the "overlap" by recording time periods when they were not dealing with the adult students, such as after the normal school day or during the evening. Indeed, that the timesheet entries plainly indicated the existence of an overlap only further supports the Gootees' credible testimony that they believed in the arrangement's legitimacy. Determinations of Ultimate Fact It is determined, as a matter of ultimate fact, that Respondents are not guilty of failing to maintain honesty in their professional dealings. It is determined, as a matter of ultimate fact, that Respondents are not guilty of submitting fraudulent information on documents connected with their professional dealings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order: dismissing the administrative complaints; immediately reinstating Respondents' employment; and awarding Respondents any lost salary and benefits. DONE AND ENTERED this 4th day of November, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2013.
The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
Findings Of Fact Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better. Prior to October 15, 1995, a teacher aide position became vacant at H. L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students. Respondent and Ms. Lurie were unable to develop an effective working relationship. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows: I have had conferences with you on December 6, 12 and 15, 1995 and numerous other impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom). The students in this classroom need consistent supervision in a warm nurturing environment. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of the students . . . There appears to be no effective working relationship between you and these associates . . . * * * 6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . . I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team. I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with this written reprimand as disciplinary action. I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/ Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996: To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus. Respondent did not request any type of leave on January 3, 1996. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/ The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. The final order should also terminate Respondent's employment as a teacher aide. DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1996.
The Issue Whether Jose R. Bustos (Respondent) committed the acts alleged in the Revised Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on March 6, 2015, and whether the School Board has good cause to terminate Respondent’s employment as a school security monitor.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Braddock High is a public school in Miami-Dade County, Florida. The School Board hired Respondent on September 19, 2001, as a school security monitor assigned to Braddock High, the position Respondent continuously held until the date of the disciplinary action at issue. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. Braddock High is a large school in terms of student population and campus size. Braddock High employs 12 full-time security monitors. While it is common practice to hire a substitute for an absent teacher, Braddock High does not employ a substitute security monitor to replace an absent security monitor. If a security monitor is absent on any given day, the schedules of the other security monitors must be adjusted to avoid a breech in security. Respondent has been documented for poor attendance since April 2006. DECEMBER 4, 2009, MEMORANDUM Manuel S. Garcia has been the principal of Braddock High for the last 13 years. On December 4, 2009, Mr. Garcia issued to Respondent a memorandum on the subject “Absence from Worksite Directive.” From October 2009 to December 2009, Respondent accumulated 13.5 absences1/ of which 7.5 were unauthorized. The 7.5 unauthorized absences were categorized as “Leave Without Pay Unauthorized (LWOP-U)”. The memorandum issued by Mr. Garcia as Respondent’s supervisor, provided, in part, as follows: Because your absence from duties adversely impacts the work environment, particularly in the effective operation of this worksite, you are apprised of the following procedures concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to a designated site supervisor, Mr. Manuel S. Garcia, principal or Dr. Edward G. Robinson, assistant principal. Absences for illness must be documented by your treating physician and a written note presented to the designated site supervisor upon your return to the site. Your future absences will be reported as LWOU [sic] (unauthorized) until you provide the required documentation to show that you qualify for Family Medical Leave Act (FMLA) or other leave of absence. If it is determined that future absences are imminent, leave just [sic] be requested and procedures for Board approved leave implemented, and the FMLA or ADA requirements, if applicable, must be complied with. These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program and to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities. APRIL 23, 2010, CONFERENCE FOR THE RECORD On April 23, 2010, Respondent was required by Mr. Garcia to attend a Conference for the Record. The purposes of the conference were to address Respondent’s non-compliance with School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties) and his insubordination to attendance directives. Between January 19, 2010, and April 6, 2010, Respondent was absent 14.5 days without communicating his intent to be absent to the principal or the assistant principal. As part of the conference, Mr. Garcia reiterated in writing to Respondent the directives pertaining to attendance set forth in the December 4, 2009, memorandum. Mr. Garcia advised Respondent that “[a]ny non-compliance with these directives will compel [sic] gross insubordination and will compel further disciplinary measures.” Mr. Garcia provided Respondent with a copy of School Board rules 6Gx13-4A.1.21 (Responsibilities and Duties) and 6Gx13-4E-1.01 (Absences and Leave). Mr. Garcia issued Respondent a referral to the School Board’s Employee Assistance Program (EAP). There was no evidence that Respondent used that referral. For the 2009-2010 school year, Respondent was absent a total of 28.5 days of which 17.5 days were unauthorized. DECEMBER 8, 2011, MEMORANDUM OF CONCERN On December 8, 2011, Mr. Garcia issued to Respondent a Memorandum of Concern addressing his excessive absences. Within less than five months into the 2010-11 school year, Respondent had accumulated 15 absences of which 8 were unauthorized. Respondent was informed that he was in violation of School Board Policy 4430 - Leaves of Absence.2/ Additionally, he was directed to report any future absence to Mr. Medina, the assistant principal. DECEMBER 5, 2012, MEMORANDUM On December 5, 2012, Mr. Garcia issued Respondent another memorandum addressing his absences. Mr. Garcia noted that Respondent had been absent a total of 11 days during the 2012-2013 school year. Respondent’s absence on November 21, 2012, was unauthorized. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009, and April 23, 2010. SEPTEMBER 10, 2013, MEMORANDUM On September 10, 2013, Mr. Garcia issued Respondent another memorandum addressing his absences. Between September 27, 2012, and August 29, 2013, Respondent had 36.5 absences, 19.5 of which were unauthorized leave. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009; April 23, 2010; and December 12, 2012. Mr. Garcia stated to Respondent that he considered Respondent’s actions of failing to abide by the attendance directives to be insubordination. OCTOBER 16, 2013, CONFERENCE FOR THE RECORD On October 16, 2013, Mr. Garcia conducted a Conference for the Record with Respondent to address Respondent’s attendance, his failure to abide by the previously issued directives, and his future employment with the School Board. Between September 30 and October 4, 2013, Respondent was absent without authorization. For three of those four days, Respondent did not notify anyone at Braddock High that he would be absent. Mr. Garcia reiterated the directives he had given to Respondent on December 4, 2009; April 23, 2010; December 12, 2012; and September 10, 2013. Mr. Garcia advised Respondent again that failure to comply with directives would be deemed gross insubordination. Mr. Garcia again provided Respondent with a copy of School Board Policy 4430 - Leaves of Absence. Mr. Garcia provided to Respondent a second referral to the EAP. In addition, Mr. Garcia gave Respondent contact information for four School Board Departments (including the name and telephone number of each department’s director). Those departments were Civil Rights Compliance; Leave, Retirement, and Unemployment; Human Resources – Americans with Disabilities Act; and EAP.3/ On October 18, 2013, Mr. Garcia issued a written reprimand to Respondent based on his absenteeism and his repeated failure to notify administrators in advance of absences. JANUARY 16, 2014, CONFERENCE FOR THE RECORD On January 10, 2014, Mr. Garcia issued to Respondent a Notice of Abandonment based on Respondent’s absence from work for the workweek beginning January 6, 2014, and his failure to communicate in advance with any school administrator about the absences. On January 16, 2014, Mr. Garcia conducted a Conference for the Record to address Respondent’s attendance. Respondent’s unauthorized absence for an entire week and his failure to abide by the previously issued directives prompted the Conference for the Record. Mr. Garcia also discussed Respondent’s future employment with the School Board. Mr. Garcia advised Respondent that the directives that had been repeatedly reiterated to Respondent were still in full force and effect. Mr. Garcia advised Respondent that failure to adhere to those directives would be considered gross insubordination. Mr. Garcia gave Respondent copies of the applicable School Board policies, including a copy of School Board Policy 4430–Leaves of Absence, and 4210-Standards of Ethical Conduct. Mr. Garcia issued Respondent a letter of reprimand. MARCH 12, 2014, CONFERENCE FOR THE RECORD Following the written reprimand in January 2014, Respondent was absent without authorization on six consecutive school days in February 2014. On March 12, 2014, Carmen Gutierrez, the district director of the Office of Professional Standards, conducted a Conference for the Record with Respondent because of Respondent’s history of absenteeism and his unauthorized absences in 2014. Ms. Gutierrez issued to Respondent the same directives Mr. Garcia had repeatedly issued to Respondent. Ms. Gutierrez informed Respondent that his failure to follow directives constituted gross insubordination. The Summary of the Conference for the Record contains the following: You were given the opportunity to respond to your excessive absenteeism. You stated that you had a family problem, a family member that was sick and you were helping them [sic] out. Ms. Hiralda Cruz-Ricot spoke on your behalf stating that you had been diagnosed with fibromyalgia and it impedes your ability to do things. She added that you were recently diagnosed and are not undergoing treatment. Ms. Cruz-Ricot said that you would be producing doctor’s notes since Mr. Garcia remarked that he had only received one doctor’s note dated October 18, 2013 from Broward Psychological Services. MAY 7, 2014, SUSPENSION At the School Board meeting on May 7, 2014, the School Board took action to suspend Respondent without pay for fifteen workdays for just cause, including, but not limited to: gross insubordination, excessive absenteeism, non-performance and deficient performance of job responsibilities, and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. Respondent was notified of the Board’s action via a letter dated September 4, 2014. JUNE 3, 2014, NOTICE OF ABANDONMENT Respondent was due back from his suspension on May 29, 2014. Respondent failed to show up for work on May 29th, May 30th, June 2nd, and June 3rd. Respondent was mailed another Notice of Abandonment. Respondent provided no explanation for his leave. At the beginning of the following school year on August 19, 2014, Mr. Garcia reiterated the directives as to absenteeism that had been repeatedly given to Respondent by Ms. Gutierrez and by Mr. Garcia. OCTOBER 28, 2014, CONFERENCE FOR THE RECORD Respondent failed to report to work for four consecutive school days beginning September 29, 2014. As a result, on October 28, 2014, Ms. Gutierrez conducted a Conference for the Record with Respondent to address Respondent’s absenteeism, gross insubordination, non-performance and deficient performance of job responsibilities and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. On December 9, 2014, Respondent received a letter informing him that the Superintendent of Schools would be recommending that the School Board suspend Respondent’s employment without pay and initiate proceedings to terminate that employment. At its regularly scheduled meeting on December 10, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate his employment. FAILURE TO COMMUNICATE In addition to the excessive absenteeism set forth above, between October 2009 and December 2014, Respondent repeatedly failed to communicate in advance with any administrator that he would be absent on days he failed to appear for work. DEPRESSION Respondent’s only exhibit was a letter from Dr. Maribel Agullera, a psychiatrist. This letter confirms that Respondent has been diagnosed with “Mayor Depressive Disorder, Recurrent, Moderate” and “Alcohol Dependence.” The exhibit also confirms that Respondent is on medication. Respondent testified, credibly, that he was diagnosed with depression before 2001, the year he first started working at Braddock High. Respondent testified he has suffered from depression for most of his adult life and that all of his absences were related to depression. There was no other evidence to support the contention that Respondent’s repeated absences should be attributed to depression. In the absence of competent medical evidence to support Respondent’s contention, the undersigned declines to find that Respondent’s excessive absenteeism and his failure to appropriately communicate with school administrators over a five-year period was attributable to depression.4/
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Jose R. Bustos. DONE AND ENTERED this 11th day of May, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2015.
