The Issue The issue for determination is whether Respondent's employment with Petitioner, as a teacher, should be terminated for misconduct in office and incompetency.
Findings Of Fact At all times material hereto, the Miami-Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times material hereto, Addie West (Respondent) was employed as a teacher by Petitioner. She held a continuing contract of employment and was assigned to West Homestead Elementary School (West Homestead). Respondent is a member of the bargaining unit represented by the United Teachers of Dade. 2/ Respondent was employed by Respondent since the 1981-82 school year. She was a teacher at West Homestead since the 1982-83 school year. During the 1994-95 school year, Respondent received an unsatisfactory rating in classroom management and assessment techniques, as a result of an observation performed on February 17, 1995. Respondent was placed on prescription to improve her performance. A Conference-for-the-Record (CFR) was held with Respondent on November 29, 1995, regarding her unprofessional behavior, i.e., profanity and derogatory language in the presence of other teachers, adults, and children. The principal of West Homestead and Respondent's union representative, among others, attended the CFR. At the CFR, Respondent was verbally warned of her responsibility to conduct herself professionally and further advised that she would receive a written reprimand. On December 1, 1995, Respondent received the written reprimand. Respondent was warned that it was her responsibility to conduct herself professionally and directed to immediately cease and desist loud and vociferous profanity in the presence of other teachers, adults, and children. She was further warned that continued unethical behavior would result in the taking of stronger disciplinary action. On December 15, 1995, a CFR was held with Respondent to discuss her prescriptive status. Among those present at the CFR was the principal of West Homestead and Respondent's union representative. On February 5, 1996, Respondent was removed from her prescriptive status. She had remediated her deficiencies and had met her prescriptive requirements. On April 4, 1996, a CFR was held with Respondent regarding an incident that occurred on March 29, 1996, between Respondent and the principal of West Homestead. Among those in attendance at the CFR were the principal and Respondent's union representative. Regarding the incident on March 29, 1996, the principal at West Homestead had visited Respondent's classroom and was meeting with Respondent to discuss some behavior that she had observed. During the meeting, Respondent directed profanity at the principal, referred to the principal as "a snake" and a "spy," and stated to the principal that she (Respondent) "wanted to whip her ass on the green." Respondent bolted from the meeting and continued with the profanity outside of the classroom in the presence of others. Respondent also stated to the principal the following: "I hope you have an accident on the way home and break your m_ _ _ _ _ f_ _ _ ing neck." At the CFR held on April 4, 1996, the incident was reviewed and Respondent's behavior was referred to as unprofessional and insubordinate. The principal again directed Respondent to conduct herself in a professional manner and avoid the use of threats, profanity, and hostile gestures. Additionally, Respondent was again advised that continued unethical behavior would result in the taking of stronger disciplinary action. The principal at West Homestead was receiving verbal complaints, but no written complaints, from parents regarding discipline of children by Respondent, and the parents wanted their children removed from Respondent's class. However, the principal received no complaints of corporal punishment. The principal decided to monitor Respondent's classroom. Each time that the principal visited the classroom, she found the windows and doors closed, which caused the principal to be suspicious. Another principal was assigned to West Homestead beginning the summer of 1997. During the 1997-98 school year, the principal received a report that the paraprofessional assigned to Respondent's classroom had observed Respondent engaging in corporal punishment of her students. The principal interviewed the paraprofessional. The paraprofessional stated to the principal that she had observed Respondent hit some students on the knuckles with pencils, force some students to kneel on pencils and pattern blocks, and take some students in the bathroom, carrying a ruler with her. The paraprofessional also related to the principal that she heard Respondent threaten to kick the teeth in of some of the students. The students who were allegedly subjected to the corporal punishment were interviewed. The students substantiated the paraprofessional's account of Respondent's actions. The students also indicated that Respondent had punished them in several other ways, including extending their arms and holding books in their hands; pinching their fingernails at the base; hitting them with a ruler, which was later found to be a meter stick; and taking them into the bathroom and hitting them with the meter stick. The principal accompanied one of the students, who indicated punishment with a meter stick, to Respondent's room. The student showed the principal the location of the meter stick and the principal confiscated it. 3/ The principal interviewed Respondent. Respondent admitted only that she had some students kneel on the pattern blocks but denied any wrongdoing. The principal referred the allegations for a personnel investigation. The case was assigned to Petitioner's School Police and an investigation was begun. Among other things, the investigation consisted of interviewing the principal, the students, and Respondent. The School Police determined that the allegations were substantiated and that Respondent had engaged in, among other things, corporal punishment, violating Respondent's rule against corporal punishment. On October 26, 1998, a CFR was held with Respondent to address, among other things, the investigative report and Respondent's future employment with Petitioner. Persons in attendance at the CFR included Respondent's union representative, the principal of West Homestead, and the Director of Petitioner's Office of Professional Standards. Subsequently, on February 1, 1999, a CFR was held with Respondent to address Respondent's pending dismissal from employment, which was scheduled for consideration by Petitioner at its meeting of March 17, 1999. Persons in attendance at the CFR included Respondent's union representative, the principal of West Homestead, and the Director of Petitioner's Office of Professional Standards. On March 17, 1999, Petitioner considered Respondent's suspension and dismissal from employment. Petitioner suspended Respondent without pay and initiated dismissal proceedings against her for misconduct in office and incompetency. At hearing, six children who were Respondent's students and were allegedly subjected to corporal punishment by Respondent testified. The children ranged in ages from 7 to 9 years old. Some of the questioning by Petitioner's counsel suggested the type of instrument used by Respondent in administering the alleged corporal punishment. However, the description of the instrument used and the manner in which the alleged corporal punishment was administered were consistent throughout the children's testimony. Some of the students did not object to having Respondent as their teacher again. The testimony by the children is found to be credible. Respondent administered corporal punishment to her students. As punishment for misbehaving, Respondent made some students kneel on plastic, interlocking pattern blocks, which had a protruding rounded point on one end that fitted into another block; she pinched the base of the fingernail of some students; she struck the knuckles of some students with a ruler and a pencil; and she made some students extend their arms and hold books in their hands. Respondent caused pain to the students and caused some of the students to cry. Respondent's actions also upset the students. Respondent was notified that corporal punishment was prohibited in Petitioner's school district. The prohibition of corporal punishment, a policy by Petitioner, was published in Respondent's faculty handbook. Moreover, since at least 1993, at the beginning of each school year, this policy was discussed in faculty meetings. Respondent's action of administering corporal punishment violated the children's right to a conducive learning environment. Respondent intentionally exposed students to unnecessary embarrassment and disparagement. Respondent's actions failed to make a reasonable effort to protect her students from conditions harmful to learning and harmful to their mental and physical health and safety. Respondent failed to value the worth and dignity of her students, failed to exercise the best professional judgment, and failed to sustain the highest degree of ethical conduct. Respondent's practice of corporal punishment impairs her effectiveness in Petitioner's school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County enter a final order sustaining the suspension of Addie West and dismissing her from employment. DONE AND ENTERED this 20th day of March, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2000.
