The Issue The issue is whether Petitioner has just cause to terminate Respondent’s employment for gross insubordination, deficient performance, and conduct unbecoming a school board employee.
Findings Of Fact Petitioner employed Respondent continuously from December 6, 1993, through her termination on January 12, 2000. During her entire term of employment, Respondent was employed as a Secretary II. Respondent has a bachelor of science degree in marketing and business from Liberty University in Virginia. Prior to her employment with Petitioner, Respondent had worked as a secretary, including at Florida National Bank and, while living out-of- state, First Pennsylvania Bank. Respondent described her work with Petitioner as enjoyable. She testified that it involved word processing, answering the telephones, and filing. Respondent’s initial assignment was to provide clerical support for exceptional student education. This work required, among other things, considerable speaking on the telephone to coordinate the work of district-office workers with the various schools that they served and typing of school psychological reports concerning students. Repeatedly, Respondent demonstrated problems with accurate and timely typing of school psychological reports, declined to take school-related telephone calls from the switchboard, and reported to work late. When her supervisor conducted an informal conference, Respondent explained that she was often late to work due to a conflicting school schedule of her child, so the supervisor agreed to start Respondent’s workday one-half hour later. When Respondent’s tardiness did not improve, the supervisor had a formal conference for the record (CFR). At the CFR, which took place on February 27, 1995, the supervisor warned Respondent that she must report to work on time and do her job while at work. During this period, Respondent would be late 10-15 times within a 20-day pay period. These occasions of tardiness were substantial, not a couple of minutes, but 30-40 minutes. Even after the supervisor postponed Respondent’s starting time, Respondent continued to report to work late. During this period, Respondent resisted answering the phone and typing. The supervisor had one primary typist, whose typing speed was considerably better than the typing speed of the other secretaries, so the supervisor directed her to do nothing but type school psychological reports. The supervisor directed the other three or four secretaries, of whom Respondent was one, to type school psychological reports when time permitted and to answer the telephone to assist district-office field workers, school personnel, and parents. Respondent resisted this dual assignment. The supervisor could not recall having another CFR for any other employees during the period that she supervised Respondent. Shortly after the February 27 CFR, Respondent’s supervisor transferred to a different area and did not have further contact with Respondent. Respondent’s new supervisor also had problems with Respondent’s job performance. On June 23, 1998, the supervisor completed a written evaluation of Respondent’s job performance and rated her unsatisfactory in knowledge (specifically, ability to communicate effectively) and interpersonal skills (specifically, positive relationship with the public and harmonious relationship with the staff). The overall performance rating was unsatisfactory with the following note: “Additional opportunities will be provided to Annet to improve her interpersonal skills that interfere with the day-to-day operations of the office. If not successful, stronger measures will be taken.” Protesting the inaccuracy of the evaluation, Respondent refused to sign the form. The new supervisor had observed Respondent’s communications with parents on the telephone and staff in the office. Respondent was often rude with parents, so the supervisor talked to her about how to answer the telephone, giving her suggestions for improvement. Respondent’s relationship with her coworkers suffered from her disruptive behaviors, such as loud singing and talking. At one point, Respondent’s relationship with one coworker had so deteriorated that it became necessary for her supervisor, in September 1998, to direct Respondent to change desks. However, when directed to change desks, Respondent refused, forcing her supervisor to reduce the directive to writing. About four months later, to give Respondent a fresh start elsewhere, her supervisor facilitated Respondent’s transfer to a school that served as a center for exceptional student education. The supervisor did not fill the vacancy in the district office created by the transfer, nor did she fill an existing vacancy at the school; essentially, the supervisor merely transferred the physical location of Respondent’s job position. By memorandum dated January 12, 1999, Respondent’s supervisor advised Respondent of the transfer and her new duties, which again included typing school psychological reports. The memorandum also informed Respondent that her workday hours would remain 8:00 a.m. to 4:30 p.m. with lunch from 12:30 p.m. to 1:30 p.m. and breaks starting at 10:15 a.m. and 3:00 p.m. About one week after Respondent reported to the school for her new assignment, the principal gave her a written schedule showing Respondent’s hours as 8:00 a.m. to 4:30 p.m. with one hour for lunch and 15-minute breaks starting at 10:00 a.m. and 2:30 p.m. The schedule also assigned tasks to be performed during different times of the day. These tasks included typing, filing, telephone work, and assisting parents, staff, and students. These tasks included one block of two hours and fifteen minutes devoted to performing district-office tasks, but while remaining at the school to which Respondent had just been reassigned. Respondent was dissatisfied with her new assignment, preferring to work at the district office where she had been assigned. Respondent’s new supervisor, the school principal, noticed immediately that Respondent had trouble interacting appropriately with staff and parents, typing school psychological reports accurately, and answering the telephone when it rang. The principal corrected Respondent’s style of answering the telephone, informing her that she was to identify the school and herself, offer assistance, and offer to take a message if the person being called is not available. Instead, the principal heard Respondent repeatedly deal with callers brusquely, such as by stating, “They’re not in the office. Call back later.” While at the switchboard, Respondent repeatedly sent callers to the wrong extension. On April 15, 1999, the principal had a CFR with Respondent. The next day, the principal gave Respondent a written memorandum reflecting their discussions. The memorandum identifies nine specific areas of Respondent’s job performance, to which the principal expressed serious concerns. For each of these areas, the memorandum supplies a detailed list of behaviors and actions to do and not to do. For example, the form directs Respondent to speak with others pleasantly, politely, and professionally--not argumentatively, sarcastically, or caustically. Another item directs Respondent to spell check and proof read all typed materials--not submit uncorrected typed materials. Another item directs Respondent to remain engaged in work while at work--not doodle, read magazines, or make personal telephone calls while at work. The memorandum documents informal conversations on February 4 and March 17 between the principal and Respondent in which the principal had already counseled Respondent about her rudeness and idleness, including one conversation in which the principal noted, “You had to be told in excruciating detail how to perform the most mundane of tasks.” The memorandum notes that Respondent had characterized the principal’s assessment of her work as unfair, and the principal had warned her that a failure to improve her job performance and her relationships with staff and parents would jeopardize her future employment with Petitioner. The memorandum notes that the CFR of the preceding day had ended with the comment from Respondent: “If you need to let off steam you need to find another way to do it. This is ridiculous.” During this period of time, Respondent had informed the principal that it was not Respondent’s job to proofread the material that she typed and, thus, she would not spell check these documents. On at least one occasion, Respondent mistyped a form, confusing the specific learning disability and severely emotionally disturbed classifications of exceptional students. During one month, every single item that Respondent typed had to be returned to her for corrections--at least once and sometimes more than once. Respondent resisted the principal’s criticisms by telling the principal to "get a life" and that the principal did not know what she was doing. In front of one parent, Respondent said that the mother should be doing a better job with the child. Many of Respondent’s statements of these types to supervisors, coworkers, and parents were made in the presence of students. The principal found Respondent repeatedly not working or reading a magazine when she had work to do. In response, Respondent would assert that she had not been told to do anything, and the principal each time reminded her that there was always filing to be done. At least four times over two months, the principal found Respondent on a personal call while parents or students were waiting for her to take care of their needs. One time, when the principal asked her if she could break off the call and take care of the people waiting, Respondent merely shrugged her shoulders and rolled her eyes, not responding whether the call was an emergency and leaving the principal to deal with the waiting parent. One morning, the principal walked into the office and observed the registrar working with the parent and the telephone start to ring. The registrar asked Respondent to answer the phone, but she did not. After the third ring, the principal answered the phone. Another time, the registrar was busy at the counter with a parent when she was summoned to the telephone. After a few moments, the registrar put the caller on hold and asked Respondent to remove an item from the mail because the mail room attendant was approaching. Refusing to comply with the request, Respondent told the registrar, “I didn’t put it in there. I’m not taking it out.” A distinct act of insubordination took place after the April 15 CFR and April 16 memorandum. On this morning, the principal entered the office and found the staff extremely busy, such as obtaining materials for teachers. Respondent was issuing admission slips for tardy arrivals. The telephone was ringing, and staff was juggling their other activities as best they could while still answering the phone. However, Respondent, although seated next to the switchboard, was not answering the phone at all. When the principal asked her to answer it, Respondent loudly replied, “Do you think I can do two things at once?” The whole office became quiet, as a teacher answered the telephone. The principal directed Respondent to start answering the phone, but four more calls came in, and Respondent refused to answer them. More memoranda followed. On May 25, 1999, the principal provided Respondent a detailed memorandum with an evaluation. The memorandum covers the same items already discussed. The evaluation is unsatisfactory in every major category. A memorandum dated May 27, 1999, accompanying a CFR of the same date, discusses, among other things, the telephone incident described in the preceding paragraph and reemphasizes that Respondent is the first person responsible for answering the telephone. Another CFR took place on June 9 with another memorandum dated the next day at which the same issues are discussed. The principal provided Respondent with a detailed list of recorded deficiencies, prescriptive means by which to correct them, recommended resources, and deadlines. The principal extended the deadlines for performing fairly undemanding tasks, but Respondent declined to perform them. At the start of the 1999-2000 school year, Respondent routinely came to work late. She was late every day in September, rarely arriving less than 30 minutes late and once over one