The Issue Whether the Respondent committed the violations alleged in the letter dated February 14, 2002, and in the Notice of Specific Charges filed April 3, 2002, and, if so, whether the Respondent should be dismissed from his employment with the Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Article IX, Section 4(b), Florida Constitution; Sections 230.03(2) and 230.23(5)(f), Florida Statutes (2001). Mr. Fullington is employed by the School Board as a journeyman Plumber II, and, prior to his suspension in February 2002, he was assigned to the North Satellite office of the School Board's Maintenance Department. He is represented by the Dade County School Maintenance Employee Committee, which has a contract with the Miami-Dade County public school system ("DCSMEC Contract") effective June 2001 through September 30, 2002.3 Mr. Fullington has worked for the School Board for 19 years; he began in 1983 as a laborer and worked his way up to journeyman plumber, which requires a five-year apprenticeship. In 1994, the School Board suspended Mr. Fullington and initiated proceedings to dismiss him from his employment, alleging that he had committed misconduct in office by forging the signatures of two of his supervisors on school district documents. After an evidentiary hearing, a Recommended Order was entered by a School Board hearing officer, who noted that Mr. Fullington admitted the charges but was remorseful and presented evidence of mitigating factors. The hearing office concluded that Mr. Fullington should not be dismissed from employment and recommended that Mr. Fullington be suspended without pay for four months. The School Board entered a Final Order on August 23, 1995, in which it adopted the hearing officer's Recommended Order and imposed the penalty recommended by the hearing officer. Mr. Fullington was promoted from an apprentice plumber to a journeyman Plumber II in January 1998. Leo Akers has been Mr. Fullington's foreman for seven or eight years.4 According to Mr. Akers, Mr. Fullington's job performance was, until his suspension, adequate, although his work was excellent when he was an apprentice. In Mr. Akers' experience working with Mr. Fullington, he has always performed his job assignments. Mr. Akers has never reported Mr. Fullington to his superiors for a discipline problem, he has had no difficulties working with Mr. Fullington, and he has received no complaints about Mr. Fullington from his co-workers. Prior to the incidents giving rise to this proceeding, the only disciplinary action taken by the School Board against Mr. Fullington was the four-month suspension in 1995. In June 1997, Mr. Fullington and his co-worker Steven Montgomery were commended by the principal of a Miami-Dade County elementary school, who wrote a letter to Max Metzger, the Director of the North Satellite of the Maintenance Department, praising Mr. Fullington and Mr. Montgomery for their work re- piping the school's broken water system. The principal stated among other things that "[t]he actions, behavior and cooperativeness of these two men deserve great recognition and applause, because our school operation was normal and free of major disruption as they worked." Solicitation for prostitution. Mr. Fullington was assigned overtime work on Saturday, August 18, 2001. When he reported to work at approximately 6:00 a.m., Mr. Akers, his foreman, met Mr. Fullington and told him to drive a School Board van to a plumbing supply house to pick up a load of pipe needed for the job. Mr. Fullington was then to meet Mr. Akers and two other plumbers at the job site, where they were installing the plumbing for a kitchen at one of Miami-Dade County's trade schools. On the way to the supply house, Mr. Fullington initially drove down Interstate 95, but he decided to avoid the traffic and take Second Avenue. As he drove down Second Avenue, he saw a young woman standing on the corner of Northwest 79th Street and Second Court, and he thought he recognized her as someone he knew in high school and from his neighborhood. Mr. Fullington turned the van around and drove back to speak to the woman. He pulled the van over to the side of the street, and he and the young woman engaged in a short conversation. According to Mr. Fullington, the encounter consisted of the following: He approached the young woman in the School Board van and told her that she looked familiar and that he thought he knew her. She responded that he looked familiar, and she asked him what he was doing. He responded that he was working; she responded that she was working, too. Mr. Fullington testified that, when he realized what the woman meant, he began to laugh because he was embarrassed that he had stopped, and he drove away. The young woman was actually Officer Robin Starks, an undercover police officer working on a "prostitution detail," posing as a decoy. During her time with the Miami Police Department vice unit, Officer Starks has participated in at least 200, and maybe more, prostitution details. On August 18, 2001, she was assigned to work on the prostitution detail from 4:00 a.m. to 9:00 a.m., during which time she made five or more arrests. Officer Starks testified that, when she is working as a decoy on a prostitution detail, she does not do anything that would make a person think she was a prostitute: She does not walk provocatively or wave at passers-by but just stands on a corner; she normally wears shorts or a skirt, and she never dresses like a prostitute but always dresses the way she would normally dress at home. She did not recall specifically what she was wearing on August 18, 2001. After the short conversation, Officer Starks turned and walked away from Mr. Fullington, who had remained seated in the van, and he drove away. She gave a signal to another person on the detail that Mr. Fullington should be arrested, and she proceeded to a nearby police vehicle and completed the narrative portion of an arrest affidavit with the following information: While working in an undercover capacity, defendant drove up in a large silver utility van bearing tag 100195 and M-768 affixed on the back of the vehicle. Defendant called this officer over and offered $10.00 dollars for some head. Take down signal was provided, units were notified and the defendant was apprehended.[5] The Arrest Affidavit was not signed by a notary in Officer Starks' presence, and Officer Starks' did not participate further in the events surrounding Mr. Fullington's arrest. According to that portion of the Arrest Affidavit completed by the officer who actually took him into custody, Mr. Fullington was arrested at 7:48 a.m. at Second Avenue and Northwest 75th Street and charged with soliciting to commit prostitution. He was taken in a police car to a substation, and the School Board's utility van was impounded. Mr. Fullington was in a panic after his arrest. The police officer tried to calm him and explained that he would not be put in jail but that he must sign the Arrest Affidavit before he could be released to return to work. Mr. Fullington signed the arrest affidavit, indicating that he would appear in court, and the police officer then told him he would have to pay $1,000.00 to get the School Board's vehicle out of the impoundment lot. The police officer drove Mr. Fullington to a Publix supermarket in his squad car so that Mr. Fullington could get cash from his savings account from the ATM. Mr. Fullington had only $860.00 in his savings account, and the police officer loaned him the additional $140.00. Mr. Fullington paid the $1,000.00 and got the School Board van out of impoundment. Before he left the substation, Mr. Fullington called Mr. Akers and told him he had an emergency and could not pick up the plumbing supplies. Mr. Akers told Mr. Fullington to report to the work site when he had taken care of the emergency. He reported for work at around 11:00 a.m. and told Mr. Akers a totally fabricated story to explain his absence. At the hearing, Mr. Fullington expressed remorse for having told Mr. Akers a lie but explained that, at the time, he was not thinking rationally and did not want anyone to know that he had been arrested for soliciting prostitution.6 On October 2, 2001, the criminal case against Mr. Fullington on the charges of offering to commit prostitution was closed with adjudication withheld and community service. Overtime hours. In accordance with the usual procedure, Mr. Akers completed a Facilities Support Services Weelky [sic] Overtime Report for each of the plumbers working on August 18, 2001, and left the forms at the job site. Each plumber was to sign his form at the end of the day to certify the number of overtime hours he had worked; the forms were then to be submitted to Mr. Akers for his review. Mr. Fullington signed the Weekly Overtime Services form with his name on it, which reflected that, on August 18, 2001, he had worked at the "Dorsey Skill" site from 6:00 a.m. until 4:30 p.m., for a total of 10 hours of overtime. Above his signature, was the following statement: "I certify that the work and hours indicated above are true and correct." It was Mr. Fullington's responsibility to ensure that the correct number of overtime hours was reported on the form. Mr. Fullington also signed a Daily Status Form for Maintenance and Operations on August 18, 2001, that showed that he had worked a total of 10 hours overtime, consisting of one hour of overtime travel and 9 hours of overtime. At the hearing, Mr. Fullington explained that he was so distracted by the events of August 18, 2001, that he signed both forms without looking at them. After Maintenance Department administrators learned that Mr. Fullington had inaccurately reported his overtime hours for August 18, 2001, he was advised that he could submit a Weekly Overtime Report and a Daily Status Report reflecting the number of hours that he had actually worked on August 18, 2001, and that he would get paid for those hours. Mr. Fullington did not submit the corrected forms and has not been paid for the hours of overtime that he actually worked on August 18, 2001. Additionally, Mr. Fullington never asked for, or received, reimbursement from the School Board for the $1,000.00 he paid to recover the School Board van from the impoundment lot. Post Office incident At around 12:30 p.m. on October 31, 2001,7 during their lunch hour, Robert Brown, the District Director of Maintenance Operations for the Miami-Dade County public school system, and Peter Vadas, Mr. Brown's co-worker, stopped at a post office so Mr. Vadas could purchase stamps. Mr. Brown saw a School Board van parked in the post office parking lot, and he waited in the car while Mr. Vadas went into the post office so he could keep the van under observation. After a few minutes, Mr. Vadas returned to the car. While Mr. Vadas was buckling his seat belt, Mr. Brown saw Mr. Fullington walking across the post office parking lot with a letter in his hand. The letter Mr. Fullington picked up was a certified letter from the School Board's Office of Professional Standards. Mr. Fullington was in the post office approximately 10 minutes. Mr. Brown observed Mr. Fullington get into the School Board van, where he sat and read the letter. As he and Mr. Brown sat in the post office parking lot observing Mr. Fullington read his letter, Mr. Vadas telephoned Kenny McFarland to report that Mr. Fullington was at the post office in a School Board van. Mr. McFarland, a Coordinator II at the North Satellite of the Maintenance Department, is a senior administrator who was in the supervisory chain-of-command for Mr. Fullington.8 After reading the letter, Mr. Fullington drove off, and Mr. Brown and Mr. Vadas