The Issue Whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact For approximately seven years, William Mitchell (Respondent) was employed as a custodian with the Monroe County School Board (Petitioner). Until 1997, Respondent worked at night at Horace Bryant Middle School, coming to work around 2:00 p.m. Respondent had very little contact with students during the school day at Horace Bryant Middle School. In or about 1997, Respondent voluntarily transferred to Key West High School and worked during the school day where he had contact with students on a regular basis. As a custodian, Respondent had no responsibility for student discipline at either school. At the time of the hearing Respondent was 53 years of age. He was described by his supervisor at Key West High School as a good employee. Respondent was considered hardworking and gentlemanly. Respondent was not known to be a violent man and had not exhibited any violent or aggressive behavior. Respondent's duties, as custodian at Key West High School, included replenishing the soda can machine and removing the money from the machine in the mornings. In the early part of March 1998, while Respondent was replenishing the machine with sodas, a student, Jerome Simmons,1 took one of the sodas from the machine. Respondent approached Simmons and questioned him regarding the soda, but Simmons denied taking the soda. Respondent believed that Simmons was not telling the truth. The soda was not in Simmons' possession and could not be found. Respondent was aware that it was appropriate for him to report misconduct by a student to the assistant principal or the school resource officer. Respondent reported the incident to the assistant principal, Robert Fletcher. Mr. Fletcher questioned Simmons who again denied taking the soda. Mr. Fletcher determined that nothing could be done because Simmons denied taking the soda and the soda was not in Simmons' possession. Simmons was an eighteen-year-old senior at Key West High School. He was stocky, well built, and muscular, having the appearance of someone who lifts weights. Simmons' tenure at Key West High School had not been without incident. He had been disruptive and been disciplined, which included suspension. John Welsh, an assistant principal, whose responsibilities included discipline of students, was very familiar with Simmons. Mr. Welsh observed, among other things, that Simmons was the kind of person who was likely to get the last word in an argument. A few weeks after the soda incident, on March 23, 1998, Simmons was returning from a meeting with his probation officer at the administrative office of Key West High School when he encountered Respondent who was going to the administrative office to obtain the key for the soda can machine. They were passing one another in a narrow hallway, and Simmons deliberately bumped Respondent; Simmons had sufficient room on his side of the hall to pass Respondent without bumping him. Respondent reacted to the deliberate bump by telling Simmons to look where he was going. Simmons mumbled something unintelligible to Respondent, who continued walking to the administrative office and obtained the key for the soda machine. Even though the assistant principal was located in the administrative office, Respondent did not report the incident. Based upon the last encounter with Simmons, Respondent believed that he needed more than an intentional bump and something mumbled unintelligible by Simmons to demonstrate misconduct by Simmons. After obtaining the key for the soda machine, Respondent proceeded to the soda machine to replenish it with sodas. While Respondent was filling the soda machine, Simmons approached Respondent from the side, staying approximately ten to fifteen feet away from Respondent, and again mumbled something unintelligible. Respondent did not want to stop his work and stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Even though Respondent used the term play, Respondent did not believe that Simmons was playing. Respondent did not report this second encounter to the assistant principal or the school resource officer. Respondent again believed that he needed more than what had happened based upon the previous soda incident involving Simmons that he (Respondent) had reported. Simmons walked away from Respondent toward the gym and again mumbled something unintelligible. However, Simmons did clearly say to Respondent, "come on." Respondent followed Simmons in hopes of being able to decipher what Simmons was mumbling in order to report Simmons if Simmons was saying anything inappropriate, as Respondent believed. It was not inappropriate for Respondent to follow Simmons. When Simmons entered the gym, he approached a physical education teacher, Nancy Thiel, and informed her that a janitor wanted to fight him. Very shortly thereafter, Ms. Thiel saw Respondent at the doorway to the gym. Simmons knew that Ms. Thiel was conducting class in the gym because, approximately twenty minutes earlier, she had directed Simmons to leave the gym since he was not in her class. A finding of fact is made that Simmons' remark that a janitor wanted to fight him is untrustworthy and not made under the stress of excitement. Simmons was calm, not appearing excited, and was relaxed when he made the remark. A finding of fact is further made that Simmons made the remark to shield himself from any wrongdoing and to make it appear that Respondent was the aggressor. Ms. Thiel was standing next to Simmons when Respondent came to the doorway to the gym. Respondent appeared calm and relaxed, not angry. Respondent again stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Simmons removed his shirt and remarked to Respondent, "You want some of this," and proceeded out of the gym to the walkway where Respondent was standing. Respondent knew when Simmons removed his shirt that he (Simmons) was serious and wanted to fight. Respondent remarked, "Let's go."2 When Respondent realized that Simmons was serious and wanted to fight, Respondent was presented with an opportunity, although of short duration, to remove himself from the confrontation. Respondent failed to leave the immediate area of the confrontation and report the incident to an assistant principal or to a school resource officer. Respondent and Simmons confronted one another. They glared at one another and, almost simultaneously, lunged at one another.3 Simmons grabbed Respondent at the bottom of both Respondent's legs; Respondent lowered his weight so as not to allow Simmons to pick him up and throw him to the ground on the concrete. They wrestled and both of them fell to the ground on the dirt and sand area, avoiding the concrete area, with Simmons landing on top of Respondent and being in control. The struggle was over very quickly. No punches were thrown by either Simmons or Respondent. No criminal charges were filed by either Simmons or Respondent against one another. Petitioner has a policy prohibiting fighting at the workplace. Petitioner's policy does not prevent an employee from acting in self-defense. Moreover, if an employee is defending himself or herself and fighting ensues, the employee would not be terminated for fighting. An employee is considered to have acted in self-defense if a student lunged at the employee and the employee held the student and, while holding the student, both the employee and the student wrestle to the ground. Respondent was not acting in self-defense. When Simmons removed his shirt and remarked whether Respondent wanted some of him, Respondent had an opportunity to remove himself from the confrontation and report the situation to an assistant principal or school resource officer. Instead, Respondent chose to continue with the confrontation which led to physical contact between Simmons and Respondent. According to the principal of Key West High School at the time of the incident, teachers receive training related to student behavior/relations as part of their professional training; and educators must adhere to the Florida Code of Ethics, which, among other things, governs their interaction with students. However, no such training and no information is disseminated to support personnel, such as Respondent, regarding standards of behavior between employees and students. Even though custodians are not licensed or trained educators, custodians, according to the principal, are held to the same level of behavior as educators. Furthermore, according to Petitioner's Director of Support Services, Robert Menendez, all school employees, including custodians, are held to a higher standard. Mr. Menendez also indicated that there is an implied code, which is a common sense approach, that employees do not confront students on school campus and create problems. This higher standard and implied code were not communicated to the custodians, including Respondent, and the custodians did not receive training regarding handling conflicts with students or aggressive students. If an employee is being held to a standard, the employee should be informed of the standard and, if required, receive appropriate training regarding the standard. Where there is an absence of communication or information or an absence of appropriate training regarding the standard, the employee cannot be held to the standard since the employee has no knowledge of the standard or has not received the appropriate training for the standard. However, in the instant case, although the higher standard and implied code were not communicated to Respondent and he did not receive training regarding handling conflicts with students or aggressive students, Respondent knew that he could report misconduct by a student to the assistant principal or school resource officer. Respondent failed to make such a report and, instead, chose to confront Simmons. Consequently, the absence of knowledge of a standard or the absence of training on the standard is of no consequence in the instant case. After an investigation, Mr. Menendez determined that Respondent had violated Petitioner's policy prohibiting fighting at the workplace and recommended to the Superintendent of Monroe County schools that Respondent be terminated from employment with Petitioner. Subsequent to Mr. Menendez's recommendation, a review of the incident was conducted by Petitioner's Director of Human Resources, Michael Wheeler, whose role was that of a hearing officer. Mr. Wheeler reviewed the allegations of misconduct against Respondent. Mr. Wheeler determined, based upon his review, that Respondent had violated Petitioner's policy against fighting at the workplace and recommended Respondent's termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Monroe County School Board enter a final order sustaining the dismissal of William Mitchell and terminating his employment. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1999.