hour late. On Monday, October 4, 1999, the principal provided Respondent with a memorandum documenting the days and extent of her tardy arrivals. The memorandum documents a discussion between the principal and Respondent on the preceding Friday, October 1. The memorandum notes that Respondent claimed to have changed her schedule, on her own authority, and the principal had informed her that the principal, not Respondent, had the sole authority to set her schedule. The memorandum documents that the principal had suggested that Respondent follow established procedure to change her starting time, but, until and unless the principal changed the time, Respondent was to report to work at 8:00 a.m., as she was always required to have done, on the following Monday, October 4. The memorandum notes that Respondent responded that she had to take her daughter to school and would not be reporting to work at 8:00 a.m. The memorandum documents that, on the morning of Monday, October 4, Respondent called in at 8:40 a.m. saying she had had car trouble and would be late; she arrived at 9:15 a.m. On October 5, the principal conducted another CFR and issued another memorandum, dated October 5. Respondent did not report to the CFR when directed, and the principal had to have her assistant principal get Respondent. After initially declining to attend, Respondent appeared at the CFR, 15 minutes late. When the principal asked Respondent to take a seat, she replied that she would prefer to stand, and did so. Disputing the date set for the CFR, Respondent stated that she would not remain. At the conference, the principal read Respondent the following definition of gross insubordination or willful neglect of duties: “a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.” Respondent unsuccessfully attempted to change her schedule to postpone her starting time to 8:30 a.m. Respondent was late to work every day from September to January. Each day, she would leave work at 3:40 p.m. to pick up her daughter and return to work late, usually at 4:05 or 4:10 p.m. However, when the principal offered to shorten her day by one-half hour, so as to allow her to leave work one-half hour earlier, Respondent refused to shorten her lunch. On October 6, 1999, the principal issued Respondent a reprimand for failing to finish her prescriptive activities within the extended deadlines. Giving her until October 26 to complete them, the reprimand warns: “Failure to comply with this directive will constitute gross insubordination and may lead to further disciplinary action.” On October 7, the principal sent her assistant principal to summon Respondent to the principal’s office to provide Respondent with the above-described documents. Respondent refused to come. The principal approached Respondent and asked her to come to the principal’s office, but Respondent replied that she had no intention of reporting to the principal’s office ever again and the principal was harassing her. The next day, Respondent did not report to work. When Respondent failed to meet the October 26 deadline, the principal issued a memorandum, dated October 28, citing her for gross insubordination. This memorandum effectively marked the end of the principal’s involvement with Respondent. Overall, Respondent’s repeated insubordination and carelessness had undermined the morale among staff at the school. The principal found it hard to assign work to other secretaries, who rightly felt that they were carrying Respondent’s load. The atmosphere in the office became strained. The principal could not possibly have done anything more to help Respondent do her work. It was not an issue of ability, but of a lack of effort and refusal to make the effort. At one point, Respondent told the principal that she found it demeaning to be told to file and answer the telephone given her high-level skills. Attempts by the district office to conduct CFRs were met by Respondent’s defiance: she did not attend any of the three scheduled meetings. By letter dated January 13, 2000, Petitioner suspended Respondent, effective January 12, 2000, and initiated this proceeding to terminate Respondent’s employment. Respondent is subject to the Contract between Petitioner and the United Teachers of Dade (Contract). Contract Section 3.D provides that Petitioner may terminate a covered, noninstructional employee, such as Respondent, for “just cause.” Section 3.D defines “just cause” as including: “misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.” Petitioner has proved that Respondent is guilty of gross insubordination.
Recommendation It is RECOMMENDED that The School Board of Miami-Dade County, Florida enter a final order terminating Respondent’s employment. DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2000. COPIES FURNISHED: Roger C. Cuevas, Superintendent The School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue Room 912 Miami, Florida 33132-1308 Timothy A. Pease The School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Joseph F. Lopez 250 Bird Road, Suite 302 Coral Gables, Florida 33146
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent, Linda Ratcliffe, has been a satisfactory employee in the City's Library Department since approximately December, 1985. In the summer of 1993, she was a Library Assistant II in the Beach branch of the Library. At the end of 1992, the City Library was converting to a new computerized circulation record-keeping system. The Library Director sent all Library employees a memorandum dated December 8, 1992, on the subject of "Staff Overdues and Fines." It placed the employees on notice of Library plans to more aggressively pursue patrons to collect fines and, if appropriate, replacement cost for overdue materials and that, to succeed in the new policy, the Library had to insure that Library employees did not have overdue materials, were not granted privileges not accorded to members of the general public and paid fines and replacement costs when due. The employees were specifically advised that, if materials were overdue, fines had to be paid and that infractions of the new policies would be discussed during performance evaluation reviews. In July, 1993, the Library Director had the Respondent's circulation record checked routinely in preparation for her September performance evaluation. On or about July 20, 1993, it was discovered that the Respondent had 13 books overdue, two long-overdue. Yet, there was no record of any fines due on them. Apparently, someone on the circulation staff had entered the system and "zeroed" approximately $21.40 in fines, assuming the books ultimately were returned. If the books were not returned because they were lost or damaged, approximately $125 would be due as the replacement cost of the items. Since it was determined that no other staff member had "zeroed" the fines, it was presumed that the Respondent had done it. In addition, the circulation record-keeping system showed that, as of July 12, 1993, the two long-overdue books would have caused the computerized circulation record-keeping system to automatically alert the circulation staff that library privileges on the Respondent's account were suspended because of the two long-overdue books. Yet, the system showed that the Respondent had checked out additional items after that date. Assuming that the system was operative, the additional items could not have been checked out to the Respondent's account unless someone on the library staff had bypassed the automatic stop. Again, since it was determined that no other staff member had bypassed the automatic stop for the Respondent, it was presumed that the Respondent herself had done it. Finally, the system showed that the Respondent had eight videotapes checked out on her account. The maximum number allowed to be checked out at one time is three. Allowing for the return of up to three videotapes when checking out three more, the system tolerates up to six checked out to any one account before automatically alerting the circulation staff that no additional videotapes are allowed to be checked out to that account. Again assuming that the system was operative, the eight videotapes could not have been checked out to the Respondent's account unless someone on the library staff had bypassed the automatic stop. Again, since it was determined that no other staff member had bypassed the automatic stop for the Respondent, it was presumed that the Respondent herself had done it. When the Respondent was confronted with the charges against her on July 23, 1993, the City already had assessed the evidence against the Respondent and had decided that dismissal was the appropriate penalty in light of the evidence. In response to the charges, the Respondent admitted to "zeroing" the fines. Her explanation was that some or all of the overdue books were damaged by water or lost in the confusion and aftermath of the March 12-13, 1993, "no name storm of the century." She had made her supervisor aware that books checked out to her account had been damaged or lost in the storm, and she was told to "take care of it" according to proper procedures. The Respondent was not expressly told to "zero" the fines for overdue books. But she claimed that she had "zeroed" the fines because she had applied to the Federal Emergency Management Agency (FEMA) for reimbursement for the damaged or lost books and did not want to enter the losses in the circulation record-keeping system until she had the FEMA reimbursement money to pay for them. Instead, she showed the books as still checked out to her but without any fines showing. She intended to pay the replacement costs of the lost and damaged books when she got the money from FEMA. Official library policy for handling damaged and lost books is set out in the Library Circulation Manual. It states: The full, current replacement price is charged for the book. . . . Damage that can't be repaired is replacement cost. (Emphasis in the original.) The policy notes that library books are more expensive than other books because of special library bindings and costs of ordering, labeling, barcoding, covering, cataloging, shelving, and storage and that replacement cost often exceeds the original cost due to appreciation in value and inflation. Under the policy, standard replacement cost for an adult (hardback) book is $26 and for a children's book is $13. The policy also provides specifically for natural catastrophes such as the March 12-13, 1993, storm: In limited cases, in line with "the library with a heart" philosophy, the library may waive costs; for example, if a house burned down with the books in it. In most cases, the patron may recover the costs through their insurance. Refer the case to a supervisor, if you think this rule may apply. (Emphasis in the original.) The evidence was that the Respondent "referred" her own case to her supervisor. There was some evidence that the Respondent was expected to do more than just tell her supervisor that she had lost or damaged books as a result of the March 12-13, 1993, storm. The supervisor told her to "take care of it." There was evidence that the Respondent's supervisor expected the Respondent to make entries into the computerized circulation record-keeping system showing the books as having been lost or damaged. The Respondent's view was that this was a tedious and unnecessary record-keeping process and that she had more pressing and important tasks to accomplish with her work time. There also was evidence that, beyond making the appropriate entries in the system entries showing the books as having been lost or damaged, the supervisor herself was unsure how to "take care of" the matter. If the Respondent had asked her supervisor for advice directly, the supervisor would have had to refer the case on to her supervisor, or to the Library's Circulation Supervisor. Yet she neither volunteered to do so, nor instructed the Respondent to do so. Meanwhile, the Respondent thought she was acting properly under the catastrophe loss policy. The Respondent also admitted to bypassing the stop for long-overdue books. She assumed that the "library with a heart" would not revoke a patron's privileges while waiting for insurance benefits to pay for the losses. Since she thought she was acting properly under the catastrophe loss policy, she thought she should be allowed to continue to use her library card. The catastrophe loss policy had nothing to do with the videotapes. The Respondent claimed that the eighth videotape was checked out at the Library's Countryside Branch on a back-up system that did not have an automatic stop feature. She claimed that her mother was returning enough videotapes for her to allow her to exceed six videotapes, thereby justifying her bypassing the stop to check out the seventh videotape. But it is found that the Respondent had no reasonable basis for believing that her mother was in the process of or was about to return some of the videotapes. In fact, they were still checked approximately a week after the Respondent checked out the additional videotapes. Besides, circulation staff would bypass a stop for a library patron only if staff witnessed the videotapes being returned at the time of checking out additional tapes. It is found that the Respondent generally was lax in following the videotape limit and bypassed the automatic stop in order to check out more videotapes than other patrons would have been able to check out. Especially in view of the Library's policy to more aggressively pursue patrons to collect fines and, if appropriate, replacement cost for overdue materials, the Respondent's failure to follow library policies regarding videotapes, if made known to the public, would tend to embarrass the City or bring its service into public disrepute. It was not proven that the Respondent's conduct constituted insubordination, but it was a serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public. The Respondent was enjoying privileges not allowed other Library staff or members of the public, and the extra videotapes the Respondent checked out against policy were not available for others to check out.