returned to their office. Mr. Fullington's regular, assigned lunch half-hour was 11:30 a.m. to 12:00 p.m. This time could be changed with permission from his foreman. The post office that Mr. Fullington visited was located approximately 10 miles from the schools at which he was assigned to work that day. Incident involving Mr. Akers. On November 2, 2001, Mr. Fullington picked up his work assignments as usual from the "foreman's table" in the large office in which a number of maintenance foremen had their desks and work areas. At the time, there were perhaps 15 or 20 people in the foremen's office. The paperwork for Mr. Fullington's work assignments was affixed to a clipboard made of aluminum. Mr. Fullington was assigned to work with Steven Montgomery and, as they were walking to the truck with their assignments, Mr. Montgomery told Mr. Fullington that he overheard Mr. Akers telling someone that Mr. Fullington never showed up at a particular school to complete a work order. Mr. Montgomery believed that Mr. Akers was repeating something that someone else had told him about Mr. Fullington, and Mr. Montgomery told Mr. Fullington that he needed to clear up the misunderstanding. Mr. Fullington was upset to hear that Mr. Akers believed he had not completed a work assignment, and he wanted Mr. Akers to know that the information he was repeating was not correct. Mr. Fullington asked Mr. Montgomery to go back to the foremen's office with him so he could resolve the matter immediately. Mr. Fullington and Mr. Montgomery went back into the foremen's office area. Mr. Akers was sitting at his desk, which was made of metal. Mr. Fullington approached the desk and dropped the metal clipboard he was carrying onto the top of Mr. Aker's desk, next to his computer, in such a manner that it made a loud noise. Mr. Fullington began "hollering" at Mr. Akers, saying something about Mr. Akers trying to set him up.9 It was clear to Mr. Akers that Mr. Fullington was upset and angry, but Mr. Akers did not have any idea what Mr. Fullington was talking about. At the time, Mr. Akers felt threatened by Mr. Fullington; he was caught off guard by the outburst and does not recall saying anything in response to Mr. Fullington's accusations. When Mr. Fullington left the foremen's office, he forcefully kicked or pushed open the door to the hallway. Although Mr. Akers considered the incident very serious, he did not report the incident to his supervisor or call the police or security. Another foreman, John DiGregorio, who was in the room at the time of the incident, became nervous during the incident, primarily because of Mr. Fullington's size.10 Mr. DiGregorio immediately called his supervisor, Frank Brighton, whose office was on the floor above that of the foremen. Mr. Brighton came down to the foremen's office and questioned Mr. DiGregorio and Mr. Akers about the incident. Mr. Brighton reported the incident to Mr. Akers supervisor, Anthony Adams. Several days after the incident, Mr. Fullington asked Mr. Akers if he had felt threatened during the incident; Mr. Akers responded in the affirmative, and Mr. Fullington apologized. At the hearing, Mr. Fullington testified that he felt very badly about having raised his voice to Mr. Akers in anger. He explained that, at the time, he was under a lot of pressure because the Conference-for-the-Record to discuss the events of August 18, 2001, was scheduled for November 6, 2001, and he was concerned that his job with the School Board was in jeopardy. Mr. DiGregorio, who has been a maintenance foreman with the School Board for 10 years, had never previously seen Mr. Fullington act in any way that could be considered hostile or threatening. Mr. DiGregorio described Mr. Fullington's demeanor as generally gentle and non-threatening. In the years that Mr. Akers has worked with Mr. Fullington as his foreman, the only time Mr. Fullington ever raised his voice in Mr. Akers' presence was during the November 2, 2001, incident. Subsequent to the incident, Mr. Akers did not feel that he needed any protection from Mr. Fullington, they continued their usual good working relationship, and Mr. Fullington's job performance continued to be satisfactory. November 6, 2001, Conference-for-the-Record. On November 6, 2001, Reinaldo Benitez, an Executive Director of the School Board's Office of Professional Standards, held a Conference-for-the-Record with Mr. Fullington to address Mr. Fullington's arrest for offering to commit prostitution, to review his record with the School Board, and to discuss his future employment status with the Miami-Dade County public school system. Mr. Fullington's inaccurate reporting of the overtime hours he worked on August 18, 2001, was also discussed. Mr. Fullington's prior disciplinary record was set forth in the Summary of the Conference-for-the-Record. With the exception of the four-month suspension in 1995, the only disciplinary action taken against Mr. Fullington was a verbal reprimand in 1990 for improper conduct. Mr. Fullington was given an opportunity at the Conference-for-the-Record to consider resigning his position; he refused. The following directives were given to Mr. Fullington on November 6, 2001: Adhere to all M-DCPS School Board Rules at all times, especially 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct. Honor your work hours from 7:00 a.m. to 3:30 p.m. Adhere to all maintenance procedures and regulations at all times. Adhere to the most direct route when traveling from location to location, unless you obtain authorization from your supervisor. Refrain from submitting any fraudulent documents to M-DCPS at any time. Mr. Fullington was advised that dismissal from his employment was a potential disciplinary action. After the November 6, 2001, Conference-for-the-Record, Mr. Vadas, District Director of Maintenance Operations; Max Metzger, the Director of Maintenance Operations at the North Satellite; and James Monroe, Executive Director of Facilities Operations, met and reviewed the data submitted at the conference. As a result of their deliberations, Mr. Vadas sent a memorandum, dated November 13, 2001, to the Office of Professional Standards recommending that Mr. Fullington be terminated from his employment with the School Board.11 No one asked for Mr. Akers' input on the recommendation, discussed the recommendation with him, or explained to him the reasons for the recommendation that Mr. Fullington's employment be terminated. There is no evidence that, prior to his suspension in February 2002, Mr. Fullington violated any of the directives given on November 6, 2001. November 16, 2001, Conference-for-the-Record. On November 16, 2001, Mr. Metzger, held a Conference- for-the-Record, the purpose of which was "to address your [Mr. Fullington's] failure to follow the Maintenance Department's policies and procedures as they pertain to the use of M-DCPS vehicles, your verbal abuse towards your foreperson, and other performance-related issues."12 The administrators at the Conference-for-the-Record discussed a number of the issues with Mr. Fullington, including Mr. Fullington's use of a School Board vehicle to visit a post office on personal business and Mr. Fullington's angry confrontation with Mr. Akers.13 No formal directives were given to Mr. Fullington as a result of this Conference-for-the-Record. Mr. Fullington was, however, reminded of the School Board policy that School Board vehicles are not to be used for personal business,14 of the School Board rules relating to employee conduct and to violence in the workplace, and of several other concerns.15 On January 15, 2002, a meeting was held during which Mr. Fullington was advised of the recommendation that he be dismissed from his employment with the School Board. Mr. Fullington was again offered the option of resigning his position. In a letter dated January 30, 2002, the Superintendent of Schools for Miami-Dade County notified Mr. Fullington that he was recommending to the School Board that, at its February 13, 2002, meeting, it suspend and initiate dismissal proceedings against him for "just cause." A letter to Mr. Fullington dated February 14, 2002, contained confirmation that the School Board had followed the Superintendent's recommendation. Summary Offering to commit prostitution. In the Notice of Specific Charges, the School Board included the allegation that Mr. Fullington "solicited prostitution from an undercover police officer."16 The School Board has, however, failed to establish by the greater weight of the evidence that Mr. Fullington solicited prostitution from Officer Starks. The testimony of Officer Starks and Mr. Fullington has been carefully considered, and there is nothing in either the testimony or the demeanor of Mr. Fullington and Officer Starks or in the other evidence presented on this issue that offers a cogent reason to accept Officer Starks' version of the incident over that of Mr. Fullington. This finding is based on a careful consideration of the totality of the evidence presented in this case relevant to the issue of whether Mr. Fullington solicited prostitution and a careful assessment of the credibility of Officer Stark and Mr. Fullington and of the persuasive value of their testimony.17 Consequently, discipline cannot be imposed on Mr. Fullington based on the allegations in the Notice of Specific Charges that he solicited prostitution. Additionally, the allegations that Mr. Fullington committed the offense while working overtime and while driving a School Board vehicle and that the School Board vehicle was impounded cannot form the basis for the imposition of discipline because the underlying allegation that he solicited prostitution has not been established.18 Reporting incorrect number of overtime hours worked on August 18,2001. In the Notice of Specific Charges, the School Board alleged that Mr. Fullington "falsely reported that he worked ten hours on that date [August 18, 2001]." Mr. Fullington does not dispute that he signed the Weekly Overtime Report and the Daily Status Report on August 18, 2001, certifying that he had worked 10 hours of overtime on that date and that the actual amount of time he worked on that day was not accurately reported on the forms. Even though credence is given to Mr. Fullington's explanation that he was so distraught by the events of August 18, 2001, that he did not look at the number of hours included on the forms, by signing the forms, Mr. Fullington certified that the number of overtime hours shown on the forms was correct. Mr. Fullington, therefore, submitted false information to the School Board, and he was not honest in his dealings with the School Board with respect to the overtime hours he worked on August 18, 2001. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's inaccurate reporting of his hours for August 18, 2001, was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board has failed to prove by the greater weight of the evidence that Mr. Fullington intentionally misrepresented the number of overtime hours that he worked on August 18, 2001. There is no evidence that Mr. Fullington intended to submit inaccurate information or that he engaged in any type of deceitful conduct in an attempt to ensure that he was paid for more overtime hours than he actually worked on August 18, 2001. And, given his many years of employment in the School Board's Maintenance Department, it is reasonable to infer that Mr. Fullington knew that Mr. Akers would have noted the discrepancy before submitting the forms to payroll. Use of the School Board van to go to the post office on personal business. The School Board has proven by the greater weight of the evidence that Mr. Fullington used a School Board vehicle for personal business when he went to the post office at about 12:30 p.m. on October 31, 2001, to collect a certified letter from the School Board. In doing so, Mr. Fullington violated the School Board's policy, set forth in the Maintenance Handbook that expressly prohibits the use of a School Board vehicle for personal business. Under the circumstances, Mr. Fullington committed a minor violation of Maintenance Department policy. Nonetheless, even though a minor offense, Mr. Fullington's use of the School Board's vehicle to go to the post office on October 31, 2001, constitutes the use of his access to School Board vehicles for his personal advantage. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's use of a School Board vehicle for personal business on this occasion was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board failed to present any creditable evidence to support its allegation in paragraph 7 of the Notice of Specific Charges that Mr. Fullington reported that he had worked at Barbara Goleman Senior High School from 7:30 a.m. to 1:00 pm. on October 31, 2001.19 Confrontation with Mr. Akers. Mr. Fullington did not controvert the evidence presented by the School Board that, on the morning of November 2, 2001, he confronted his foreman, Mr. Akers, about a negative comment Mr. Akers reportedly made about Mr. Fullington to other School Board employees; that he was angry and upset; that he shouted at Mr. Akers; and that he angrily and forcefully pushed the door open when he left the foremen's office. The evidence presented by the School Board is also sufficient to establish that Mr. Akers and Mr. DiGregorio perceived Mr. Fullington's behavior as threatening and that Mr. Akers felt fear during the confrontation. The impact of Mr. Fullington's conduct on this occasion is, however, mitigated by the testimony of Mr. Akers that he and Mr. Fullington worked together in a satisfactory supervisor-employee relationship after the November 2, 2001, incident and by the testimony of both Mr. Akers and Mr. DiGregorio that they have never felt threatened by or nervous around Mr. Fullington before or since the November 2, 2001, incident. The School Board has, therefore, established by the greater weight of the evidence that Mr. Fullington committed three offenses: He submitted two forms containing an inaccurate statement of his overtime hours on August 18, 2001; he used a School Board vehicle for personal business; and he confronted Mr. Akers in anger. However, none of the three offenses is inconsistent with the standards of public conscience and good morals or impaired Mr. Fullington's service in the community; none of the three offenses involves the constant or continuing intentional refusal to obey a direct order; none of the three offenses constitutes repeated violations of the law or repeated acts of indiscretion that persisted over an extended period of time, and none of the offenses was so serious that it impaired Mr. Fullington's effectiveness as a School Board employee. In light of Mr. Fullington's 19-year employment record with the School Board, which is marred by only one verbal reprimand and one four-month suspension, these three offenses, whether considered separately or cumulatively, are not sufficient to constitute "just and good cause" to suspend and dismiss Mr. Fullington from his employment with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order Dismissing Counts I, II, IV, and V of the Notice of Specific Charges against Benjamin Fullington; Finding that Mr. Fullington engaged in conduct unbecoming a School Board employee, in violation of School Board Rule 6Gx13-4A-1.21(I); Reinstating Mr. Fullington to his position as a Plumber II with the School Board's Maintenance Department, with full back pay and benefits; and Issuing a written reprimand to be placed in Mr. Fullington's personnel file. DONE AND ENTERED this 30th day of September, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 30th day of September, 2002.
The Issue Whether it was appropriate for Petitioner, Pinellas County School Board, to terminate the employment of Respondent, Curtis Brown, under Section 1012.34, Florida Statutes (2007), due to his failure to correct performance deficiencies after having been placed on Professional Services Contract Probation for 90 days, in violation of School Board Policy 8.25(1)(t); his "incompetence," in violation of School Board Policy 8.25(1)(u); his "insubordination," in violation of School Board Policy 8.25(1)(u); and his failure to comply with "School Board Policy, State Law or the Appropriate Contractual Agreement," in violation of School Board Policy 8.25(1)(x) and Section 1012.33, Florida Statutes (2007).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner operates, controls, and supervises the public schools of Pinellas County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes policies that control the activities of its teaching professionals. Respondent is employed by Petitioner as a math teacher at Johns Hopkins Middle School and has a Professional Services Contract. Petitioner employs a formalized teacher evaluation process that assesses 25 teaching "expectations." These "expectations" are grouped in three related categories: Highest Student Achievement, Safe Learning Environment, and Effective and Efficient Operations. Each "expectation" receives one of four ratings: Exceeds Expectations, Meets Expectations, In Progress, and Not Evident. Assessments are made on specific and detailed indicia during observations, interviews, and review of data regarding student achievement. Depending on the number of indicia observed for each of the "expectations," a teacher receives a proficiency rating of Level 1 through 4, with Level 4 being the highest. Below a Level 1 is considered unsatisfactory. Respondent was rated unsatisfactory for school years 2006-07 and 2007-08. There are approximately 8,000 teachers in Pinellas County. Of the 8,000, 23 were rated unsatisfactory for the 2007-08 school year; only three were rated unsatisfactory for both 2006-07 and 2007-08. A state requirement of teacher appraisal includes student performance and learning gains for each student in a teacher's class. The Florida Comprehensive Achievement Test ("FCAT") is probably the most notorious student achievement data source in Florida. Unfortunately, the FCAT scores become available in July. Most annual teacher assessments are completed in April of each school year. However, there are other student achievement data sources that can be appropriately used in assessing student performance and learning gains. They include teacher-made pre- and post-tests, district developed assessments, student grades, and curriculum developed assessments. A teacher may offer any of these data sources during his or her evaluation. Because Respondent had received an unsatisfactory rating for the 2006-07 school year, administrators at his school and from the district office provided special attention and direction during the first months of the 2007-08 school year designed to help Respondent improve his teaching performance. The efforts of the administration were not successful. Respondent was placed on a 90-day probation period on January 14, 2008. He was advised of his unsatisfactory performance. At the same time, he received a revised "success plan" and a copy of Section 1012.34, Florida Statutes. Respondent received several formal observations and critiques during the probation period. Petitioner provided the requisite assistance, direction, and on-going assessment. During the 90-day probationary period, Respondent did not respond to specific corrective direction given him by administrators regarding a myriad of basic administrative details, teaching techniques, and methodology. Respondent's annual evaluation took place on April 24, 2008, after the conclusion of the 90-day probation. Even though requested, Respondent failed to provide any documentation of positive classroom results. Even though Respondent failed to present any evidence of positive classroom results, the evaluator (the school assistant principal) had monitored potential classroom progress through various data available to him. He failed to note any positive trend. Respondent received 19 "Not Evident" ratings in 25 "Expectations" and an unsatisfactory rating. Respondent's performance problems were increasing in spite of a concerted effort by the administration to correct the trend. In the 2005-06 school year, he received six "Not Evident" ratings; in 2006-07, 14 "Not Evident" ratings; and in 2007-2008, 19 "Not Evident" ratings. Over the several years contemplated by the testimony of school administrators who had supervisory authority over Respondent, he failed to teach the subject matter assigned, failed to complete lesson plans correctly and timely, failed to use a particular math teaching software program (River Deep) as required, failed to take attendance, and did not use the required grading software. In each instance he was encouraged and, then specifically directed, to comply with established policy regarding these areas of teaching responsibility; and yet, he failed to do so. Respondent's teaching record contains memos regarding the following: Two formal conferences regarding use of excessive force (12/6/02 and 10/29/03); A formal conference regarding growing number of parent concerns over penalizing students on academic work for behavioral problems and giving students F's for assignments that they couldn't complete due to lost work books (11/3/2004); A formal conference summary involving several issues including instructional methodology, leaving students unsupervised in class and leaving campus early (1/24/2005); Three reprimands for disparaging remarks made to or about students (1/19/05, 2/16/05, 4/02/07); A 15-day suspension for falling asleep in class and again leaving students unattended in class (7/12/2005); A formal conference summary for again leaving students unattended in the classroom and unsupervised outside of the classroom door (2/9/2007); and A formal conference summaries for missing a meeting and not turning in lesson plans and IPDP's (12/04/07, 1/29/08, 3/03/08).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Curtis Brown's, Professional Services Contract be terminated. DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 23rd day of January, 2009. COPIES FURNISHED: Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Julie M. Janssen Superintendent of Schools Pinellas County School Board 301 Fourth Street Southwest Largo, Florida 33770-2942 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurie A. Dart, Esquire Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