The Issue Whether the Petitioner's decision to suspend the Respondent without pay for a period of five working days should be sustained.1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. Mr. Fox is a teacher of emotionally handicapped students who has been employed by the School Board for approximately 27 years and has taught at Jefferson Davis for the past 23 years. He is employed by the School Board under a continuing contract. On March 28, 2000, Mr. Fox was issued a written reprimand by the Director of the School Board's Department of Employee Relations for making inappropriate comments to students. During the 2000-2001 school year, Mr. Fox taught a sixth grade class composed of six to eight emotionally handicapped students, some of whom had behavioral problems. The students in the class were between 11 and 12 years of age. B.W. was a student in Mr. Fox's class from the first part of November 2000 until he was transferred in the spring to another class for emotionally handicapped students.2 B.W. testified that Mr. Fox cussed in class, using words like "damn" and "asshole," and saying things like "quit your bitching." B.W. testified that he "believed" he overheard Mr. Fox say "fuck" in a conversation with another teacher about restaurants and cars. B.W. agreed when counsel for the School Board asked him if Mr. Fox ever told him, another student in the class, to "shut the hell up."3 B.W. recalled that, when Mr. Fox was talking to a girl in the class who had been fighting, he overheard Mr. Fox tell her, in response to something that she said to him, that he would see her at her funeral.4 B.W. also testified that some of Mr. Fox's actions in the classroom bothered him.5 B.W. told his mother that Mr. Fox was being "real rude,"6 and he complained to her about Mr. Fox almost every day. L.G., B.W.'s mother, testified that B.W. complained to her about Mr. Fox. B.W. told her that, one time, Mr. Fox told him to "shut the hell up."7 B.W. also told her that Mr. Fox used the "f- word" to a teacher, and B.W. told her that Mr. Fox "said the word, damn, one time."8 B.W. also told her that Mr. Fox told him to "sit back down in the damn seat."9 When B.W. told her these things, L.G. testified that she would contact Todd Smith and Anthony Rochon at Jefferson Davis; she spoke with them weekly. L.G. testified that she had written in B.W.'s agenda book that Mr. Fox should correspond with her or call her on the telephone if there were a problem with B.W. According to L.G., Mr. Fox called her at work one day and told her that he had a problem with B.W. L.G. went to the school immediately and went into the classroom to help her son. L.G. testified that Mr. Fox was rude to her on this occasion because he told her in a gruff voice: "'Tell him to do that page there.'"10 L.G. also testified that Mr. Fox telephoned her to talk about B.W. not doing his work and being obnoxious in class. L.G. testified that Mr. Fox was rude and unprofessional during these conversations; he was "very short" with her and once told her that B.W. "wouldn't do his damn work."11 The 2000-2001 school year was Anthony Rochon's first year as the Crisis Intervention Teacher at Jefferson Davis. His job is to assist the special education teachers with students who become overly disruptive in the classroom. The students are removed from the classroom and sent to him for counseling. In many cases, the students are very angry when they come into his office; Mr. Rochon must sometimes send the student home because he or she cannot be calmed down, but, other times, the student stays with Mr. Rochon the entire day or returns to the classroom. At unspecified times during the 2000-2001 school year, Mr. Rochon received complaints regarding Mr. Fox's comments and actions in the classroom. These complaints came primarily from four male students, including B.W. and S.M., although other students in Mr. Fox's class would occasionally complain. Mr. Rochon received more complaints from the students in Mr. Fox's class than he did with respect to the other two classes for the emotionally handicapped at Jefferson Davis. Mr. Rochon could not remember during his testimony specifically what each student said about Mr. Fox, but he thinks that B.W. may have said that Mr. Fox cursed at him "or something like that."12 With respect to the other complaints, Mr. Rochon recalled that "[s]ome [students] would say he cursed at them, used profanity. Some would say he made derogatory remarks about their intelligence. And those were basically their major complaints. Yelled at them."13 Some students complained to Mr. Rochon that Mr. Fox called them stupid or yelled at them, told them that they were not wanted in the class and "should be somewhere else."14 In most cases, Mr. Rochon would talk to the student and discover that the student had been angry and misinterpreted what Mr. Fox said. In a few cases, the student would not tell him what the problem was but would become upset and would refuse to return to the classroom; Mr. Rochon would refer these cases to Todd Smith, the assistant principal for the sixth grade. Mr. Rochon also received complaints from the mothers of three of the four male students, including B.W.'s mother and S.M.'s mother. L.G., B.W.'s mother, complained to Mr. Rochon that her son complained to her about things that Mr. Fox said to him, and L.G. complained that Mr. Fox was rude to her. M.M., S.M.'s mother, complained to Mr. Rochon that Mr. Fox hung up on her and was rude to her "or something" and that she received "excessive phone calls or something from Mr. Fox about things her child was doing in class."15 Mr. Rochon has no records of the complaints he received from students or parents, and he does not know whether the accusations against Mr. Fox were true. Mr. Fox frequently sent both B.W. and S.M. to Mr. Rochon for intervention. B.W. was sent to Mr. Rochon two or three times per week, and S.M was sent more often than B.W. Mr. Fox sent both students to Mr. Rochon for intervention because they were disrupting his classroom and he could not teach. Sometimes Mr. Rochon would go to Mr. Fox's classroom to remove B.W. or S.M. in response to a request from Mr. Fox for intervention. Mr. Fox personally observed B.W. "running around the classroom, maybe talking loudly or having an argument with another student and refusing to stop when Mr. Fox asked him to."16 He personally observed S.M. to be "generally . . . loud, would sometimes use profanity. He would leave the room a lot. Mr. Fox had to call me to go find him a lot. He was more of a volatile student in the sense that when he became very angry, he became very aggressive."17 The 2000-2001 school year was Mr. Smith's first year as the assistant principal for the sixth grade at Jefferson Davis. In the fall of 2000, Mr. Smith began receiving complaints from students about Mr. Fox's behavior in the classroom. Mr. Smith also received complaints from the parents of the four male students who complained to Mr. Rochon, especially from the mothers of B.W. and S.M. The complaints began in November 2000, at about the time B.W. was placed in Mr. Fox's classroom.18 Relevant to the issues herein, L.G., B.W.'s mother, complained to Mr. Smith that B.W. complained to her that Mr. Fox used inappropriate language and some profanity, specifically "bullshit," in the classroom. M.M, S.M.'s mother, made similar allegations against Mr. Fox, and she complained to Mr. Smith that Mr. Fox made some inappropriate comments and used some profanity, but she did not give Mr. Smith any specifics. L.G. and M.M. both complained to Mr. Smith that Mr. Fox was unprofessional in his conversations with them, but they did not give any specific instances of such behavior. At their parents' requests, both B.W. and S.M. were transferred out of Mr. Fox's classroom. B.W. testified that he asked Mr. Smith to "get me out of the class because he [Mr. Fox] was rude, and he would make comments to other children which I thought were inappropriate, and they bothered me."19 At about the same time, Mr. Smith discussed the complaints with Mr. Fox, and there were no further complaints from parents. Only one student complained to Mr. Smith about Mr. Fox after Mr. Smith's conversation with Mr. Fox. Mr. Smith turned over the information regarding the complaints of L.G. and M.M. to the principal of Jefferson Davis, and the principal contacted the Personnel Department and referred the matter for investigation. The investigation of Mr. Fox was assigned to Mr. Johnson on January 17, 2001. Mr. Johnson interviewed S.M., the alleged "student victim," on February 1, 2001; he interviewed B.W. and two other students in Mr. Fox's class on March 13, 2001; and he interviewed a seventh grade student on April 10, 2001, who had been in Mr. Fox's class the previous year. Mr. Johnson also interviewed S.M.'s aunt on March 20, 2001, and S.M.'s mother, M.M., on April 10, 2001.20 Mr. Johnson made notes during these interviews and later compiled the notes into summaries of the interviews that were included in his investigation report. He compiled some other documents in this investigation report, including S.M.'s extensive disciplinary history, the written reprimand issued to Mr. Fox on March 28, 2000, and Mr. Fox's evaluations for the 1998-1999 and 1999-2000 school years.21 Mr. Johnson presented the investigation report to a case management committee, which determined that there was probable cause to discipline Mr. Fox and that the appropriate penalty would be a five-day suspension without pay, which would be progressive discipline because of the written reprimand of March 28, 2000. Summary. The School Board presented no evidence that establishes that Mr. Fox used inappropriate language or made inappropriate comments to students or parents on December 19 or 20, 2000. But even going beyond the limited time frame alleged in the Administrative Complaint, the evidence is simply not qualitatively or quantitatively sufficient to establish clearly and convincingly that Mr. Fox made inappropriate comments and used inappropriate language in the classroom or to parents. And, even had the evidence supported a finding that Mr. Fox had made inappropriate comments or used inappropriate language on December 19 and 20, 2000, or even during the 2000-2001 school year, such behavior does not involve conviction for an act of moral turpitude, the only specific violation with which Mr. Fox is charged. The only direct evidence