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order reducing the Respondent's dismissal to a 20-day suspension and demotion to Library Assistant I, or a similar position, as one becomes available. RECOMMENDED this 1st day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5614 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. (As found, not all of the charges were proven.) Accepted and incorporated to the extent not subordinate or unnecessary. (As found, not all of her notes were accurate. Specifically, the Respondent did report the damaged or lost books.) Accepted but subordinate and unnecessary. Last sentence, rejected as not proven. (Also, conclusion of law.) The rest is accepted and incorporated to the extent not subordinate or unnecessary. Subordinate and unnecessary. Rejected as not proven and contrary to facts found that she "basically" admitted "the serious charges." She admitted many of the facts but denied any improper intent. See 11., above. In part accepted and subordinate to facts found; in part, rejected as not proven and contrary to facts found. (His testimony substantiated parts but not all of the charges.) Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-2. Accepted and incorporated to the extent not subordinate or unnecessary. 3. Accepted but subordinate and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P. O. Box 4748 Clearwater, Florida 34618-4748 Linda Ratcliffe 663 Bay Esplanade Clearwater, Florida 34630-1503 Michael Laursen Secretary City of Clearwater Civil Service Board P. O. Box 4748 Clearwater, Florida 34618-4748
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on May 31, 2012.
Findings Of Fact For more than ten years, Petitioner has worked as a pharmacist. On April 18, 2011, Respondent extended to Petitioner an offer of employment to work as a "licensed staff pharmacist" at store 1220 in Orlando, Florida. Petitioner accepted Respondent's offer. Petitioner, as a licensed staff pharmacist, was paid $56.46 per hour. In her position as licensed staff pharmacist, Petitioner was supervised by Doug Fellers. Placing a face with a name In July 2011, Petitioner desired promotion to a full- time salaried position at Respondent's store 3538 in Viera, Florida. According to Petitioner, her immediate supervisor Doug Fellers, recommended to his supervisor Kelly Altman, regional pharmacy director, that Petitioner be promoted. Petitioner contends that Kelly Altman initially supported her bid for promotion but withdrew his support upon meeting Petitioner and seeing that she is African-American. Petitioner believes that Mr. Altman harbored feelings of discriminatory animus towards her because when they initially met, Mr. Altman told Petitioner that he had heard a lot about her, that it was good to finally "put a face with a name," and looked at her in a manner that she described as being with "quiet disgust." The evidence does not establish that Mr. Altman harbored any discriminatory animus towards Petitioner. Contrary to Petitioner's contention, Mr. Altman was very supportive of Petitioner as evidenced by the fact that on July 25, 2011, he approved the recommendation for Petitioner's promotion and took no action against Petitioner to thwart or otherwise interfere with her promotion. In August 2011, Petitioner began working in a full-time salaried position as a licensed staff pharmacist at Respondent's store 3538 in Viera, Florida. In her new position, Petitioner earned an annual base salary of $119,516.80. Store 3538 and "Buckwheat" Petitioner alleges that while working at store 3538 she was subjected to racially insensitive remarks. Specifically, Petitioner alleges that her co-worker, Lauren Harmon, often in response to questions from Petitioner, would respond by saying "o'tay."2/ Petitioner took offense to Ms. Harmon's "speaking to [her] like '[B]uckwheat.'" It is undisputed that Ms. Harmon, who by all accounts is Caucasian, was employed at store 3538 prior to Petitioner's arrival. According to several witnesses, Ms. Harmon, well in advance of Petitioner's transfer to the store, would often say "o'tay" when responding to statements made by co-workers and would do so regardless of the race of the co-worker. Although Petitioner was offended by Ms. Harmon's use of "o'tay," other employees did not find "o'tay" to be objectionable and merely thought that Ms. Harmon was "speaking in baby talk." Nevertheless, Petitioner subjectively believed Ms. Harmon's remarks to be highly offensive and racially motivated. Petitioner formally complained to her superiors about Ms. Harmon and her use of "o'tay." An investigation was conducted and once it was determined that Ms. Harmon had in fact said "o'tay," she was instructed by management to immediately cease and desist saying "o'tay" because Petitioner found the pseudo-word offensive. Ms. Harmon complied with the cease and desist directive, except for one isolated instance when she inadvertently repeated the offensive language. Respondent, upon learning of Petitioner's concerns about the pejorative nature of the pseudo-word "o'tay," took prompt and appropriate remedial action to address Petitioner's concerns. Pharmacist-in-charge Michelle Graziani was the pharmacy manager when Petitioner arrived at store 3538 in Viera, Florida. During this same period, Ms. Graziani also served as the store's pharmacist- in-charge (PIC).3/ The PIC is responsible for ensuring the security of the pharmacy and compliance with all laws and related rules. In late December 2011, Ms. Graziani ceased working at store 3538, thereby leaving the store in need of a PIC. Around the time of Ms. Graziani's departure, Doug Fellers approached Petitioner and asked if she would be willing to temporarily serve as the PIC for store 3538. As part of this same conversation, Mr. Fellers advised Petitioner that if she desired, she could also apply for the head pharmacy position previously occupied by Ms. Graziani. Petitioner accepted Mr. Feller's offer and started working as the PIC for store 3538 in late December 2011. It is typically the case that the pharmacy manager for a particular store will also serve as the PIC. In instances where a pharmacy is temporarily without a manager, a PIC will be designated to serve on an interim basis. Respondent, through its personnel system, assigns classification codes to positions occupied by employees of the company. The personnel classification system does not however contain a classification code for PIC. When an employee serves as PIC on a temporary basis, Respondent classifies these employees as "Assistant Pharmacy Managers" and "Assistant Pharmacists."4/ Petitioner asserts that when she was asked by Doug Fellers to serve as temporary PIC for store 3538, he also offered her promotion to the permanent position of assistant pharmacy manager. Doug Fellers denies that Petitioner was either made or offered the position of permanent assistant pharmacy manager for store 3538. On January 13, 2012, Petitioner signed an employment offer from Respondent wherein she accepted the position of Assistant Pharmacy Manager at store 3538. Petitioner's annual salary was increased to $121,596.80. The document signed by Petitioner is silent on the question of whether the appointment to assistant pharmacy manager was temporary or permanent. However, one of the supporting documents used to generate the assistant pharmacy manager offer sheet signed by Petitioner states that "[t]his is just an offer to go from Salaried Staff to PIC at 3538 until we finalize the RxMgr position. She is just receiving the $1.00 more increase and job code to Asst MGR[.]"5/ The credible evidence establishes that Petitioner was temporarily placed in the position of assistant pharmacy manager/PIC at store 3538 until such time as a new store pharmacy manager/PIC could be hired by Respondent. Respondent eventually hired a store pharmacy manager following Ms. Graziani's departure and upon doing so, Petitioner was relieved of the responsibility of serving as PIC for store 3538. Although Petitioner was relieved of her duties as PIC, her salary continued at the same level and her official job title, to this day, remains assistant pharmacist.6/ Respondent removed Petitioner from the PIC position for non-discriminatory, legitimate business reasons. Vacant pharmacy store manager's position During the period when Petitioner served as PIC for store 3538, Respondent accepted applications for the vacant pharmacy manager's position. It is undisputed that Petitioner did not apply for the manager's position. Petitioner claims that she "was harassed to the point where [she] couldn't apply for the position." The evidence does not support Petitioner's allegation. Petitioner cites numerous incidents that, in her mind, establish impermissible discrimination. One instance of alleged discrimination occurred when Doug Fellers visited Petitioner's store for the purpose of having her sign the contract that temporarily promoted her to the position of assistant pharmacy manager. Petitioner alleges that several employees complained to Doug Fellers that Petitioner was bragging about being the favored candidate for the vacant pharmacy manager's position. According to Petitioner, when Doug Fellers became aware of Petitioner's alleged boasting, he admonished Petitioner by telling her that she was not guaranteed the position of pharmacy manager. Petitioner responded to Doug Fellers by denying that she had made such statements regarding the vacant position. Petitioner internalized the admonishment from Doug Fellers as an indication that he would not favorably consider her for the vacant position. Doug Fellers credibly testified, however, that he harbored no such ill will towards Petitioner and would have favorably considered her application for pharmacy manager had she applied. Another instance of alleged discrimination occurred when Petitioner was instructed by her supervisor to retrieve from a waste bin information that may have contained sensitive patient information. Petitioner believes that she was instructed to retrieve the patient information from the waste bin because of her race. Respondent testified that there were problems at store 3538 with patient identifying information being improperly disposed of by individuals in the pharmacy. As the PIC, Petitioner was responsible for ensuring that patient identification information was properly protected. Respondent instructed Petitioner to personally review the contents of the waste bin to ensure that private patient information was not contained