The Issue Whether the Respondent's employment with the School Board of Dade County should be terminated.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Dade County School Board is responsible for operating, controlling, and supervising all public schools within the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997). Ms. Scott is employed by the School Board as a custodian. She began working for the School Board in 1990 as a part-time food service worker at South Dade, and, in early 1992, she began working at South Dade as a full-time custodian. Custodians are classified by the School Board as maintenance workers, and Ms. Scott was a member of AFSCME at all times material to this action. The school's head custodian is responsible for overseeing the day-to-day performance of the custodians, which includes assigning duties to each custodian and developing a schedule for each custodian identifying the tasks that must be accomplished during specified blocks of time. The schedule is approved by the principal of the school. John Alexander is, and was at all material times, the head custodian at South Dade and Ms. Scott's immediate supervisor. Ms. Scott's job responsibilities and duties included "policing" 2/ all ten girls' restrooms after each class change; policing the girls' locker room; policing certain other areas, including designated corridors, the auditorium lobby, the clinic, and the band area; cleaning five girls' restrooms after 2:00 p.m.; cleaning designated cafeteria windows; removing graffiti from walls, mirrors, and corridors as needed; cleaning and disinfecting the drinking fountains in all corridors; cleaning graffiti off walls and doors in the ten girls' restrooms; and cleaning, dusting, and mopping the audio-visual room. Ms. Scott was also expected to respond to emergencies. These duties were the same as those assigned to the female custodian whom Ms. Scott replaced and as those currently being performed by the woman who replaced Ms. Scott at South Dade. Ms. Scott's training consisted, first, of working for several weeks with the female custodian she was hired to replace. Then, after Ms. Scott's predecessor retired, Mr. Alexander worked with her for approximately two weeks. Mr. Alexander noticed problems in her job performance shortly after Ms. Scott began working as a custodian. In a memorandum dated May 12, 1992, Mr. Alexander identified two specific incidents when Ms. Scott refused to follow his instructions. He notified Ms. Scott in the memorandum that he would recommend her termination as of May 19, 1992, during her probationary period, for lack of motivation and failure to perform her job responsibilities. As a result of this memorandum, on May 19, 1992, Ms. Scott, Mr. Alexander and Dr. Paul Redlhammer, the principal of South Dade at that time, met to discuss Ms. Scott's job performance. After this meeting, Dr. Redlhammer sent Ms. Scott a "Memo of Understanding: Job Performance," in which he summarized the reasons for the concern about her job performance and notified her that Mr. Alexander would work with her for two weeks to help her improve her job performance. Mr. Alexander did not notice any improvement in Ms. Scott's work during the two-week period or thereafter. On February 3, 1993, Mr. Alexander had a discussion with Ms. Scott about leaving work early, failing to empty the trash cans in her areas, and failing to clean the floor in the audio- visual room. On May 21, 1993, Mr. Alexander issued a Notification of Written Warning to Ms. Scott regarding her unsatisfactory performance, which included insubordination, disrespect, and improper behavior. Mr. Alexander proposed that Ms. Scott's file be reviewed and that she be given an opportunity to explain her performance. Mr. Alexander intended to recommend her termination from employment. From September 24, 1993, through October 27, 1993, Mr. Alexander kept a log of the time Ms. Scott reported for work and left work each day. The log reflected that Ms. Scott left work thirty to forty-five minutes early on fifteen days during that period, that she took a forty-minute morning break one day, and that she reported for work between one hour and forty minutes and two and one-half hours late on three days. In Ms. Scott's November 15, 1993, annual evaluation, Mr. Alexander rated Ms. Scott poor in the categories of taking lunch and breaks at the proper times, cleaning bathrooms, washing windows, following orders, following work schedules, and working well with other custodians. Mr. Alexander discussed the evaluation and her deficiencies with Ms. Scott, and she acknowledged by her signature that she had seen the written evaluation. Ms. Scott's job performance did not improve during the 1994-1995 school year. Despite being told repeatedly not to do so, Ms. Scott spent inordinate amounts of time talking with school security monitors in the school's corridors and in the school's north parking lot, sometimes spending an hour or more a day in these conversations. During most of that time, Ms. Scott was not on authorized breaks or lunch period. At the same time, Ms. Scott often did not properly police the girls' bathrooms or clean the areas for which she was responsible, and, on several occasions, she refused to obey direct orders from Mr. Alexander. In September 1994, Orlando Gonzalez, the assistant principal at South Dade, scheduled an informal conference with Ms. Scott to discuss the deficiencies in her work performance, including an incident in which Mr. Gonzalez observed Ms. Scott watching television at 9:30 a.m. in the audio visual room. Ms. Scott left the school before the scheduled conference without permission. As a result of this behavior, Mr. Gonzalez requested that Donald Hoecherl, the new principal at South Dade, schedule a formal conference for the record to discuss "serious deficiencies in her job performance." Mr. Gonzalez later withdrew the request for the conference on the record because he thought he could accomplish more by counseling with Ms. Scott informally to help her improve her job performance. Nonetheless, a conference for the record was held by Mr. Hoecherl in November 1994 for the stated purpose of addressing "continuous incidents of insubordination, failure to complete assigned work, and leaving work early." Ms. Scott was advised by Mr. Hoecherl that, if the problems were not resolved, another conference for the record would be held and that he would formally request her dismissal. Ms. Scott refused to sign the conference summary. Ms. Scott's job performance did not improve after the November 1994 conference for the record. Mr. Hoecherl tried to work with Ms. Scott on an informal basis, but his efforts to improve her job performance were not successful. In April 1995, Mr. Gonzalez received complaints from two parents about the lack of cleanliness in the ladies' restroom in an area which Ms. Scott was responsible for cleaning. Mr. Gonzalez told Mr. Alexander to direct Ms. Scott to clean that restroom. The next day, Mr. Gonzalez found that the restroom had not been cleaned. Mr. Gonzalez prepared a memorandum to Ms. Scott directing her to clean the restroom. In June 1995, a Notification of Written Warning was directed to Ms. Scott because she refused to obey direct orders from Mr. Alexander. Ms. Scott's job performance deteriorated during the 1995-1996 school year. On October 5, 1995, a Notification of Written Warning was issued for "[f]ailure to follow and complete assigned work." On November 8, 1995, a conference for the record was held and was attended by Ms. Scott and two representatives of AFSCME, as well as by Mr. Hoecherl, and Mr. Gonzalez. Three issues were discussed: Ms. Scott's direct and implied insubordination when she refused an order by Mr. Alexander to clean up the clinic area after a student became ill and when she twice refused to comply with Mr. Hoecherl's request that she step into his office to discuss the incident; Ms. Scott's pattern of failing to complete her job assignments; and her pattern of loitering on the job by talking to the security monitors in the corridors and in the north parking lot. The written summary of the conference for the record, dated November 13, 1996, included the following: In an effort to resolve these issues the following directives were outlined: Comply with all requests and directives issued by your immediate supervisor or administrator. . . . In regard to this issue failure to comply with the direction of an administrator or immediate supervisor constitutes insubordination and will result in additional disciplinary action. Follow your job assignments as given to you prior to this conference and again at this conference. The cleaning must be performed in a satisfactory manner meeting the requirements to maintain a clean and healthy school setting. Failure to complete your job assignments will result in additional disciplinary action. Refrain from loitering while on the job. You are reminded that you may spend your break and lunch time in dialog with others if you wish. You are not entitled to spend an inordinate amount of time talking and not performing your job assignments. Failure to meet this condition will result in additional disciplinary action. Ms. Scott refused to sign the written summary of the conference. Ms. Scott's job performance did not improve after the conference, and she did not follow the directives outlined for her. She continued to talk with other employees at times when she had no scheduled break; she failed to perform or inadequately performed her assigned tasks; and she engaged in a pattern of arriving at work late without authorization, taking time off during her shift without authorization, and leaving work before the end of her shift without authorization. On or about February 16, 1996, Mr. Alexander attempted to discuss these problems with Ms. Scott. She became angry and belligerent. Mr. Alexander stood in front of his office door to prevent Ms. Scott from going out into the corridor because the students were changing classes and he felt it would not be appropriate for them to see her in that frame of mind, but she left his office anyway. Ms. Scott was immediately summoned for a meeting with Mr. Hoecherl and Mr. Alexander. During the meeting, a school police officer arrived in response to a 911 call, which Ms. Scott had made, accusing Mr. Alexander of restraining her against her will. The police officer determined that there was no basis for this charge, and Ms. Scott left the meeting in an angry and belligerent manner. Mr. Hoecherl referred this incident to the School Board's Office of Professional Standards. An administrative review was ordered, and Mr. Hoecherl was assigned to investigate the February 16 incident. On March 25, 1996, at Mr. Hoecherl's request, he and Ms. Scott met in his office. Mr. Hoecherl explained to Ms. Scott that he was trying to learn what had happened and wanted her to tell him her version of the incident. Ms. Scott became very agitated and left Mr. Hoecherl's office, slamming the door behind her. Her behavior as she left his office was very disruptive, but he nonetheless followed her to her car and asked that she return to his office to discuss the February 16 incident. Her response was belligerent and defiant, and Mr. Hoecherl told her to go home and not return to South Dade for the rest of the day. On the morning of March 26, Ms. Scott reported to work at South Dade. She was told that she had been reassigned to the Region VI administrative office and that she was not to return to the South Dade campus. In accordance with directions he received from the School Board's Office of Professional Standards, Mr. Hoecherl instructed Ms. Scott to report to the personnel director at the Region VI office. At approximately 8:00 a.m. on March 27, Ms. Scott appeared at the custodial office at South Dade. Mr. Hoecherl again told her to report to the Region VI office and provided her with written notification of her reassignment. Ms. Scott reported to the Region VI office, but, a short time later, she left and returned to South Dade. Ms. Scott was again told to leave the school grounds and informed that failure to do so would be considered gross insubordination; she refused to leave South Dade despite repeated orders from Mr. Hoecherl and the school police. Ms. Scott was belligerent and disruptive, and she was placed under arrest by the School Board police. She was escorted out of the school building in handcuffs; Mr. Hoecherl covered her shoulders with a jacket to hide the handcuffs from the students, but Ms. Scott attempted to shrug it off. In a memorandum dated March 28, 1996, to the