of Mr. Fox's behavior in the classroom was the testimony of B.W.. The remaining evidence was either hearsay or hearsay within hearsay: It consisted of the testimony of L.G. with respect to B.W.'s complaints to her about Mr. Fox's comments and language in the classroom; the testimony of Mr. Rochon and Mr. Smith with respect to complaints of primarily unspecified comments and language attributed to Mr. Fox conveyed to them by students and parents, who reported only what their children had told them about Mr. Fox's comments and language in the classroom; and the summaries of the interviews Mr. Johnson conducted with a few students and the aunt and mother of one student. Given all the facts and circumstances in this case, including B.W.'s demeanor as a witness and the use of leading questions to develop his testimony, B.W.'s testimony is not sufficiently credible or persuasive of itself to constitute clear and convincing evidence that Mr. Fox made inappropriate comments and used inappropriate language in his classroom. Furthermore, the hearsay evidence regarding the student complaints about Mr. Fox's language and comments in the classroom, which formed the primary body of evidence against Mr. Fox, cannot be used to enhance B.W.'s credibility and is not sufficiently persuasive, when viewed as supplementing or explaining B.W.'s testimony, to establish clearly and convincingly that Mr. Fox made inappropriate comments or used inappropriate language in the classroom.22 The only direct evidence of Mr. Fox's behavior towards parents is the rather vague testimony of L.G. that Mr. Fox was unprofessional and rude and that, one time, Mr. Fox used the word "damn" in a conversation with her; the other evidence consisted of the testimony of Mr. Rochon and Mr. Smith regarding the complaints of two parents and the summaries of interviews with a student's mother and aunt that were included in the investigation report. A description of Mr. Fox's comments as rude and unprofessional is not sufficiently specific to establish that his comments were inappropriate, and L.G.'s testimony that Mr. Fox said "damn" in one conversation with her, even if true, is not sufficient to support a finding that Mr. Fox's use of the word was inappropriate, especially given the absence in the record of any evidence that the School Board considers inappropriate the use of the word "damn" to a parent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order rescinding the five-day suspension of William Fox and ordering that his salary for these five days be paid. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2002.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Respondent Respondent began working for the School Board approximately 12 years ago. He is presently under suspension pending the outcome of this disciplinary proceeding. For the duration of his employment with the School Board, he has done roofing work. He was hired as a Roofer II, was subsequently promoted to a Roofing Foreperson position, and then took a voluntary demotion back to a Roofer II position, the position he currently occupies. The School Board's job description for Roofer II provides, in pertinent part, as follows: BASIC OBJECTIVES The Roofer II (journey person) will work independently under the guidance of a foreperson or other supervisory personnel and in accordance with the standard practices of the roofing trade. Journey person level work includes, but is not limited to: installing, altering, maintaining and repairing all hot and/or cold roofing systems and their related components; using knowledge and experience of the trade to determine a method or to devise a means to accomplish the assigned job; and interpreting technical data from sketches, blueprints, schematics and service manuals. . . . PHYSICAL REQUIREMENTS This is very heavy work which requires the following physical activities: climbing, balancing, bending, stooping, kneeling, crouching, twisting, reaching, standing, walking, pushing, pulling, lifting, finger dexterity, grasping, repetitive motions, talking, hearing, and visual acuity. The worker is exposed to heat, noise, hazards, atmospheric conditions and oils. The work is performed outdoors. MINIMUM QUALIFICATION REQUIREMENTS * * * 5. Possession of a valid CDL Class A (6331) or Class E (6056) driver's license. * * * NOTE: This is an Omnibus Transportation Employees Testing Act (OTETA) monitored position. Employees with this job description may be required to drive or road test a motor vehicle weighing over 26,000 pounds, transport 16 or more persons, or carry hazardous materials. At all times material to the instant case, Respondent was assigned to the School Board's South Central Maintenance Satellite (South Central). At all times material to the instant case, Robert Goldberg was the director of South Central. At all times material to the instant case, Berny Blanco was a Coordinator III at South Central and Respondent's immediate supervisor. The Collective Bargaining Agreement As a Roofer II employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Dade County School Maintenance Employee Committee (DCSMEC) and covered by a collective bargaining agreement between the School Board and DCSMEC (DCSMEC Contract). Article XI of the DCSMEC Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled, "Notification." It provides, in pertinent part, as follows: Whenever an employee violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the rule, regulation, or policy violated. An informal discussion with the employee shall occur whenever the employee[']s conduct or the nature and severity of the alleged infraction/violation does not warrant formal disciplinary action. Section 2 of Article XI is entitled, "Types of Separation." It provides as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of three distinct types of separation. Voluntary-- The employee initiates the separation by resigning, retiring, abandoning the position, or other unilateral action by the employee. Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays, where such absence is not reported as prescribed by bureau/office procedures, shall be evidence of abandonment of position. Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for which the School Board may terminate employment. Absences due to emergencies, or circumstances beyond the employee's control, will be given full consideration. An employee recommended for termination under this provision shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after first being notified by the Office of Professional Standards. Dismissals, Suspensions, Demotions-- Employees dismissed, suspended, or demoted shall be entitled to appeal such action to an impartial hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. (The employee shall have 20 calendar days in which to notify the School Board Clerk, in writing, of the employee's intent to appeal such action.) Failure to request a hearing for appeal of disciplinary action in the manner prescribed herein shall be deemed a waiver of rights to any such hearing. The Board shall provide for an impartial Hearing Officer who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. All such proceedings shall be conducted in accordance with School Board Rule 6Gx13-8C- 1.64. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and demotions. If the employee is not employed or has had a reduction in salary during the time of appeal of such dismissal, suspension, or demotion, and if reinstated by Board action, the employee shall receive payment for the days not worked, or salary not received, and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or demotion. Section 4 of Article XI is entitled, "Cause for Suspension." It provides as follows: In those case where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]" As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s] regulation[s], [and] [p]olic[ies]" and, if he does not, he may be disciplined in accordance with the DCSMEC Contract. Among the School Board's rules are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." Pre-2001-2002 Regular School Year Warnings and Conferences-for- the-Record Regarding Respondent's Attendance and Leave On December 13, 2000, in response to Respondent having been absent without authorization a total of three and a half days since the beginning of the previous month, Mr. Blanco sent a memorandum to Respondent, which read as follows: SUBJECT: Notice of Performance Expectation/Requirement Consider this notice a reminder of the importance of your performance expectation in the area of attendance. A review of the most recent Leave Without Pay (LWOP) Report indicates that you have accumulated three and one half (3.5) days (11/2/00- 1 day, 12/4/00- 1 day, 12/7/00- 1/2 day, 12/1/00- 1/2 day and 12/12/00 1/2 day) of unauthorized leave without pay (ULWOP) during the previous twelve months. Be advised that Article XI, Section 2-A.2 of the Bargaining [A]greement between the School Board of Miami-Dade County and Dade County School Maintenance Employee Committee (DCSMEC) states that " . . . Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism . . . shall constitute grounds for which the School Board may terminate employment . . ." This provision serves to insure the required job performance, and prevent any unnecessary impact on other staff members and contributes to the effective operation of this department. Your unauthorized absences adversely impact this department's ability to provide timely service. When you fail to report to work, the projects you are assigned are disrupted and must be either rescheduled or reassigned to other staff members. This in turn causes them to disrupt their work schedules to perform your assignment. In conclusion, you are hereby warned that should you continue to accumulate ULWOP's, appropriate disciplinary action will be taken. Respondent signed the memorandum, acknowledging his receipt thereof. On that same date (December 13, 2000), Mr. Goldberg formally referred Respondent to the School Board's Employee Assistance Program (EAP) based upon, among other things, Respondent's "excessive absences"; his "unauthorized absences"; and his "absences on Monday[s] and/or Fridays." Despite the School Board's efforts to help him, Respondent continued to have attendance problems, which adversely impacted South Central's maintenance operations. For example, he was absent without authorization on July 9, 10, 11, 12, 13 and 18, 2001. On August 7, 2001, Mr. Goldberg held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences" and "performance-related issues." Mr. Goldberg subsequently prepared and furnished to Respondent a memorandum, dated August 28, 2001, in which he summarized what had transpired at the conference and indicated what actions Respondent needed to take in the future. Mr. Goldberg's memorandum read as follows: A conference for the record was held on Tuesday, August 7, 2001. In attendance at this conference were Dr. James Monroe, Executive Director, Maintenance Employment Standards, Mr. Berny Blanco, Coordinator, South Central Satellite, Mr. George Ellis, DCSMEC, Representative, yourself, and this administrator. Your employment history indicates that you were first employed in December of 1990 as a Roofer II, Maintenance Operations South Central Satellite. I verified that your home address is: . . . . The purpose of this Conference was to address your excessive absenteeism: nine and one half unauthorized absences, which you have accumulated in the past twelve months. Also discussed were performance- related issues and the adverse effect your unsatisfactory performance has on your employment status as a Maintenance Operations Employee. You were on unauthorized leave on the following days: July 9, 10, 11, 12, 13, 18, 2001, December 4, and 7(.5), 2000, November 2, 2000, October 23(.5), 18(.5). You were given a written warning for attendance in December 2000 when you accumulated three and one half absences without authorization. You were previously referred to the District's Support agency on two separate occasions, and you declined to avail yourself of this service. You will again be administratively referred to this agency. You are directed to: To be in regular attendance. If in the event of further abs[ences], you are to contact Mr. Blanco or in his place Mr. Louis Martinez. If your absences are due to illness, immediately upon your return to duty, you must submit a note from your treating physician. Failure to comply will result in the absence being recorded as leave without pay, unauthorized (LWOP). To honor the workday by arriving on time. You submitted the attached letter dated August 1, 2001 requesting a career redirection back to [a] Roofing Journeyperson position. Dr. Monroe and I indicated that we would recommend to Mr. Woodson that this request be accepted and you be placed in a Journeyperson's position effective immediately. It was explained to you that this request does not relieve you of your responsibility to improve your attendance nor does it allow you to interfere with the daily operation of the roofing crew under the supervision of an acting or temporary foreperson. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference summary, and to have any such response appended to this document. Respondent signed the memorandum, acknowledging his receipt thereof. Respondent's request to be placed back in a Roofing II position was granted. In a further attempt to assist Respondent to become a more productive employee, the School Board again referred him to the EAP. The 2001-2002 School Year The School Board's efforts to help Respondent were unavailing. Respondent's poor attendance persisted. Moreover, contrary to the instructions he had been given, he failed to notify supervisory personnel of his absences. Not having "heard from [Respondent]," who had been absent without authorization for an extended period of time, Mr. Goldberg, on October 15, 2001, sent the following memorandum, by certified mail, return receipt requested, to Respondent's residence: SUBJECT: EMPLOYMENT INTENTION Please be advised that you have been absent from the worksite on the following days: 9/14/01, 9/17/01, 9/18/01, 9/19/01, 9/20/01, 9/21/01, 9/24/01, 9/25/01, 9/26/01, 9/27/01, 9/28/01, 10/1/01, 10/2/01, 10/3/01, 10/4/01, 10/5/01, 10/8/01, 10/9/01, 10/10/01, 10/11/01 Because these absences have caused . . . __x__ effective operation of the worksite to be impeded . . . I am requesting your immediate review and implementation of any of the following options. Notify the worksite or your intended date of return; Effect leave procedures (request for leave form attached); Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Respondent failed to comply with the directives contained in this memorandum; however, he did attend a meeting on October 23, 2001, at which his "leave history for the past 12 months was presented to [him] and reviewed with [him]." During this 12-month period, Respondent was absent a total of 83.5 days, 40.5 of which he was absent without authorization. Respondent attended a Conference for-the Record held on November 7, 2001, in the School Board's Office of Professional Standards. Also in attendance at the conference were Renaldo Benitez, the Executive Director of the Office of Professional Standards; Dr. James Monroe, the Executive Director of Facilities Operations; Mr. Goldberg; and a DCSMEC representative. The conference was held to address Respondent's "performance assessments-to-date; attendance-to-date; non- compliance with site directives regarding attendance; and . . . future employment status with the Miami-Dade County Public Schools." On November 13, 2001, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You have exceeded the number of days accrued and have failed to follow directives and reminders issued to you at your worksite in reference to your excessive absenteeism. You were provided an opportunity to respond and you said: "I was out on back injury and knee surgery. I thought that the worksite would grant me authorized leave. I knew it would be leave without pay, but not unauthorized. I provided all the doctor's notes to Mr. Goldberg." This administrator told you that if that was the case, you should have effected a medical leave with the leave office. You said, "I didn't know anything about the leave office. I was not aware of those procedures." Dr. Monroe asked you if you were in possession of your Maintenance Employee Handbook, which includes procedures to effect leave and you said, "Yes, I did not read the employee book and that is my fault." Mr. Goldberg showed you the employee intention letter sent to you on October 15, 2001, which you admitted having received, and pointed out that one of the options is for you to implement leave procedures and a Request for Leave Form was attached. You said, "I did get the letter, but there was no form attached." This administrator asked you if you had attempted to contact your union and seek advice from them and you said, "No." You also said: "I just went through a divorce. I don't want to be a bad employee. I have tried to see Mr. Abin with the District's support referral services. He just has not been able to see me. I want to participate." You provided a note from your physician, Dr. Nancy L. Erickson, releasing you for full duty and restricting you to only wearing a knee support. Dr. Monroe said, "This note is satisfactory, but you have to be in attendance and on time every day. It is very important for you to schedule any pending doctor's appointments after work hours because of the large number of absences you have amassed." This administrator reminded you that 40.5 days of leave without pay unauthorized within the last 12 months is more than excessive. According to contractual stipulations, "Unauthorized absences totaling more than five or more workdays during the previous 12 month period shall be evidence of excessive absenteeism." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. You said, "No. sir." The following directives were issued to you during the conference concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact on the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference you were provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct and 6Gx13-4E-1.01, Absences and Leaves. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference, to assume your duties. . . . Please be aware of your right to clarity, explain, and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. The "note from . . . Dr. Nancy L. Erickson" that Respondent submitted during the conference was a forgery. It read as follows: To whom it may concern: I apologize. Mr. Kepler's rehabililative [sic] therapy completion date was incorrect. The correct date in [sic] November 1st. He kept his appointment with me on October 31st which was the completion of his therapy. He is released for full duty and only restriction is to wear knee support. The second sentence of the note referred to a previous note that Dr. Erickson had purportedly written. This previous note, which had been sent, by facsimile transmission, to Mr. Goldberg, was also a forgery. It read as follows: October 16, 2001 Re: Charles Kepler To Whom It May Concern: Mr. Charles Kepler has been under my care for an injury to his left knee. Mr. Kepler has been under going [sic] rehabilitative physical therapy which he will complete the end of this week. Mr. Kepler is released to return to work on Monday October 22, 2001. Respondent was a patient of Dr. Erickson's, but the last time he had seen her was March 29, 2001, and he had only received treatment from her for back pain, not for any knee problems. Mr. Goldberg received other notes concerning Respondent's physical condition and medical needs, in addition to the two mentioned above, purporting to be from Dr. Erickson that were also forgeries. While he may have had the assistance of others, Respondent was the driving force behind this scheme to defraud the School Board through the submission of forged doctor's notes. 