therein. This directive to Petitioner was in furtherance of Respondent's legitimate business interests associated with protecting patient privacy. While Petitioner took offense at being charged with this task, there is no evidence indicating that Respondent's directive to Petitioner to filter the contents of the waste bin was motivated by racial animus. Petitioner cites as additional evidence of impermissible discrimination, the fact that during the time she served as PIC, Respondent placed her under excessive scrutiny when it relocated the pharmacy's hazardous waste bin to a location where the bin was constantly monitored by video surveillance. Respondent explained that its risk management protocols require that the hazardous waste bin be continuously monitored by video surveillance and that the bin at Petitioner's store was relocated in order to bring it into compliance with the established protocol. Petitioner offered no credible evidence demonstrating that Respondent's asserted reason is pre-textual or that Respondent applied the policy in such a way as to single out Petitioner. Petitioner also claims that the contents of the hazardous waste bin were given extra scrutiny by Respondent while she served as PIC. However, credible testimony was offered explaining that the level of scrutiny given by Respondent to the hazardous waste bin during Petitioner's tenure as PIC was the same as it was prior to Petitioner's serving as PIC. Even if the level of scrutiny of the contents of the hazardous waste bin was intensified during Petitioner's service as PIC, Petitioner offered no credible evidence establishing that the alleged heightened scrutiny resulted from impermissible discriminatory animus. Finally, Petitioner alleges that Respondent harassed her by manipulating the tracking data that it uses to monitor the productivity of its pharmacists. Petitioner's theory as to this issue seems to be that Respondent manipulated Petitioner's productivity numbers in an attempt to dissuade her from applying for the vacant pharmacy manager's position previously referenced. In response to this allegation, Respondent offered credible evidence that the data in question may be used for myriad reasons, but it is not used in and of itself as a basis for taking disciplinary or other forms of employment action against its pharmacists. While there may have been anomalies with some of Petitioner's productivity data, there is no credible evidence establishing that the data was manipulated by Respondent for impermissible discriminatory reasons. Alleged leg disability Petitioner suffers from venous insufficiency that causes her legs to "jerk, hurt, burn, and swell." Petitioner claims that Respondent discriminated against her "because of [her] leg disability." In early April 2012, Petitioner, after having worked "3 days straight at Walmart," suffered, while at home, a leg cramp that caused her to fall and injure her arm. Petitioner missed two weeks of work as a consequence of the injury to her arm. During her period of convalescence, Michael Judd contacted Petitioner and inquired about the cause of her injury and the status of her recovery. In response to Mr. Judd's inquiry, Petitioner explained that she had a leg cramp that caused her to fall and injure herself. Petitioner, neither before, nor during Mr. Judd's inquiry, disclosed that she suffers from venous insufficiency. When Petitioner returned to work on or about April 15, 2012, Mr. Judd again inquired about the circumstances surrounding Petitioner's arm injury and the status of her recovery. The following day, April 16, 2012, Petitioner was instructed by Respondent to complete a number of outstanding training modules and finalize paperwork for insurance-related payroll deductions. Petitioner believes that the enumerated actions collectively establish that she was harassed because of her venous insufficiency. Contrary to Petitioner's assertion, the above- described events do not establish a reasonably objective hostile or abusive work environment. Retaliation Petitioner contends that Respondent retaliated against her after she complained about Lauren Harmon. Petitioner claims that Respondent elevated its scrutiny of the hazardous materials (hazmat) bin following Petitioner's work shifts, that Respondent launched a bogus investigation against her for an alleged HIPPA violation, and that two of Respondent's store managers were whispering with a third party but stopped doing so once they realized that Petitioner was present. Respondent credibly explained that it moved the hazmat bin in view of the surveillance camera as required by its loss prevention/risk management policy. While it is true that Respondent investigated Petitioner for an alleged HIPPA violation, the investigation completely exonerated Petitioner of any wrongdoing and no adverse employment action resulted to Petitioner as a consequence of the investigation. Finally, Petitioner, by her own admission, has absolutely no idea what the store managers were whispering about when they became aware of Petitioner's presence. Petitioner has failed to offer any credible evidence to support her claim of retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Walmart Stores East, did not commit an unlawful employment practice as alleged by Petitioner, Dr. Sharon E. McIntosh, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 4th day of September, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 September, 2013.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Elizabeth B. Clark was employed as a Librarian II with the Information Services Division of the Career Education Center in May of 1976. The Center contains several divisions, has approximately ninety employees and provides support services to the Vocational Division of the State Department of Education. It is funded with federal dollars obtained via grants and contracts with the Department of Education, pursuant to a contract between the state and federal government. The individual coordinators of the Center's various divisions submit a recommended budget to the Center's director, the director prepares an overall budget for the Center and that budget is then submitted to the Department of Education. The Center's budget year runs from July 1st through June 30th. In the 1976-77 budget year and prior thereto, the Center's director had wide discretion as to where and in which categories or divisions within the Center monies would be allocated. The budget for the Information Services Division for the 1976-77 year was approximately $250,000.00, of which approximately $185,000.00 went for salaries for the Division's twenty-seven employees. It was anticipated by supervisory personnel at the Center that there would be a growth in the services provided by the Information Services Division in the 1977-78 budget year. As a consequence, the initial budget proposal recommended by the coordinator of the Division, Ms. Winkler, was approximately $350,000.00. In the early months of 1977, a reorganization of the Information Services Division was contemplated due to the anticipated expansion of services to be provided. Petitioner felt that her new responsibilities in the area of technical services were lesser in scope and that the anticipated reorganization plan was, in effect, a demotion. She complained to her superiors and filed several grievance procedures against the reorganization attempts. In fact, the reorganization was never implemented because of a cutback in funds allocable to the Division. In the latter part of May, 1977, Director Lathrop was advised that funds previously available for the Center's activities had been severely curtailed due to amendments to the federal law. Unlike prior allocations, the federal amendments designated the categories to which the funds must be applied, and funds for informational services were cut the most. As a result of the cutback, the Information Services Division coordinator submitted a second budget proposal recommendation of $124,000.00, with approximately $91,000.00 of that going for salaries. This almost one-half reduction in budget necessitated a reduction in the services to be supplied and a corresponding reduction in staff. Coordinator Winkler thus recommended the elimination of twelve or thirteen positions, nine of which were filled by career service employees. These nine positions included three clerk-typists, one clerk, one library technical assistant, three Librarian I's and one Librarian II, the latter of which was occupied by petitioner. At that time, there existed five librarian positions - four Librarian I's and one Librarian II. In making the determination as to which positions were to be eliminated, Ms. Winkler considered the reduced emphasis in the technical services area thus allowing a reduction in the clerical staff. Having a master's degree in library science, Ms. Winkler assumed that she could pick up some of the library work. After determining to eliminate four of the five librarian positions, she could not justify keeping the Librarian II position, since there would then be no other librarians to supervise. Director Lathrop reviewed and concurred with Ms. Winkler's recommendation concerning the elimination of the twelve or thirteen positions. In making this decision, Dr. Lathrop considered the Vocational Division's priorities among the services to be offered and the reduced need for supervisory personnel in light of the reduction in staff. At that time, the basic duties of the Librarian II, Ms. Clark's position, were technical services and the supervision of other librarians and clerical personnel. Having made the decision to eliminate these positions, the Center properly notified the Personnel Relations Department of Florida State. This Department, after receiving the required approval from the Board of Regents for elimination of the positions, conducted a review of retention points held by the incumbents to determine which employees would be laid off. Thereafter, Ms. Clark was timely notified that she would be laid off effective July 15, 1977, from her position of Librarian II wit the Career Education Center. The official notice stated, in part: "This action in no way reflects upon your performance or ability, but is solely related to budgetary limitations in the grant for which you worked." The Personnel Department notified the State Division of Personnel of the layoff so that her name could be placed on the official layoff register. This Department also sought to find Ms. Clark another position within the competitive area. At the time of the layoff decision, the budget for the Information Services Division was $124,000.00. In addition to this amount, the Division had a grant in the amount of $11,500.00 and they were working on a grant in the amount of $14,750.00. Another grant of $32,000.00 occurred later in the budget year. These additional monies were to be applied to specific projects and services. Since the layoff, the Division has added seven or eight positions, including a faculty position equivalent to a career service Librarian II. The existence of this latter position was not predicted at the time of the layoff. The additional positions have been funded out of the additional grants for specific services and by not filling positions left vacant under the $124,000.00 budget. Ms. Clark did not find other employment until mid-October, 1977. She was not notified of the faculty position opening until three days after she had obtained her new employment. She presently has no desire to return to employment with the Information Services Division, but feels entitled to back pay for the three months in which she was without employment.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the appeal of petitioner be dismissed. Respectfully submitted and entered this 31st day of March, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304 Betty Steffens, Esquire 212 Westcott Hall Florida State University Tallahassee, Florida 32306 Luther C. Smith, Esquire 121 1/2 South Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Ms. Lee's teaching certificate should be revoked because she has been guilty of dishonesty in maintaining student grades and has engaged in a course of conduct which seriously reduced her effectiveness as an employee of the School Board of St. Lucie County, Florida.