Office of Professional Standards, Mr. Hoecherl detailed Ms. Scott's poor job performance from January 12, 1996, through March 25, 1996. A conference for the record was scheduled for March 29 at 2:00 p.m. by James Monroe, the Executive Director of the School Board's Office of Professional Standards. Ms. Scott failed to report for the conference even though she was contacted at her home by telephone shortly after 2:00 p.m. and told that they would wait for her for one hour. The conference for the record was rescheduled for April 4, 1996, and the topics to be discussed were identified in the notice as follows: "[Y]our failure to report for a conference on March 29, 1996, at 2:00 p.m., as previously directed . . .; failure to comply with site directives; unauthorized departure from the work site; attendance/performance related issues; medical fitness for continued employment and your future employment status with Dade County Public Schools." During the conference, Ms. Scott was advised that her employment status would be reviewed in light of the facts discussed at the conference, and she was directed to report to the Region VI office pending formal notification of the decision of the Superintendent of Schools and to perform all tasks and duties assigned to her. During the time she was assigned to the Region VI office, from April 1996 until September 1996, Ms. Scott disregarded instructions and directives from her supervisors, she failed to perform her job responsibilities or performed them inadequately, and she was absent from work a number of times without authorization. From September 1995 to September 1996, Ms. Scott was absent from her job without authorization for 20 days. She was absent from her job without authorization for three consecutive workdays from March 28 through April 1, August 23 through September 5, 1996. 3/ Ms. Scott was suspended by the School Board at its September 11, 1996, meeting. Mr. Alexander, Mr. Gonzalez, and Mr. Hoecherl tried for several years, through numerous informal memoranda and discussions, to help Ms. Scott bring her job performance up to an acceptable level. Ms. Scott was given several formal written notifications and warnings about the deficiencies in her job performance, and three formal conferences for the record were held to put Ms. Scott on notice of the perceived job deficiencies and of the complaints about her work and to allow her to explain the situation from her perspective. Ms. Scott did not comply with the directives for corrective action developed during the conferences for the record, and her attitude and job performance generally deteriorated from 1992 until September 1996, when she was suspended and dismissal proceedings instituted. The evidence presented by the School Board is sufficient to establish that Ms. Scott's job performance was deficient in that she failed to perform or inadequately performed her assigned job responsibilities; that on numerous occasions she refused to comply with requests and direct orders from the head custodian, from the assistant principal, and from the principal of South Dade; that she accumulated excessive unauthorized absences; and that she abandoned her position with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County issue a final order terminating Gale Scott's employment. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
Findings Of Fact At all times pertinent to the allegations treated herein, Respondent, William Wyche, held a Florida Teaching Certificate number 106113, issued on October 29, 1980, covering the area of industrial arts. Respondent applied for a Florida teaching certificate by submitting the required application form and documentation on or about October 20, 1980. At the time of submission, Respondent replied "no" to the question in Section V of the form which asks: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation. . .?" This answer was false in that: On September 20, 1979, respondent was found guilty of driving while his license was suspended, and fined $50.00; On March 20, 1980, Respondent was found guilty of obtaining property by worthless check and fined $25.00; On March 20, 1980, Respondent was found guilty of driving with a suspended license and fined $100.00; On April 2, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00; and, On April 25, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00. On that same date, in a separate case involving an identical charge, adjudication was withheld but Respondent was placed on probation for sixty days. Respondent explains the check charges on the basis that at the time they took place, all within a few weeks of each other, his bank account had been garnished and because of that garnishment, though he had ample funds in his account to honor these checks, the bank did not honor them. There were quite a few checks dishonored for this reason-so many, in fact, that he lost track of some of them and though he redeemed most, he failed to redeem these. As to the convictions for driving with a suspended license, he thought these were minor traffic offenses that did not have to be listed. Respondent was employed as an industrial arts (IA) teacher at Kirby Smith Junior High School (KSJHS) in Jacksonville, Florida during the 1981-82 school year, teaching in the metal shop. During this period, he was evaluated on a regular basis, based on observations and evaluations by other school officials carried on at various times throughout the school year. During these evaluations, such things as classroom conditions, the instructor's presentations, the preparation of lesson plans, and the use of lesson plans as guidelines for in-class instruction were considered. Lonnie W. Davenport was assistant principal for curriculum at KSJHS during this period and had to insure that teaching was taking place properly in both form and substance. To do this, he contacted his teachers daily and also relied on observations such as described above, and reports submitted to him. These reports were regarding such things as student class size, grade reports by teachers, black/white student count in the homerooms, and teachers' lesson plans which were required from each teacher weekly. While he has no formal IA training, he has a lot of experience in the area. Mr. Davenport first took serious note of the Respondent in mid- December, 1981 when he noted that Respondent had not submitted complete lesson plans. There were holes in those submitted relating to time and quality. In addition, the principal had asked him to look into reported irregularities in Respondent's classroom. His examination of Respondent's lesson plans showed that they were inadequate because they: did not conform to the form required; did not cover the subject matter sufficiently; did not follow a time sequence properly; and, were not sufficiently specific. They should have broken down the instruction into segments for skill development on a step-by-step, day-by-day basis. In short, Respondent's plans did not adequately tell what he was intending to do in his classroom. As to Respondent's teaching, Davenport's observation showed that Respondent: had no plans to show what was expected of his students; maintained the shop in a depressing state. (Here, however, it was admitted that this school was old and the shop dingy, and Respondent could not control all of that. However, Respondent's teaching aids, such as posters, which were old, faded, and torn, added to the dinginess.) allowed shop metal to lay around the shop without being placed in stock storage, creating a safety hazard; failed to safeguard and neglected one student's artwork project, and other students' projects were left out and not placed in storage for the next class period; stored a large stack of sheet metal under a work bench with cutting corners end edges protruding (also a safety hazard) allowed equipment which should have been stored to remain out; failed to have safety lines placed on the floor around individual pieces of equipment; failed to insure that soldering forges were properly shielded or securely fastened down; and, failed to post safety rules prominently in the classroom. Respondent contends that he submitted purchase orders requesting corrections be made of these deficiencies. However, with the exception of several orders for paint, some of which may have been used for the safety lines and to brighten up the area, the remainder of the purchase orders he introduced into evidence (Respondent's Composite Exhibit E), were for metal stock and other pieces of new or replacement equipment. There was no evidence of work orders for correction of any of the cited defects. Mr. Davenport's observations as to Respondent's teaching ability were that: He sat at his desk in the classroom while his students were working in the shop behind his back. As a result, students with problems had to come out of the shop to him for help rather than him being available in the shop to help; students were not required to wear safety goggles while operating power equipment nor did Respondent use them while operating the equipment; The student projects assigned or approved by Respondent were too simple and provided no challenge; The quality of the finished product turned out by Respondent's students was poor; Grading of student projects was accomplished on the basis of negotiation with the student and not on accomplishment or work quality; Once the student had completed the basic project, Respondent had no follow-up projects for them to do to use up the remainder of the school year. He, allowing them to occupy themselves with "busy work," showed to Davenport a lack of commitment to planning; Respondent was observed and overheard by Davenport to chastise a student by threatening to destroy the student's project, resulting in failure. This observation, which Respondent admitted to Davenport, is contrary to a school policy which prevents discipline from affecting an academic grade; and, In one particular class observed, Respondent came to class late. He had allowed a student to take roll, a function required of the teacher, and evidence available to Davenport, led him to believe this was a repeated- occurrence; Respondent's absence allowed students to engage in horseplay and rowdy behavior and, even when Respondent came into class, he chastised the wrong student. As to the type of instruction Respondent was observed to give, when a student would bring a project to him and ask a question, he would answer. For the most part, however, he stayed at his desk while the students worked unsupervised in the shop. He showed no initiative and did not even require students to draw plans or prepare material lists before starting work on a project. On one occasion, a student was injured in the shop. Respondent merely washed the injury, wrapped it, and sent the student back to work. Davenport, who observed this incident, told Respondent on the spot that the student should go to the office for first aid and that Respondent should file an accident report on the incident. The report was not filed by Respondent and the student went to the office at the direction of Davenport, not Respondent. This showed a complete lack of concern, according to Davenport. Davenport counseled the Respondent on the above deficiencies but observed no immediate response. He went back to Respondent's class 5-7 times subsequently for follow-up visits of from 20 minutes to an hour in duration and found little change for the better. He repeatedly offered Respondent assistance in any area to correct the shortcomings and got no response until in March, 1982, when Respondent found out he was going to get an unsatisfactory rating. He