2/ Following the November 7, 2001, Conference-for-Record, Respondent continued his "pattern of excessive absenteeism and . . . violation of . . . attendance procedures," which prompted Mr. Goldberg to recommend, in writing, that Respondent be fired. Mr. Goldberg's written recommendation, which was dated November 30, 2001, read, in pertinent part, as follows: I hereby recommend that Mr. Charles Kepler be terminated from his employment with the Miami-Dade County School District Maintenance Operations, South Central Satellite. Mr. Kepler has a continuing pattern or excessive absenteeism and has recurring violations of Maintenance and Operations attendance procedures. He has failed to comply with School Board rules, responsibilities and duties even after he was given specific instructions and directives regarding future absences. * * * On November 26, 2001, he requested one-day sick leave but only had 1/2 day available leave. On November 29 and 30, 2001, he again called in for sick leave with no available time. He never personally notified Mr. Blanco or this administrator of this request for leave time. On three separate occasions, Mr. Kepler was referred to the District Support Agency. He declined to avail himself of its service on every occasion. . . . No immediate action was taken on Mr. Goldberg's recommendation. Respondent was absent without authorization on December 10, 12, 13, 18, 19, 20, 21, 27, 28 and 31, 2001, January 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30 and 31, 2002, and February 1 and 4, 2002. On February 4, 2002, Mr. Goldberg sent a memorandum, by certified mail, return receipt requested, to Respondent's residence containing the following instructions: I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. On or about February 7, 2002, Mr. Goldberg received the following letter from Respondent: This is to inform you that I will be returning to work on Feb. 11, 2002. I will be completing my therapy for my knee on Feb. 9, 2002. I will bring a release from the doctor and she will fax you one. Her assistant has been faxing you updates every week. I will be moving this weekend; my new address is . . . and my new phone number is . . . . If there are any changes with my injury I will contact you Friday after therapy. Respondent did not report to work on February 11, 2002, or at any time thereafter, and he failed to comply with the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." (On numerous occasions, Mr. Goldberg telephoned Respondent's residence in an effort to "contact [Respondent] directly," but he was never able to reach Respondent.) During the week of February 11, 2002, and the several weeks that followed, Mr. Goldberg received, by facsimile transmission, notes, purportedly signed by Dr. Erickson, concerning Respondent's physical ability to report to work. Mr. Goldberg, suspecting (correctly) that the notes might not be genuine, contacted Dr. Erickson's office by telephone and, in response to the inquiries he made, was told that the last contact Dr. Erickson had with Respondent was in late March of 2001. Following this telephone conversation, Mr. Goldberg referred the matter to the School Board's Police Department for investigation. The investigation was conducted by Detective Richard Robinson. After completing his investigation, Detective Robinson issued a written report (Investigative Report G-13852) on May 1, 2002, which contained the following accurate conclusion: Based on statements and evidence gathered during this investigative process, there is sufficient evidence to prove between the dates of July 25, 2002, Mr. Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents stating his inability to return to work, due to an injury. During an interview with Mr. Kepler's physician, Dr. Nancy Erickson, it was confirmed that the physician notes faxed to Mr. Goldberg from Mr. Kepler, and allegedly signed by Dr. Erickson, were forged. Dr. Erickson stated she has not seen Mr. Kepler since March 29, 2001. The allegation of the Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, against employee, Mr. Kepler, Jr., is Substantiated. From November 7, 2001, the date of the last Conference-for-the-Record, to May 23, 2002, Respondent was absent a total of 122 days. All but one of these absences were unauthorized. Respondent repeatedly disregarded the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." Sometime prior to May 31, 2002, Mr. Goldberg learned that Respondent's driver's license had been suspended since December 31, 2001 (as a result of Respondent being arrested for driving under the influence) and that therefore Respondent no longer (and had not since December 31, 2001) met the minimum qualifications to be a Roofer II. Respondent attended a Conference-for-the Record held on May 31, 2002, in the School Board's Office of Professional Standards. Also in attendance at the conference were Mr. Benitez, Mr. Goldberg, and representatives of DCSMEC. The conference was held "to address Investigative Report G-13852 . . . ; [Respondent's] record; and [his] "future employment status with the Miami-Dade County Public Schools." On June 17, 2002, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You were provided an opportunity to respond to your excessive absences and your suspended driver's license. You said, "I was sick. I could not bend my knees, but I still called the tape. My driver's license is suspended, but I'm not guilty. That's why I'm fighting it. I'm in the process of clearing all this up." Mr. Goldberg said, "The directives that you were given were specific, that is, to contact me and not to call the tape. Furthermore, your job requires you to have a valid driver's license in order to perform your duties. You need to take care of your driver's license and submit a letter from your doctor that you can return to work without any restrictions." Investigative Report- G-13852, Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities- Substantiated A copy of the aforementioned investigative report was presented to and reviewed with you in its entirety. You were provided an opportunity to respond to the allegation that: "Between July 25, 2001 and February 25, 2002, Employee Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents, stating his inability to report to work, due to injury." You said, "I did not submit anything forged. Everything came from her office as far as I know. I have never forged any doctor's letter." This administrator asked, "Why were these medical notes faxed from a different medical center and some even had misspellings." You said, "I don't know. It was the girl in the office that wrote them." I reminded you that Dr. Nancy L. Erickson, O., is an anesthesiologist and she stated that she has only seen you three times. You said, "That's because they don't want to deal with me anymore. The other doctor that she sent me to was afraid that I would sue him." I asked you again if any of these notes were false and you said, "No." Mr. Bell [a DCSMEC representative] said, "He will submit documentation of his knee surgery." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with M-DCPS. You said, "No, sir." Should you return to work, the following directives were re-issued to you during the conference concerning future absences: Be in regular attendance. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay, Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. In addition, the following directives herein delineated were also issued to you during the conference: Adhere to all (M-DCPS) School Board Rules and regulations at all times. Do not forge any documents related to your employment with M-DCPS. Do not submit any forged documents for any reason to M-DCPS. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference, you were provided with a copy of School Board Rule[] 6Gx13-4A- 1.21, Responsibilities and Duties/Employee Conduct. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference to assume your duties. You were advised to keep this information presented in this conference confidential and not discuss this with co- workers. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Chief Facilities Officer of Maintenance, and the Director of South Central Satellite. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Chief Facilities Officer of Maintenance will compel formal notification of the recommended action or disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have any response appended to your record. Respondent did not provide supervisory personnel with proof that his driver's license had been reinstated, nor did he "submit a letter from [his] doctor that [he] c[ould] return to work without any restrictions," as he had been instructed to. He remained out of work, accumulating additional unauthorized absences. On June 23, 2002, Respondent attended a meeting in the Office of Professional Standards, along with Mr. Benitez and Mr. Goldberg, at which he was advised of the following: A legal review of the case file and the summary information determined that you, Mr. Charles M. Kepler, be recommended for dismissal for the following charges: Just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. On August 9, 2002, Merrett Stierheim, the School Board's Superintendent of Schools, sent Respondent the following letter: I am exercising my responsibility as Superintendent of Schools and recommending to The School Board of Miami-Dade County, Florida, at its scheduled meeting of August 21, 2002, that the School Board suspend you and initiate dismissal proceedings against you from your current position as Roofer II at South Central Maintenance effective at the close of the workday, August 21, 2002, for just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. If you wish to contest your suspension and dismissal, you must request a hearing in writing within 20 calendar days of the receipt of notice of the Board action, in which case, formal charges will be filed and a hearing will be held before an administrative law judge. At its August 21, 2002, meeting, the School Board took the action recommended by Mr. Stierheim. At no time from May 23, 2002, until the date of his suspension did Respondent report to work. All of his absences during this period were unauthorized. Although Respondent had accumulated an extraordinary number of unauthorized absences at the time of his suspension, the number would have been even greater had Mr. Goldberg not "worked with [Respondent]" and converted some absences, which were initially unauthorized, to "vacation or sick days when [Mr. Goldberg] could" (following his review of medical documentation belatedly provided by Respondent).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment with the School Board pursuant Article XI of the DCSMEC Contract. DONE AND ENTERED this 26th day of February, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 26th day of February, 2003.
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether the refusal by the Respondent District School Board of Madison County to sign a contract prepared by a representative of the Madison County Education Association after a meeting of the Parties held for the purpose of reaching a collective bargaining agreement on November 18, 1975 was an unfair labor practice.