Findings Of Fact Cynthia Lee holds a Florida teaching certificate, and has been a teacher for 11 years in the public schools of St. Lucie County. She earned a bachelor's degree in special education for grades kindergarten through 12 and in elementary education, grades 1 through 6. She also has received a Master's degree in administration and supervision from Nova University. During her last year of teaching, Ms. Lee had been transferred to Lakewood Park Elementary School where Allen Edwards was principal and Linda Francine Applebee was an Assistant Principal. She taught a self-contained third grade class. For reasons which were not satisfactorily explained, the school administrators made meticulous notes of observations of Ms. Lee's performance at school. For example, on August 25, 1986, it was recorded that Ms. Lee had an open Bible on a shelf in her classroom, and had assembled her students at 3:00 to wait for the school bus rather than releasing them from the classroom. On August 27, it was recorded that she spoke with students in the suspension room; on August 28, it was recorded that Ms. Lee had not made marks in student folders to indicate their attendance on the first day of class. On September 3, it was documented that she had assembled her students for the reading laboratory at 10:01 a.m, as opposed to 10:05 a.m., and on October 9, it was recorded that Ms. Lee had a cup of something to drink after lunch. Eventually these surveillance notes gave way to more serious confrontations with the administration. In November of 1987, Ms. Lee received a reprimand for returning to her classroom after she had left school one morning because of an eye problem. Appropriate arrangements were made to have a substitute in her classroom for about an hour, because she thought that her visit at the doctor's office would be brief. The assistant principal, Ms. Applebee, then determined to retain the substitute to stay with Ms. Lee's class for the rest of the day, "in the interest of continuity." Ms. Applebee left a message with the doctor's secretary that Ms. Lee should return home after she was finished with her appointment. Ms. Lee did not understand why she had been given permission to leave and return, but then received a message not to return to school while at the doctor's office. She had left items at the school which she would not ordinarily leave overnight. When Ms. Lee returned to school, Ms. Applebee was quite upset, and Ms. Lee thereafter received a reprimand stating that "your return to the classroom after seeing the doctor was a flagrant disregard for the authority of the school administration." This response by the administration to Ms. Lee's return to the campus was petty, and indicative of the administration's general hostility to Ms. Lee. During the school year, Mr. Edwards decided that it would be appropriate to have another teacher assist Ms. Lee with her lesson plans, to help her develop more specific learning objectives for her class. At first, the chairperson of the third grade teachers at the school, Altamese Hilick, assisted Ms. Lee with lesson plans in reading. Later, the district coordinators for mathematics, Alice Hosty, and for language arts, Marsha Cully, came to Ms. Lee's classroom, observed her teaching, and made suggestions for her to improve her classroom management and curriculum. Third grade students at Lakewood Park Elementary School used the mathematics text published by D.C. Heath & Company; pre- and post-tests are coordinated with teaching materials used at the school. Students were given the pre-test before a unit of instruction was given, instructed, and then the post- test was administered. Similar pre- and post-tests were used in the reading and language arts program at the school, based on materials and a text published by Harcourt, Brace, Jovanovich, Inc. The pre- and post-test results were charted on group profile sheets for the entire class, in individual folders for the students and in the students' cumulative records. After the tests were given, Ms. Lee corrected the students' papers by placing Xs on wrong answers and check marks on correct answers. The tests were then placed on a shelf in the back of her classroom in a place that would have been open to anyone who entered the classroom. Teachers or administrators ordinarily were on campus before Ms. Lee arrived in the morning and others would remain after Ms. Lee had left in the afternoon. The door to her classroom was unlocked. Despite the administration's general unfriendliness, Ms. Lee's contention that any alteration of the tests was done to discredit her by someone with access to her classroom, but not by herself, is rejected. Marsha Cully wrote a memorandum to Mr. Edwards on January 29, 1987, explaining that when she had visited Ms. Lee's class, she randomly checked the group profile sheets for the class. The profiles showed that all the students in Ms. Lee's top reading group had scored 100 per cent on each skill and subtest. Ms. Cully's review of the graded tests themselves revealed that Ms. Lee's students had not performed that well. Ms. Hosty submitted a similar memorandum about Ms. Lee's mathematics skills checklist and pre- and post-tests to Mr. Edwards on February 9, 1987, noting that on at least one test paper, an "X" indicating a wrong answer had been whited-out, an answer changed, and a student given a perfect score. Ms. Lee adamantly maintains that she never erased Xs on graded tests to replace them with check marks, changed answers for students by erasing incorrect answers, replaced them with correct answers, or whited-out markings on student test papers. The School Board retained Antonio M. Laurito, a forensic document examiner for the regional crime laboratory at Indian River Community College, to review the tests, Ms. Lee's group profile sheets, individual student records and known samples of her handwriting. Mr. Laurito eschewed reliance on exemplars knowingly prepared for comparison to questioned documents. He concluded that she had changed several of the students' test grades and their scores on school records. Ms. Lillian Newman was retained by Ms. Lee, who reviewed handwriting exemplars which she saw Ms. Lee prepare, with knowledge that the exemplars would be used for comparison with the questioned documents in this case. Ms. Newman also reviewed a large number of Ms. Lee's cancelled checks as additional exemplars. Ms. Newman found the evidence inconclusive on whether the questioned documents were prepared by Ms. Lee. Having carefully considered the testimony of both handwriting experts and the exhibits which they relied on, the opinions expressed by Mr. Laurito are more persuasive, and convincing. Ms. Lee altered the students' work on their tests, and recorded and maintained false test results in student records for the class and for individual students which overstated their achievement. That conduct has seriously reduced her effectiveness as a teacher.
Recommendation It is RECOMMENDED that the teaching certificate of Cynthia June Lee be revoked by the Education Practices Commission for a period of three years, after which she may reapply for a new certificate as provided in Section 231.28(4)(b), Florida Statutes. DONE AND ENTERED this 12th day of June, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th of June, 1989. APPENDIX TO RECOMMENDED ORDER 88-4623 Rulings on Proposed Findings of Fact by the Commissioner of Education Covered in finding of fact 1. Rejected as unnecessary. Covered in finding of fact 4. To the extent necessary, covered in finding of fact 4. Covered in finding of fact 7. Covered in finding of fact 7. Covered in finding of fact 7. Covered in findings of fact 8 and 10. Covered in finding of fact 9. Rejected as subordinate to finding of fact 10. Covered in finding of fact 10. Rulings on Proposed Findings of Facts by Ms. Lee Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 1. To the extent necessary, covered in finding of fact 1. Subordinate to finding of fact 5. Subordinate to finding of fact 5. Covered in finding of fact 5. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 6. Rejected because Ms. Lee's testimony has not been accepted. Covered in finding of fact 6. Implicit in finding of fact 6. Covered in finding of fact 6. Rejected as unnecessary. Covered in finding of fact 6. To the extent necessary, covered in finding of fact 6. To the extent necessary, covered in finding of fact 6. To the extent necessary, covered in finding of fact 6. Covered in finding of fact 6. Rejected as inconsistent with my view of the evidence. Rejected as unnecessary. Rejected as inconsistent with my view of the evidence. Rejected as inconsistent with my view of the evidence. Rejected as inconsistent with my view of the evidence. Rejected as unnecessary. Rejected as subordinate to finding of fact 10. Rejected as unnecessary. These changes were performed by Ms. Lee. 29. Covered in finding of fact 7. Covered in finding of fact 8. Rejected as unnecessary, the exemplars Mr. Larito used were done by Ms. Lee, and his reason for not asking her to execute an exemplar is persuasive. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 9. 35. Covered in finding of fact 9. Covered in finding of fact 9. Rejected as unnecessary. Rejected as unnecessary and subordinate to finding of fact 10. 39.-49. Rejected as unnecessary and subordinate to finding of fact 10. The testimony of Mr. Larito was accepted and more persuasive. Rejected as unnecessary. Rejected as unnecessary. 52.-60. Rejected as unnecessary. 61.-67. Covered in finding of fact 3. 68.-75. Covered in finding of fact 2. COPIES FURNISHED: Martin Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, FL 32399 Karen Barr Wilde, Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, FL 32399 Criag R. Wilson, Esquire Suite 302 215 Fifth Street West Palm Beach, FL 33401 Rev. Cynthia Lee 3201 Boston Avenue Fort Pierce, FL 34950 Leslie Holland, Esquire FEA/United 208 West Pensacola Street Tallahassee, FL 32301 Sydney H. McKenzie, General Counsel Department of Education The Capitol PL-08 Tallahassee, FL 32399-0400 =================================================================
The Issue Whether the Respondent, Benny O. Tjia, should be suspended from his position with the University for one semester and be required to reimburse the University for one working day?