had been notified in writing, on January 8 end again on February 5, 1982, by his principal Mr. Shanklin, in addition to others, including an evaluation on January 13, 1982 by Mr. Lowell T. Hudson, supervisor of industrial arts for the school board, that his performance was deficient. These warnings could have left little doubt as to the fact his performance was below standard. Finally, on March 15, 1982, Mr. Shanklin rendered an evaluation on Respondent which showed an overall rating of unsatisfactory. Of the six areas rated in classroom management, two were satisfactory and four were unsatisfactory. Of the twenty- one areas rated in teaching effectiveness, one was satisfactory, nine were rated as needing improvement, and eleven were rated unsatisfactory. Seven of the nine areas of professional/personal characteristics were rated satisfactory, one needed improvement, and one was unsatisfactory. Even after this unsatisfactory report, the school administrative staff still tried to help Respondent. They offered him direct help themselves and, in addition, the services of county in service resource personnel to help with planning. Respondent was receptive to this verbally, but never took any steps to use them. As a result, there was no improvement in Respondent's performance but merely a maintenance of the status quo. There were some minor improvements in the condition of the shop but these were merely cosmetic and did not, in any way, relate to the quality of instruction. In Davenport's opinion, Respondent does not meet the minimum standards of competency for teachers nor can he be trained to meet these standards. He is convinced, and it is so found that Respondent's race played no part in the evaluation process. The principal at KSJHS during this period, Mr. Jack H. Shanklin, agreed with and amplified on Davenport's analysis of Respondent. His first difficulty with Respondent came in October, 1981 when the Dean of Girls wrote him a memorandum stating that Respondent had struck a student with a dowel rod. This was not the first instance of Respondent's striking students. Since Respondent was not designated as one to administer corporal punishment, she had previously warned him to send all disciplinary problems to the office. When Shanklin discussed this with Respondent, he said he did it to control the class. Shanklin did not personally evaluate Respondent until early January, 1982, after Davenport's evaluation. Prior to going to the class, he reviewed Respondent's lesson plans and found them to be sketchy. In his opinion, a substitute teacher could not have taught from them and they were "totally unacceptable." When he went into the classroom, he found the Respondent lecturing end he could not understand what Respondent was trying to get across. Respondent mumbled, was hard to understand, and used few, if any, visual aids. It was obvious to him that the students were bored, confused, and were getting nothing from the presentation. In addition, he observed the shop and found it to be dingy, dirty, and a safety hazard. Mr. Shanklin discussed these deficiencies with Respondent a few days later when he gave him the letter regarding the observation. He went into these deficiencies, and recommendations to correct them, quite thoroughly. He made suggestions as to resource people available to help and pointed out specific references to the teachers' manual. In each case, Respondent always indicated he understood and would try to comply. However, in the succeeding month leading up to the February letter, there were no signs of improvement at all nor was there any indication he had utilized the resource people. Follow-up visits to the classroom showed no change and no indication Respondent was getting anything across to the students. After the February letter was given to Respondent by Mr. Shanklin personally, they had a conference in which Shanklin discussed Respondent's deficiencies and he was told what he had to change to get a favorable evaluation. The most critical areas for improvement identified were: lesson plans safety conditions, and classroom appearance, as well as Respondent's personal untidy and nonprofessional appearance. After this discussion, Shanklin made several visits to Respondent's classroom prior to the March evaluation and did note some improvements in classroom appearance and safety, but not in lesson planning or teaching. Even after the March evaluation, up to the end of the school term, he noted no improvement. On March 29, 1982, he gave Respondent a third letter outlining areas for improvement. Respondent finished out the 1981-82 school year but because of the unsatisfactory evaluation he received, requested a transfer to a different school for the 1982-83 school year. In Shanklin's opinion, Respondent did not meet minimum standards of competency nor could he achieve them because of a lack of effort to improve. Shanklin feels Respondent does not care about the education of children and would make only superficial efforts to be trained. Race is not a factor in this evaluation. At least 50 percent of Shanklin's staff is black. He has 85 teachers on his staff and in the last three years, he has rated 13 teachers unsatisfactory. Of these, 8 or 9 were black. Therefore, of the 255 teacher evaluations he has rendered in three years, 8 or 9 unsatisfactory's were given to black teachers. Dalton D. Epting, Director of Certified Personnel for the school board, talked with Respondent about his evaluation on several occasions when Respondent was at Wolfson High School. If a teacher is on tenure status and received an unsatisfactory evaluation, he may request a transfer to a different school for a second year during which efforts are made through counseling, training, and other assistance, to help him become satisfactory. When Respondent, due to his unsatisfactory evaluation at KSJHS requested a transfer, he was assigned for the second year, to Wolfson High where, for reasons cited below, he was rated unsatisfactory for the second year in a row. Respondent was sent to Wolfson for his second year because there was no vacancy for IA teachers in the system. Even though Wolfson was also full, rather than send Respondent back to KSJHS, they sent him to Wolfson, with all its teachers, so he could have the benefit of other good teachers. Race was not a factor in this decision. It is not automatic that a teacher who receives a second consecutive unsatisfactory rating is discharged. The system looks to see if the teacher was given every assistance to improve; to ensure that everything reasonable was done by way of counseling, resource help, training, and the like, to help him. If it was and the teacher did not improve, he is discharged. Here, school officials looked at all evaluations for both years, considered the discussions held with Respondent, and the input from cadre and resource personnel, and decided that Respondent was incompetent. The decision was made, therefore, to discharge the Respondent and this action was taken. During the 1982-83 school year, after his first unsatisfactory evaluation, Respondent worked for David E. White, principal at Wolfson High School. Immediately White sat down with Respondent, along with the IA supervisor to let him know what was expected of him and what help was available to him. He observed Respondent in the classroom on several occasions and, based on these and other factors in accordance with school board rules, in an effort to let the teacher know how he or she is doing, rendered an unsatisfactory rating on Respondent on October 30, 1982. Among the examples of Respondent's incompetence which led up to this evaluation were progress reports, discipline referrals, notes, and tests prepared by Respondent, some of which went home to parents, that contained obvious spelling, grammatical, and syntax errors. At first, White became aware of concern by students and their parents about Respondent's performance. When these complaints first began, White called in the IA supervisor for the school district, Mr. Hudson, to evaluate Respondent. He began evaluating Respondent himself when the complaints continued. These complaints were to the effect, basically, that the students could not understand Respondent. (It is noted here that Respondent suffers from a slight speech impediment). He would merely read from the textbook with no teacher-student interaction. There was little lab work - mostly lecture or reading. This was not appropriate in the Graphic Arts area which consists of such skills as printing, photography, silk-screening, and the like. Consistent with the notes, reports, end referral slips prepared by Respondent, White noted a lack of grammatical correctness in his oral presentations as well. In addition, White observed that the Respondent's students were not being motivated by him and spent little time on their classroom tasks, and he also observed that Respondent's presentation was lacking in technological detail. For example, on one occasion, Respondent was discussing a box camera and failed to detail the advantages and disadvantages of this type of camera, the type of films available for it, and the merits of each. When the class period was over, White discussed the above with Respondent, suggesting how the lecture could be improved. The following day White came back to class to see how Respondent carried the discussion forward and it was as if White had not said anything. Respondent continued to omit from his lecture the substantive technological information White, as principal, felt should be taught. White concluded that Respondent was not at all familiar with the subject matter he was teaching. 1/ Respondent was also considered to be deficient in his administrative skills. He lost (or had stolen) his grade book as well as his computer worksheets twice during one 9 week period. This created seven extra hours work for the curriculum office, with 3 additional hours by Respondent, to reconstruct, his grades. The fact that Respondent had to help in this project meant someone had to cover his classes for him. It also created a lot of inquiry by parents who, on learning of the lost grade book, questioned the validity of grades given their children. In addition, Respondent's attendance registers were not turned in on time notwithstanding frequent reminders in advance of due dates. At the end of the first semester, White had a conference with Respondent about the above. Respondent began being absent due to sickness in January, 1983 and went on sick leave on 9 February, 1983 which extended through the remainder of the school year. It is important to note that Respondent's absence at this time was valid and there is no inference or insinuation to the contrary. While he was absent, on March 8, 1983, Respondent was given a notice of intent to render an unsatisfactory evaluation report which was, in fact, issued on April 15, 1983. Here it must be noted that there could have been no improvement in performance between the notice and the evaluation as Respondent was not present for duty but was on sick leave. In any event, White contends that as a result of Respondent's teaching, the school's IA program has been seriously damaged, but that has not been shown. While Respondent's classes did net prepare his students for the second year curriculum in those areas, there is no evidence that the school's program has been seriously damaged. Nonetheless, it was shown be that, as white contends, Respondent did not meet minimum county standards and could not be improved to meet them. Consequently, on August 15, 1983, the superintendent of the Duval County public schools, by certified letter, notified Respondent