Findings Of Fact The Madison County Education Association was recognized by the District School Board of Madison County as exclusive bargaining agent for a unit of instructional employees of Madison County Schools on April 1, 1975. Formal negotiations for the purpose of reaching a collective bargaining agreement commenced on or about July 3, 1975. An impasse was reached on or about August 1, 1975 and the controversy was submitted to a special master under Section 447.403, Florida Statutes. A Special Master, Marvin A. Griffin, was appointed by Curtis L. Mack, Chairman, Public Employees Relations Commission, "to investigate the disagreement between the Madison County School Board and the Madison County Teachers Association." After a hearing on August 29, 1975 and September 12, 1975, Mr. Griffin filed a report dated September 26, 1975. He then offered to write a synthesized agreement and presented a draft of an agreement (hereinafter designated Contract 1) entitled "Agreement between Madison County Education Association and District School Board of Madison County, Madison, Florida, October 1, 1975." The Superintendent of Public Instruction, Gene Stokes, formally rejected the Special Master's recommendations concerning a number of articles in the agreement and made recommendations on disputed items in the Special Master's report. The District School Board of Madison County met with the Madison County Education Association and the School superintendent on November 13, 1975, at which meeting the School superintendent and the Teachers Association explained their positions. No final action was taken, and the item was tabled until November 18, 1975. At the meeting on November 18, 1975, the proposed agreement of the Special Master was modified by the superintendent's recommendation and was further modified by a Motion of school board member Eugene P. Bowie to Article XVII. (TR. 44) The agreement as modified was not reduced to writing at the meeting on November 18, 1975. The President of the Teachers Association, Florise Whittemore, used the special Master's agreement and her notes and reduced the agreement to writing (hereinafter called Contract 2 ), as she had understood the agreement. After the agreement was typed, it was presented to the teachers on November 25, 1976 and ratified by them. The pertinent portion of the official minutes of District School Board of Madison County adopted at its regular meeting, December 1975, reads: "Article XVII, $500 increase in base pay for each teacher." An unsigned copy of the contract prepared by Mrs. Whittemore was delivered to school Board Member Pickles through his daughter. A copy was also delivered to Mr. Bowie in person. A signed copy was delivered in December to the Chairman of the School Board and the negotiator Lloyd Day. Upon presentation of the contract agreement as drafted by the Madison County Education Association, member Albert W. Waldrep refused to sign the contract contending that the interpretation as shown in the teachers contract of the Motion by School Board member Bowie was in error. Member Bowie meant by his Motion that the raise should be from June 30, 1975 and Member Albert W. Waldrep understood that Member Bowie's Motion meant from November 1, 1975. Respondent then instructed its attorney to redraft the provisions of the contract pertaining to salary and said redraft (hereinafter called Contract 3) was adopted by the Respondent and signed by Chairman C. W. Pickles and attested to by Gene Stokes, Superintendent. The Charging Party refused to accept Contract 3 as redrafted by Respondent. The Charging Party thereafter filed an unfair labor charge which resulted in a formal Complaint and Notice of Hearing being issued by Public Employees Relations Commission on April 21, 1976. The Hearing Officer further finds: The Motion by Member Bowie relative to the dispute in this cause was voice recorded "Here I recommend a $500 raise per year for each teacher." It was amended by Member Pickles and concurred in by Mr. Bowie to state "base pay" and then seconded by Mr. Pickles. There was no mention of what date the raise was to be effective. There was no discussion of "retroactive pay" or "bonus pay", although the pay increase as intended by Member Bowie would have involved an increase of $150 per month for each of the three months of July, August and September. Member Bowie, cognizant of Contract 1 and prior negotiations, meant the raise to begin June 30, 1975. His Motion was intended to encompass Contract 1 as submitted by the Special Master and recommended by Superintendent Stokes. Mr. Waldrep, cognizant of the prohibition against retroactive pay and the shortage of funds, believed that he voted for a raise beginning November 1, 1975. Teacher salary checks for July, August and September, 1975, had been cut prior to the November 1975 Meeting. The words of the Motion "Here I recommend $500 raise per year for each teacher" together with the amendment or clarification "base pay" does not speak to the point in controversy and is consistent with either an interpretation to mean "fiscal year" or "calendar year." The contract as rewritten, typed and submitted to the members of the School Board [designated Contract 2] was the understanding of the Madison County Education Association of an agreement reached by the Parties at the November 18, 1975 meeting. The contract as rewritten, typed and submitted to the teachers [designated Contract 3] was the understanding of a majority of the five-member District School Board of Madison County of an agreement reached by the Parties at the November 18, 1975 meeting. There was no final agreement between the Parties as to the disputed salary increase effective date. After the November 18, 1975 meeting, Contract 2 was written by the Charging Party without the aid of the Respondent. It reflected an interpretation of the Motion most favorable to Charging Party's financial interests. After the November 18, 1975 meeting, Contract 3 was written by the Respondent without the aid of the Charging Party. It reflected an interpretation of the Motion most favorable to Respondent's financial interests. The facts of the cause do not reflect an unfair labor practice under Section 447.501, F.S., for the reason that the refusal by the parties to sign either Contract II or Contract III was based on the fact that no final agreement had been reached on the disputed issues at the collective bargaining meeting of November 18, 1975.
Recommendation Dismiss the complaint. DONE and ENTERED this 15th day of October, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Leonard Carson, Chairman Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301 Edwin B. Browning, Esquire Post Office Drawer 652 Madison, Florida 32340 R. T. Donelan, Jr., Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Rod W. Smith, Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Florise Whittemore, President Madison County Education Association Madison, Florida Tobias Simon, Esquire and Elizabeth deFresne, Esquire 208 West Pensacola Street Tallahassee, Florida 32304
The Issue The issue in this case is when the 97-day probationary employment period began to run for each of the Respondents, and whether their employment could be terminated without just cause.
Findings Of Fact Petitioner is the School Board of Polk County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools of Polk County. The Board hired both Respondents, Diane O'Brien and Marcee Gunn, to fill positions within the Polk County School System. Prior to the 2003-2004 school year, Federal requirements under the "No Child Left Behind" ("NCLB") program mandated that by the end of the 2005-2006 school year, all teachers in core academic areas must be "highly qualified" as defined by Federal guidelines. The guidelines state that a teacher must possess a combination of both appropriate certification and documentation of subject area knowledge. The determination of whether a teacher had the requisite knowledge was done by way of a battery of tests in the subject areas. At the time the NCLB program was instituted, Polk County was experiencing a high level of growth and was hiring approximately 1,200 new teachers each year. The shortage of teachers who had obtained the highly qualified status resulted in the Board hiring a class of teachers who were not highly qualified, but under certain restrictions. These teachers were deemed D-1 provisional substitute teachers. The D-1 teachers were hired with the intention of allowing them to be employed as substitutes, pending their passage of the subject area tests. D-1 teachers were first hired by the Board to fill positions in the 2002-2004 school year. D-1 teachers were paid a daily rate of pay and received insurance and retirement benefits. If the teacher ultimately became highly qualified, they were to be given seniority consideration retroactive to the date of their hire.1 As substitutes, D-1 teachers were "at will" employees and were not contract employees. Their employment could be terminated with or without cause at any time. All D-1 positions were terminated at the end of the school year for which they were hired. If a teacher had not obtained highly qualified status, they could be hired as a D-1 teacher for the next school year. The D-1 program was eliminated, in whole, at the end of the 2007-2008 school year. Diane O'Brien Respondent, Diane O'Brien, worked as a para-educator for 15 years before earning a degree in special education from Nova Southeastern University in 2006. O'Brien was hired by the Board to be a D-1 substitute teacher for handicapped students at Haines City High School for the 2007-2008 school year. At the time of her hire, O'Brien signed a Conditional Employment Agreement that refers to her as "Teacher." The agreement does, however, set forth certain requirements for becoming a regular teacher. O'Brien was assigned a full-time para-educator to assist her and was given a classroom for purposes of fulfilling her position. At all times during the school year, O'Brien acted as and considered herself to be the official teacher for the class. O'Brien was evaluated during the school year by the principal and the assistant principal. O'Brien attended the IEP meetings and was responsible for writing IEPs for her students. O'Brien was never referred to by staff or other teachers as a "substitute" teacher during that school year. Nonetheless, O'Brien signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School Year" when she was hired. The document clearly