Findings Of Fact Benny O. Tjia has been employed by the University since July 1, 1975. Dr. Tjia has been employed as an Extension Floriculture Specialist in the Department of Ornamental Horticulture of the Institute of Food and Agricultural Sciences (hereinafter referred to as "IFAS"), of the University. IFAS, including the Department of Ornamental Horticulture, provides teaching, research and extension services at the University. Dr. Tjia is a tenured Associate Professor at the University with an appointment in the Department of Ornamental Horticulture. Dr. Tjia's duties include the planning, developing and implementation of off-campus educational programs and the dissemination of research information to plant growers and the public in the area of floriculture. Dr. Tjia is the only Extension Floriculture Specialist working throughout the State of Florida. The chairman of the Department of Ornamental Horticulture, and Dr. Tjia's immediate supervisor, is Dr. Thomas Sheehan. Dr. Sheehan's immediate supervisor is Dr. John T. Woeste, IFAS Dean for Extension. On July 22, 1987, Dr. Tjia requested approval of leave with pay for the period October 12-27, 1987. The purpose of this leave was to participate as a speaker at a conference scheduled for October 15-17, 1987, and to participate in a post-conference seminar on October 22, 1987, at Massey University, New Zealand. Dr. Sheehan, in a memorandum dated August 11, 1987, approved Dr. Tjia's request for leave with pay, but only for the period of October 13-24, 1987. Dr. Sheehan advised Dr. Tjia that any additional time off would have to be taken as annual leave. Dr. Sheehan further advised Dr. Tjia that he should inform Dr. Sheehan in advance of any future negotiations for proposed out-of-state or out- of-country travel in order to avoid any embarrassment to Dr. Tjia or the University if leave is not approved. In late August, 1987, Dr. Tjia discussed with an Australian businessman the possibility of presenting a series of seminars in Australia from October 26, 1987, through November 10, 1987. Dr. Tjia decided that be would request approval of leave without pay to attend the seminars in Australia. He realized, however, that he did not have sufficient annual leave to cover the period of time he planned to spend in Australia. Therefore, Dr. Tjia requested the payment of 2,000.00 as compensation for his participation in the Australian seminars, which he believed would reimburse him for the leave without pay he would have to take from the University. During the first week of September, 1987, the Australian businessman and Dr. Tjia agreed that Dr. Tjia would participate in the seminars. Despite Dr. Sheehan's instructions to discuss out-of-county travel with him before accepting, Dr. Tjia did not inform Dr. Sheehan of, or obtain approval for, the Australian seminars before or after agreeing to participate. On Friday October 9, 1987, Dr. Tjia left a request for annual leave for the period October 26, 1987, through November 2, 1987, with Dr. Sheehan's secretary Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he intended to visit relatives. On October 9, 1987, Dr. Tjia also left a request for leave without pay for the period November 3-13, 1987. Again, Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he was requesting the leave for "personal reasons." Dr. Tjia did not discuss or attempt to discuss his leave requests of October 9, 1987, with Dr. Sheehan. When Dr. Sheehan received Dr. Tjia' leave requests on October 9, 1987, he attempted to contract Dr. Tjia to determine more information about Dr. Tjia's leave plans. Dr. Sheehan was unable to contact Dr. Tjia, however. After being informed that Dr. Tjia was running errands and would not return to this office on October 9, 1987, Dr. Sheehan wrote a memorandum to Dr. Tjia granting his request for annual leave on October 26, 1987, through November 2, 1987, and denying his request for leave without pay. A copy of this memorandum was left on Dr. Tjia's desk and in his University mail box and the original was mailed to Dr. Tjia's residence. Dr. Sheehan did not attempt to call Dr. Tjia. Dr. Tjia left the University on October 9, 1987. He left Gainesville, Florida, on Saturday October 10, 1987. Dr. Tjia never informed Dr. Sheehan that he intended on leaving Gainesville on October 10, 1987, instead of October 13, 1987, the first day of his approved leave. Dr. Tjia did not return to the University until November 16, 1987. Dr. Tjia was absent from the University without approval on October 12, 1987, and from November 3, 1987, through November 15, 1987. Dr. Tjia did not submit his request for approval of his proposed absence without pay until the last minute and did not wait until he determined whether his absence had been approved because he did not believe that his request would be approved. Dr. Tjia did not report to work on Monday, October 12, 1987. Dr. Tjia did not receive approval for his absence on October 12, 1987. October 12, 1987, was Columbus Day. Although Columbus Day is a Federal holiday, it is not a holiday for University personnel. Although Dr. Tjia was told by the department's administrative secretary that Columbus Day was a day, Dr. Tjia should have known that Columbus Day had not been a holiday for University personnel ever since his employment by the University in 1975. Additionally, Dr. Tjia was provided with a list of holidays in a memorandum which did not list Columbus Day as an authorized holiday. Dr. Tjia's testimony that he believed Columbus Day was a holiday is inconsistent with the fact that he requested approval of leave on July 22, 1987, for October 12, 1987. On or about October 19, 1987, Dr. Sheehan realized that Dr. Tjia had not receive the memorandum disapproving Dr. Tjia's request for leave without pay before his departure on October 10, 1987. Therefore, Dr. Sheehan telephoned Dr. Tjia's host in New Zealand an left a message requesting that Dr. Tjia call him. On October 21, 1987, Dr. Tjia telephoned Dr. Sheehan. Dr. Sheehan read his October 9, 1987, memorandum denying Dr. Tjia's request for leave without pay to Dr. Tjia over the telephone. Dr. Tjia was informed that he must return to the University on November 3, 1987 and that his failure to do so would constitute grounds for disciplinary action, including dismissal. On October 29, 1987, Dr. Sheehan received a letter dated October 23, 1987, from Dr. Tjia. In this letter Dr. Tjia indicated that he would not return to the University on November 3, 1987, as instructed by Dr. Sheehan. Dr. Tjia indicated that he would not return because he believed that his cancellation of his commitments would cause embarrassment to himself and the University. On October 30, 1987, Dr. Sheehan sent Dr. Tjia a mailgram, in care of Dr. Tjia's Australian host. Dr. Sheehan informed Dr. Tjia in the mailgram that his failure to report to the University a directed would constitute insubordination, neglect of his responsibilities to the University and a violation of the University's rules and regulations. Dr. Sheehan also called the spouse of Dr. Tjia's Australian host twice and asked her to ask Dr. Tjia to call him. Dr. Tjia received the information contained in Dr. Sheehan's mailgram of October 30, 1987, and Dr. Sheehan's request to call. Dr. Tjia did not call Dr. Sheehan, however, because he knew what Dr. Sheehan was trying to tell him. Dr. Tjia returned to the University on November 16, 1987. Dr. Tjia knew that he would be disciplined for failing to return to the University on November 3, 1987. Dr. Tjia did not visit relatives during the period of his annual leave as he indicated he planned to do in his request for annual leave. On November 19, 1987, Dr. Sheehan delivered a letter to Dr. Tjia from Dr. Woeste dated November 16, 1987. In this letter Dr. Tjia was informed that the University intended to suspend him without pay for the Spring Semester of 1988 (January 4 - May 5, 1988). Dr. Tjia was also informed that he would be required to reimburse the University for his salary for October 12, 1987. Dr. Tjia was informed that these actions were being taken because of his absence from the University on October 12, 1987, and during the period of November 3-13, 1987, without approval. Dr. Tjia was also informed that his actions constituted insubordination and neglect of his responsibilities to the University. Finally, Dr. Tjia was informed that he had the right to respond to the letter in writing or he could request a meeting within ten days of receipt of the letter. Dr. Tjia did not respond to the letter. By letter dated December 9, 1987, Dr. Woeste informed Dr. Tjia that the University had decided to take the actions outlined in the letter of November 16, 1987. Dr. Tjia was advised that he had the right to request a hearing pursuant to Section 120.57, Florida Statutes. Dr. Tjia requested a hearing pursuant to Section 120.57(1), Florida Statutes. The proposed action of the University was held in abeyance pending conclusion of the hearing. During the period of Dr. Tjia's absence without authorization from November 3, 1987, through November 13, 1987, Dr. Tjia's duties and responsibilities as an employee of the University were not carried out by Dr. Tjia. As a full-time faculty member, Dr. Tjia was required to be present at the University to preform day-to-day responsibilities unless his absence was approved by the University. Dr. Tjia did not perform these duties. Dr. Tjia received the University Faculty Handbook in January of 1984 and in the Fall of 1987. At page 24 of the 1987 Handbook it is provided: A leave of absence without pay may be granted by the President when it is determined that the leave of absence is an important benefit to the faculty member and the University. Pursuant to this provision, faculty members are required to provide sufficient information to demonstrate the benefit to the University and the faculty member of any leave without pay requested by a faculty member. IFAS Internal Management Memorandum Number 6C1-6.30-1-11, which Dr. Tjia received, requires that University faculty members submit requests for leave without pay well in advance of the period of leave. Dr. Tjia did not comply with the portion of the Handbook quoted, supra, by providing the University with sufficient information in his request for leave without pay of October 9, 1987, or otherwise, which demonstrated any benefit to the University. Dr. Tjia