that because of the two years of unsatisfactory evaluations, indicating professional incompetence, he was recommending the School Board discharge Respondent from employment. Thereafter, on January 16, 1984, the Duval County School Board, by Final Order, sustained the charge of professional incompetence, and discharged Respondent as a teacher. Race was definitely not an issue in White's evaluation. In his school, at which the student body comes from the upper level socioeconomic group, and which has rated first in Area Scholastic Aptitude Test scores for the past five ears, White has no black administrators or department chairmen on his staff. One black former department chairman was promoted to vice-principal at another school. His choices for personnel are based on qualifications, not race. At the present time, 12 percent of the teachers on staff are black and over the six years White has been principal at Wolfson High, only 3 black teachers have transferred out. While at both KSJHS and Wolfson High, Respondent was encouraged to consult with Everett T. Hudson, IA supervisor for the school board, and was, in fact, evaluated by him in both settings. He evaluated Respondent first on January 14, 1982, at the request of the Principal at KSJHS end observed Respondent during his 8-9 a.m. first period class. His conclusions were: classroom and shop cleanliness were poor; it appeared that activities were winding down shop organization was poor (no clean-up schedule was posted and metal stock was laying everywhere; the students' projects were not meaningful or of a quality nature; respondent spent too much time lecturing and did not allow for sufficient shop time, and, respondent's lesson plans were not available. When seen, it was obvious Respondent had not used the curriculum guide to draft the few plans he had. When Respondent transferred to Wolfson High, the Principal there also asked Hudson to come out and evaluate Respondent on a more frequent basis. Consequently, because of this request and because of the fact that due to Respondent's previous unsatisfactory rating he was on probation, Hudson evaluated Respondent ten times, at least once in each month, between September 8, 1982 and January 5, 1983. As a result of these evaluations, it appeared to Hudson that Respondent did not know how to: plan a project; lay out equipment; identify woods and where they came from; use certain equipment. It further appeared to Hudson that Respondent's lectures were poor in that he mumbled and he didn't seem to know what he was talking about. Further, his lesson plans were poor, and he failed to keep up with an appropriate time schedule for class. As a result, Hudson ended up, himself, helping the students rather than evaluating. When these observations were made, Mr. Hudson would go over them with Respondent and give Respondent a copy. Notwithstanding he pointed out these deficiencies repeatedly, there appeared to be no improvement at all. The school system here has a remedial program for teachers to use to improve their performance. There are resource teachers to provide assistance and there are also "in service" programs for teachers. Mr. Hudson suggested Respondent take some, one of which he was teaching right at Respondent's school. As he recalls, Respondent came twice out of 15 sessions. As a result of the above, Hudson does not believe that Respondent meets minimum competency standards and could not meet them. In his opinion, Respondent: suffers from a lack of organizational ability; has lackadaisical attitude toward improving the program; would not spend the necessary time to upgrade his skills, and has a weak knowledge of the subject matter. Here again, race was not an issue in these evaluations. Hudson supervises 95 IA teachers in the Duval County school system and is the only administrator. Of these teachers, approximately 25 are black. Over 13 years, he has been called in to evaluate, like this, 5 or 6 teachers, only one of whom was black, and of this number, only 2 have been discharged. Respondent has a Bachelor of Science decree in Education and a Masters degree in Industrial Education, both from Florida A & M University. In addition, he has attended a leadership development course at Michigan State University, military classes in the same while in the army at Ft. Dix, New Jersey, and numerous workshops in Florida at his own expense. It was his hope, when he started working in Duval County, to develop some feel for the IA field in that school system As a result of his experience there, he is of the opinion that the entire IA program is underfunded. Students have to pay for the wood and metal materials they use to build a prefect. He urges that without materials and equipment, a teacher cannot teach, a point concerned by Mr. Davenport, and that was the reason he submitted the purchase orders he did at KSJHS. In that regard, it would appear that about the time Respondent was teaching at KSJHS in 1981, a report by an Inspector (Jenkins) from the school district offices, reflected that materials and equipment in Respondent's class area did not meet minimum state requirements. In addition, there was some problem regarding the excessive size of the class. This problem was immediately corrected end certification in this area was restored. He also contends that a teacher's teaching style may differ from that of his principal's and still be correct. With regard to the April 15, 1953 unsatisfactory evaluation, Respondent contends, in an attempt to contest his rating, that since he was out sick much of the month of January, 1983, and all of the time from February 9, 1983 to the end of the school year, a rating dated in mid April would cover as large a period of time when he was not there as when he was. The Teacher Tenure Act under which this system operates provides for a second full year of evaluation before discharge. Since he was sick for half the second year, he contends, his discharge was not valid. He wants to fulfill his probationary period to prove he is a worthy teacher.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore: RECOMMENDED that Respondent, William Wyche's teacher certificate issued by the State of Florida be revoked for a period of three years, with provision for reinstatement as provided for by statute. DONE and RECOMMENDED this 16th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk with the Division of Administrative Hearings this 16th day of August, 1984.
The Issue The issues in this case are whether Petitioner should discharge Respondent from her employment because of misconduct, gross insubordination, and willful neglect of duty that impaired Respondent's effectiveness as Petitioner's employee.
Findings Of Fact Petitioner is the School Board of St. Johns County, Florida. Until September 12, 1996, Petitioner employed Respondent as a non-instructional employee. Respondent was a janitorial custodian. Petitioner requested numerous employees, including Respondent and eight other custodians, to work on Saturday, August 24, 1996, at Nease High School. The purpose was to prepare the campus for the upcoming school year. Mr. Jody Hunter, the coordinator of school-based maintenance and custodial services, asked all nine custodians, including Respondent, to stop what they were doing and to immediately remove all of the empty boxes from the classrooms. The boxes needed to be outside the buildings so that they could be collected for disposal and so that furniture could be set up in each classroom. The crews in charge of collecting and disposing of the boxes and those in charge of furniture set-up were on precise schedules. The other maintenance tasks that needed to be performed by the custodians, including Respondent, could be performed at other times. All of the custodians except Respondent complied with the instructions of Mr. Hunter. Mr. Hunter repeated the instructions to Respondent several times. Respondent insisted on working in accordance with her own schedule and priorities. After a reasonable time, Mr. Hunter inspected the area for which Respondent was responsible. He found boxes in the area and saw Respondent walking down the hallway with a bag and supplies in her hand. Mr. Hunter asked Respondent why she had not complied with his instructions. She stated that she did not like to start another job before she finished the first job. Mr. Hunter repeated the need and the urgency of getting the boxes out of the area so that the other crews could stay on schedule. Respondent stated that she did not have to listen to Mr. Hunter because it was a Saturday and because he was not her supervisor. Respondent never removed the boxes in her area. Mr. Hunter had several conversations with Respondent regarding her refusal to follow his instructions. Respondent became very loud and obstreperous during at least one of those conversations. Other employees heard Respondent from different areas of the campus. Mr. Hunter conducted himself professionally during each of these conversations. During one of the conversations, Mr. Hunter requested Ms. Alice Powell, a teacher, to witness a portion of the conversation. Respondent left work before completing her assigned duties. She refused to answer questions from Mr. Hunter as to where she was going or if she would return. Respondent returned to the campus later in the day with her daughter. Respondent's daughter acted as an interpreter. Through her daughter, Respondent asked Mr. Hunter to write down everything he had said to Respondent during the day. When Mr. Hunter refused, Respondent threatened to sue Mr. Hunter for "violating her rights." Mr. Hunter asked Respondent to leave the premises. Respondent refused. Respondent stated that Mr. Hunter had never dealt with Puerto Ricans before and that they take care of their own problems. Mr. Hunter asked Respondent if she was threatening him, and Respondent said, "yes." Mr. Hunter telephoned Mr. Bill Mignon, the principal of the school. Mr. Mignon spoke to Respondent by telephone. Mr. Mignon asked Respondent to leave the campus and to discuss the matter in his office on Monday. Respondent left the campus but did not keep her appointment on Monday. Petitioner suspended Respondent with pay pending an investigation of the matter. Mr. Mignon and Mr. Clayton Wilcox, Petitioner's director of personnel, conducted an investigation into the matter. They interviewed witnesses, including Respondent, and reviewed written statements. On September 12, 1996, the Board voted to suspend Respondent without pay. Respondent now has a full-time position with another employer. Respondent was previously disciplined by Petitioner. In April, 1995, Petitioner verbally reprimanded Respondent for misusing time cards by leaving work and having another employee punch Respondent's time card at a later time. In May, 1996, Petitioner gave Respondent a written reprimand for taking excessive lunch breaks. In May, 1996, Petitioner issued a memorandum to Respondent for failing to comply with requirements for excused absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of gross insubordination and willful neglect of duty and terminating Respondent's employment. RECOMMENDED this 13th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997. COPIES FURNISHED: Dr. Hugh Balboni, Superintendent St. Johns County School Board 40 Orange Street St. Augustine, Florida 32084 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Michael Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dennis K. Bayer, Esquire Attorney at Law 306 South Oceanshore Boulevard (A1A) Post Office Box 1505 Flagler Beach, Florida 32136 Anna I. Oquendo, pro se 21 Madeore Street St. Augustine, Florida 32084