also did not comply with IFAS Internal Management Memorandum Number 6C1-6.30-1-11. Instead, Dr. Tjia waited until the day of his departure from the University and the day before his departure from Gainesville before submitting his request for leave without pay. Dr. Tjia intentionally waited until October 9, 1987, to request leave without pay because he was afraid it would be denied. No other employee of the Department of Ornamental Horticulture has requested leave without pay. Leave without pay has not been approved by the University for faculty members who desire to engage in the type of activities Dr. Tjia engaged in while he was absent from the University without approval. Leave without pay has only been granted for short periods of time when an employee has been inadvertently unable to return to the University as planned. Leave without pay has not been granted under circumstances similar to those involved in this case. Dr. Tjia, as a University faculty member, is charged with knowledge of the rules of the University and the Board of Regents. Dr. Tjia was aware, or should have been aware of the pertinent rules an regulations concerning leave and disciplinary matters. He also knew that he was in violation of those rules when he failed to return to the University on November 3, 1987, as directed by Dr. Sheehan. Dr. Tjia also knew that suspension was one of the penalties that could be imposed for neglect of duties or for insubordination. The University has suspended faculty members for misconduct. The University has not suspended any faculty member under circumstances similar to this case but no faculty member has failed to return to the University when instructed to do so other than Dr. Tjia. Dr. Tjia's failure to return to the University at the end of his annual leave on November 3, 1987, could have been treated by the University as a voluntary resignation pursuant to Rule 6C1-7.029(11), Florida Administrative Code. The University chose the lesser penalty of suspension to give Dr. Tjia an opportunity to remain with the University. The University chose suspension as the penalty in order to impress upon Dr. Tjia and other employees the seriousness of Dr. Tjia's offense, especially in light of his prior leave- related disciplinary problems. Dr. Tjia has been reprimanded and suspended by the University in the past for leave-related violations at the University. On August 30, 1984, Dr. Tjia received a written reprimand for absence from the University without approval. On September 27, 1985, Dr. Tjia was suspended without pay for ten days for being absent from the University without approval and for misrepresentations to University officials.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the University issue a Final Order requiring Dr. Tjia reimburse the University within thirty days of the date of the Final Order for his absence from the University on October 12, 1987, and suspending Dr. Tjia from his position with the University without pay for one semester. DONE and ENTERED this 13th day of December, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5611 The University has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The University's Proposed Finding of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2 4-6. 3 7-8. 4 9-11. 5 12-13 and 17. 6 12-14. 7 12-13 and 31-33. 8 15. 9 16-17 and 19. 10 20-21. 11 22. 12 23-25. 13 26, 28 and 36. 14 27. 15 26 and 28. 16 28. 17 29. 18 36 and 39. 19 40. 20 41. 21 30. 22 34-35. 23 37-38. COPIES FURNISHED: Marshall M. Criser, Jr. President University of Florida 226 Tigert Hall Gainesville, Florida 32611 Isis Carbajal de Garcia Assistant General Counsel Office of the General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32011 Harry F. Chiles Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1501 Tallahassee, Florida 32399-1000 Rodney W. Smith, Esquire Post Office Box 625 Alachua, Florida 32015
The Issue Whether there is just cause to terminate the employment of Respondent, Kimberly Rosario (Respondent), as an employee with the Hernando County School Board (Petitioner or School Board).
Findings Of Fact The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools, grades K through 12, in Hernando County, Florida, and for otherwise providing public education to school- aged children in the county. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.1/ Rick Markford is the principal at J.D. Floyd K-8 (J.D. Floyd), a school in the Petitioner’s school district. As principal, he has ultimate supervisory authority over all staff members at the school, including custodians. In December 2013, Mr. Markford hired Respondent to serve as a Custodian 1 to work the night shift at J.D. Floyd. Shortly after starting her employment, Respondent’s excessive absenteeism rose to a level where she was taking impermissible leave without pay. As a result, Mr. Markford contacted the School Board’s human resources department for guidance on how to proceed. The School Board has enacted Policy 6.37 to provide the grounds for termination for all educational support and non- certified instructional personnel in its school district. Under Policy 6.37, Group III offenses warrant termination for a first- time violation. Respondent was specifically charged with violating Policy 6.37 Group III offenses “(5) Excessive absenteeism or excessive tardiness” and “(8) Absence from duty without authority, including refusal to report to duty at any time as directed.” Although the Petitioner can proceed directly to termination for a first-time Group III offense, it utilizes a five-step progressive discipline process for excessive absenteeism and absence from duty without authority. The first step is a coaching session with the employee. If the issue continues, the second step is a corrective action plan. The third step is a formal conference with an employee conference report placed in the employee’s file. Step four is a letter of reprimand. And the fifth step is a referral to Human Resources for further action, up to and including termination. In accordance with School Board policy, because of Respondent’s excessive absences, Mr. Markford initiated the five-step process described above. Step 1 occurred on March 7, 2014, when Mr. Markford held a coaching session with Respondent to discuss her absences without pay. She was specifically warned that any further unpaid absences would result in a second meeting and a corrective action plan. On April 17, 2014, Mr. Markford met with Respondent to address her excessive absenteeism and issue a corrective action plan in accordance with Step 2. As part of the corrective action plan, Respondent was informed that all future absences for the 2013-14 school year would require a doctor’s note and she would need to directly contact Mr. Markford. Despite the coaching, Respondent’s absences without pay continued, requiring Mr. Markford to initiate Step 3 in a June 23, 2014, meeting with Respondent. The employee conference report reflects that Respondent was absent without pay from May 29, 2014, through June 16, 2014. Petitioner’s fiscal year runs from July 1 to June 30, each year. Although Respondent had no entitlement to continued employment beyond June 30, 2014, Mr. Markford decided to reappoint her for the 2014-15 school year to give her a second chance. Because it was a new school year, any further issues with absenteeism would start at Step 1 of the five-step process rather than continuing directly to Step 4. On July 14, 2014, shortly after the start of the new school year, Mr. Markford had to meet with Respondent to initiate Step 1 in the process due to her taking leave without pay on July 2, 3, and 9, 2014. In the corresponding coaching- session note, Respondent was issued a corrective action plan. Respondent’s impermissible absences continued. On July 23, 2014, Mr. Markford met with Respondent to discuss a corrective action plan related to her continued excessive absenteeism, including her absence on July 16, 2014. That same day, Mr. Markford met with Respondent for an Employee Conference Report due to her continued absences without pay, including her absence on July 17, 2014. As reflected in the Employee Conference Report, Respondent was again informed that being in attendance every day was important. Respondent was directed to contact Mr. Markford directly to notify him of any future absences and that she must provide a doctor’s note for such absences. Despite the coaching, Respondent continued to be absent without pay and failed to comply with the corrective action plan. As a result, Mr. Markford issued her a Letter of Reprimand on September 14, 2014. Mr. Markford again explained to Respondent that “[p]unctual and regular attendance is an essential function of [her] job.” In the Letter of Reprimand, which Respondent signed, Respondent was specifically informed that “any further incidents of absenteeism will be considered willful absenteeism and [that Mr. Markford] will recommend that [her] employment with the [School Board] be terminated.” Following the reprimand, Mr. Markford informed the School Board’s human resources office of the issues with Respondent’s excessive absences and identified the disciplinary procedures he had followed. It was only after Respondent had exhibited a clear pattern of absenteeism and had been specifically warned that her continued actions would lead to a recommendation for termination that she filed a complaint against a co-worker alleging harassment. Specifically, on September 26, 2014, Respondent alleged that Christopher Griesbeck, night Custodian 1 at J.D. Floyd, said her “days are numbered here and laughed.” The complaint also referenced an April 2014 incident where Mr. Griesbeck, who was allegedly upset that Respondent was appointed to a day shift instead of him, took her to classrooms she was responsible for and pointed out deficiencies. There was no allegation that the alleged harassment was sexual in nature. Mr. Markford conducted an investigation into the harassment allegations by interviewing Respondent; Vincent Juliano, a Custodian 2 at J.D. Floyd; Mr. Griesbeck; and several Custodian 1s at J.D. Floyd. After completing the investigation, Mr. Markford determined that Respondent’s “complaint of working in a hostile environment is unfounded.” The investigation revealed that, as a result of Respondent’s high absenteeism, there was a degree of resentment and frustration among some of the custodial staff. Mr. Markford took steps to address the issue and developed a plan to limit the interaction between Respondent and Mr. Griesbeck going forward. Mr. Markford met with Respondent to inform her of his findings. On October 17, 2014, Respondent suffered an injury at work when she mis-stepped and twisted her knee, aggravating a pre-existing injury. A workers’ compensation injury report was completed on October 20, 2014, at Mr. Markford’s insistence and Respondent thereafter received treatment. The next day, October 21, 2014, Respondent was cleared to return to work with restrictions for her left knee. Consistent with the restrictions, as well as the restrictions she had over the next couple of months, J.D. Floyd provided her with light-duty work. On December 15, 2014, Respondent’s treating physician cleared her to return to work from her workers’ compensation injury with no restrictions. But Respondent was absent without authority on December 15, 17, 18, 19, 22, and 23, 2014. The Petitioner’s school district had a vacation break from December 24, 2014, through January 4, 2015. After returning from the break, Respondent’s unauthorized absenteeism continued. On January 6, 2015, Respondent’s treating physician cleared her to return to work on January 12, 2015, again with no restrictions. Despite this, Respondent’s high absenteeism and failure to follow the corrective action plan continued. On January 28, 2015, Mr. Markford held a meeting with Respondent because she was absent on January 12, 13, 14, 16, 20, 21, 26, and 27, 2015, without providing a doctor’s note. Mr. Markford explained that he considered Respondent’s actions to be insubordination and the matter would be referred to Human Resources. Respondent’s absences continued. At the time of those continued absences, Respondent would send text messages to Mr. Markford explaining she was not coming to work, and Mr. Markford would respond by informing her that she did not have any leave time and she was required to come to work. She did not comply with the directions. On February 2, 2015, Petitioner’s Director of Human Resources, Dr. Sarah Meaker, wrote a memorandum to the Petitioner’s Equity, Policy, Insurance and Compliance Administrator, Heather Martin, recommending that disciplinary action be imposed against Respondent based on Respondent’s continual absence from work without a doctor’s note. On February 12, 2015, Mr. Markford met with Respondent regarding her continued failure to come to work and non- compliance with the corrective action plan. This was the first workday in February that Respondent showed up to work. Respondent refused to sign any documentation and left work early without authority. On February 13, 2015, Ms. Martin informed Respondent that a pre-determination meeting would be scheduled regarding Respondent’s excessive absenteeism and absenteeism without leave in violation of School Board Policy 6.37 Group III (5) and (8). Petitioner had difficulty trying to contact Respondent in an effort to move forward with the disciplinary process. In reply to a text message from Mr. Markford informing her to contact Ms. Martin, Respondent responded: “They have my number they can use it.” In preparation for the predetermination meeting, Ms. Martin had a calendar created for the 2014-15 school year which showed the number of days and partial days that Respondent was absent. Specifically, for July 2014, Respondent missed five full days and one partial day; for August 2014, she missed four full days and three partial days; for September 2014, she missed seven full days and one partial day; for October 2014, she missed four full days and three partial days; for November 2014, she missed six full days and three partial days; for December 2014, she missed nine full days; for January 2015, she missed 12 full days and five partial days; and for February 2015, through the 18th of that month, she missed 11 full days and one partial day out of the 12 possible work days. The predetermination meeting was held on February 18, 2015. Minutes were kept for the meeting and thereafter transcribed. At the predetermination hearing, Respondent admitted that she was no longer on workers’ compensation because the doctor cleared her as maximum medical improvement (MMI). Respondent offered no valid justification for her excessive absenteeism and absenteeism without authority. Following the meeting, Ms. Martin recommended to the Superintendent that Respondent be terminated due to her excessive absenteeism and absence without authority. On February 19, 2015, Petitioner’s Superintendent of schools, Dr. Lori Romano, charged Respondent with violating School Board Policy 6.37 Group III (5) and (8) based on Respondent “being excessively absent and absent without authority.” Dr. Romano explained there was probable cause for discipline and that she would recommend Respondent’s termination. After Respondent indicated she wished to appeal the recommendation, the matter was transferred to DOAH and an administrative hearing was scheduled. Respondent did not attend the hearing. Respondent did not give advance notice that she would not attend the hearing and she did not explain or provide a reason for her absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent’s employment with the School Board. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
The Issue Whether the Respondent discriminated against the Petitioner on the basis of his race or sex when it did not hire him for a position at Respondent's library contrary to the Human Rights Act of 1977.
Findings Of Fact The Petitioner, a black male, was by Respondent hired in a temporary, part-time position from February 16, 1990, until September 30, 1990. The Petitioner worker 20 hours per week, and his duties were to enter data on library books into a computer utilizing cataloging software programs. In addition, he was required to maintain computer backup data, type or call in book orders, reshelve books, and perform general building maintenance as necessary. The Petitioner's employment with the Jefferson County Public Library was funded through a State aid to libraries grant. A new position, Technical Specialist, was created beginning in the new fiscal year which started in October of 1990. The Petitioner filed an application for this position. The Petitioner was advised of this new job position at a staff meeting and a notice of the opening of the new position was posted on the library bulletin boards. The Petitioner alleges that Cheryl Turner, the Library Administrator, predetermined that she would hire a white female, Cynthia Anglin, for the position of Technical Specialist; that he was required to perform maintenance duties; and that he was not hired for the new position because he was a black male. The Respondent called Cheryl Turner who testified regarding the Petitioner's job performance and the matters which she considered prior to hiring Cynthia Anglin. Concerning the Petitioner's job performance, Petitioner was late for work; came to work obviously "hung over;" did not input an adequate number of records into the computer; and was unable to perform general library duties assigned to him. The new job position, Technical Specialist, involved original cataloging of books and performing other library oriented duties. These included shelving books, handling the circulation desk, answering reference questions, and filing cards. Cynthia Anglin had previously been employed by the Jefferson County Library, and had shown excellent job skills and abilities while in that position. Subsequently, Cynthia Anglin was employed by the Leon County Library where she obtained additional skills and experience. Another job position which came open in October of 1990, was that of Associate Librarian, a position which required a Masters Degree in library and information studies. The Petitioner did not apply for this position and did not possess the skills or training to qualify for it. The Petitioner was unemployed from October 1, 1990, until his incarceration in June of 1991. During that period of time, he received $356.27 of unemployment benefits paid to him by the Jefferson County Commission. The Petitioner raised several additional issues which he alleged indicated racial bias on the part of the Respondent. These included no written job performance evaluation, performance of maintenance duties around the library, and not being sent to job enhancing courses. There was no requirement for written evaluation of the temporary position held by the Petitioner. All members of the small library staff were required to perform some maintenance activities as part of their assigned duties. No money was contained within the grant under which the Petitioner was hired to provide additional training or education. None of these allegations indicated racial or sexual bias.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the petition of Kelvin Groover. DONE AND ENTERED this 26 day of February, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26 day of February, 1992. APPENDIX The Respondent filed a Proposed Recommended Order which contained proposed findings which were read and considered. The following states which of those findings were adopted and which were rejected and why: Paragraphs 1-3 Adopted. Paragraphs 4-5 Summarized in Paragraph 10. Paragraph 6 Irrelevant. Paragraphs 7 Summarized in Paragraph 10. Paragraph 8 Irrelevant. Paragraph 9 Adopted. Paragraph 10 Irrelevant. Paragraph 11 Summarized in Paragraph 10. Paragraph 12 Irrelevant. Paragraphs 13-14 Adopted. COPIES FURNISHED: Kelvin Groover, pro se DC #569040, "L" Dorm Brevard Correctional Institution Post Office Box 340 Sharpes, Florida 32959-0340 T. Buckingham Bird, Esquire Post Office Box 247 Monticello, Florida 32344 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that Petitioner did not meet his burden of demonstrating that the tenure decision reviewed herein was unlawfully reached. Respectfully submitted and entered this 28th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: President Cecil Mackey Office of the President University of South Florida Tampa, Florida 33620 David A. Maney, Esquire Gordon and Maney, P.A. Suite 2919, First Financial Tower Tampa, Florida 33602 D. Frank Winkles, Esquire Shackleford, Farrior, Stallings Evans First Financial Tower Post Office Box 3324 Tampa, Florida 33601