indicates the requirements for a regular teacher and states that until such requirements are met, the teacher is considered a provisional D-1 substitute. O'Brien does not specifically remember signing this particular document; she said she signed many documents when hired, and none of them were explained to her. O'Brien did not meet the requirements to be a regular teacher at that time. During the 2007-2008 school year, O'Brien was paid as a D-1 substitute teacher, i.e., $115 per day, plus benefits. As early as August 2007 (the month classes began), O'Brien contacted a Ms. Capoziello requesting that her salary be changed to full-time teacher salary. She was advised that she had not yet met the requirements for a full-time teacher, because she had not yet met the "Certified, Qualified and Highly Qualified" requirements set forth in the Guidelines for Provisional Substitute Teachers. In December 2007, O'Brien indicated in an email that she was working hard to pass the necessary tests, but had not yet done so. In January 2008, O'Brien contacted the human resource officer to inquire as to when her status would change. In response, she received the following explanation: Please refer to the individualized Guidelines for Provisional Substitute Teachers 2007-2008 School Year that you signed on August 8, 2007. During New Educator Orientation, you were provided with the requirements necessary to attain "highly qualified" status for your ESE assignment. You are fully certified in ESE, but according to federal legislation, you are not considered "highly qualified" as defined in the law, because you have not "demonstrated subject matter competence" to teach ESE academic subjects. [F]or your current assignment, you need to pass the Elementary Education K-6 subject area exam to be deemed "highly qualified." After you have completed this requirement that was provided to you on August 8, 2007, then you will be eligible to transfer to B1 status as a regular teacher. (Emphasis in original.) After the end of the 2007-2008 school year, O'Brien passed the subject area exam necessary to achieve "highly qualified" status. She was then hired in the 2008-2009 school year as a regular teacher by the Board. O'Brien commenced work under her first annual contract with the Board as a regular teacher on or about August 11, 2008. On November 11, 2008, a memorandum was issued to O'Brien by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." O'Brien signed the memorandum, acknowledging receipt. The memorandum identifies O'Brien as "an initial annual contract teacher." The effect of the memorandum was termination of O'Brien's employment by the Board. O'Brien maintains that her period of teaching during the 2007-2008 school year was as a regular teacher. If that is the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause. Marcee Gunn Respondent, Marcee Gunn, received her education at the University of Missouri at St. Louis. Gunn received her Florida teaching certification and was, in August of 2007, a certified teacher. Gunn was hired by the Board as a pilot D-1 substitute teacher for the 2007-2008 school year. A pilot substitute teacher fills in for absent teachers at one particular school, rather than going to various schools. In February 2008, Gunn was transferred from a pilot substitute to a permanent position as a kindergarten teacher at the School. The previous teacher had moved to another position, and Gunn was asked to fill the position through the end of the current school year. The permanent position was also classified as D-1 substitute, because Gunn had not yet become highly qualified. Gunn acted as, and considered herself to be, the full-time kindergarten teacher. She organized the classroom, prepared all student assignments, issued a monthly newsletter, and attended IEP meetings. Gunn was evaluated in her position by the principal and assistant principal. While Gunn was a pilot D-1 substitute, she received pay of $115 per day, plus benefits. At the time she became the permanent kindergarten teacher she received the same pay, but believed she would be receiving regular teacher pay. However, upon taking the kindergarten teacher position, Gunn signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School Year." The document clearly indicates that Gunn was being hired as a D-1 substitute and sets forth the requirements for becoming a regular teacher, i.e., passing a test in the subject area to be taught. Gunn also acknowledges signing the document, but does not have any specific recollection of having seen it. She did know that the document required her to pass the K-12 subject area exam in order to be reclassified as a regular teacher. Gunn's position was terminated at the end of the 2007-2008 school year. Gunn was re-hired by the Board for the 2008-2009 school year as a regular teacher for the same kindergarten class. (The evidence is not clear whether Gunn was hired in 2008-2009 as a D-1 substitute or a highly qualified teacher. The fact is not relevant, however, because even if she was a regular teacher, she would have been in her first year of an annual contract.) On November 14, 2008, a memorandum was issued to Gunn by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." Gunn signed the memorandum, acknowledging receipt. The memorandum identifies Gunn as "an initial annual contract teacher." The effect of the memorandum was termination of Gunn's employment by the Board. Gunn maintains that her period of teaching during the 2007-2008 school year (or at least a part of it) was as a regular teacher. If that is the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause. There is no dispute by Respondents that the dismissal memoranda were issued within 97 days of their commencement of work during the 2008-2009 school year. Rather, each Respondent contends that their full-time, contracted employment with the Board commenced earlier than the 2008-2009 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Polk County School Board, terminating the employment of Respondents, Diane O'Brien and Marcee Gunn, effective as of the dates determined by the Board. DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 20th day of November, 2009.
The Issue The issue for determination is whether Respondent should be suspended without pay and terminated from employment with Petitioner for falsification of documentation and insubordination.
Findings Of Fact Mr. Chappelle has been employed with the School Board since around August 2002. His supervisor was John Dierdorff. At the time of the hearing, Mr. Chappelle had been a communications technician with the School Board for approximately five years.1 No dispute exists that, at all times material hereto, Mr. Chappelle was a non-instructional employee with the School Board. Additionally, his supervisor for the entire time of his employment in communications with the School Board was Mr. Dierdorff. Approximately one year after beginning his employment with the School Board, Mr. Chappelle was having attendance problems, i.e., absenteeism. Mr. Dierdorff attempted to assist Mr. Chappelle improve his attendance, but to no avail. At a point in time, Mr. Chappelle had exhausted all of his sick leave and had no available sick days. When Mr. Chappelle was absent due to illness, he was required to submit a doctor’s excuse. On December 17, 2007, Mr. Chappelle received a written reprimand for falsification of documentation from the School Board’s Director of the Department of Employee Relations. He had submitted to Mr. Dierdorff a “fraudulent or false doctor’s note that was purported to be from [his doctor].” Among other things, Mr. Chappelle was “directed to cease such conduct immediately” and “to desist from engaging in the same or similar conduct in the future” and was informed that his failure to do so would result in “further disciplinary action up to and including termination.” Mr. Chappelle acknowledged receipt of the written reprimand by signing it on December 17, 2007. The evidence demonstrates that the Director of the Department of Employee Relations had the authority to give Mr. Chappelle the directive. The evidence further demonstrates that the directive was reasonable in nature. Regarding the written reprimand, at hearing, Mr. Chappelle admitted that he had falsified the doctor’s note, submitted it to Mr. Dierdorff, and had received the written reprimand as disciplinary action. Moreover, Mr. Chappelle admitted that he had self-reported the wrongful conduct to the School Board; the School Board had no knowledge that he had falsified the doctor’s note. Mr. Chappelle further admitted that he engaged in the wrongful conduct because, at the time, he was suffering from health issues and having money problems, including no money to pay for a doctor’s services, and his wife was having mental health issues. Several months later, on or about September 29, 2008, Mr. Chappelle submitted a doctor’s note to Mr. Dierdorff. Among other things, the note indicated that Mr. Chappelle was medically cleared for work starting September 29, 2008; and that he was not to work from September 17, 2008, through September 29, 2008. Mr. Dierdorff believed that the doctor’s note had been altered or falsified because the note had whiteout on it and the date of the note appeared to be “9/24/98,” not “9/24/08.” As a result, he referred the matter to the Department of Employee Relations for possible investigation. Subsequently, Mr. Chappelle became the subject of an investigation by Employee Relations. The investigation was based upon the allegation that he had falsified the doctor’s note and had acted in an insubordinate manner by engaging in the same or similar conduct for which he had been previously disciplined. The doctor’s note that was contained in the medical file at the physician’s office was not the same as the doctor’s note submitted to Mr. Dierdorff. Instead of indicating that Mr. Chappelle was medically cleared for work on September 29, 2008, the doctor’s note in the medical file indicated September 25, 2008. Further, instead of indicating a period of time in which Mr. Chappelle was not to work, the doctor’s note in the medical file was blank and, therefore, did not indicate a period of time. However, the doctor’s note in the medical file did indicate that the date of the doctor’s note was “9/24/08,” the same as the doctor’s note submitted to Mr. Dierdorff. The evidence demonstrates that the doctor’s note submitted to Mr. Dierdorff on or about September 29, 2008, was altered and falsified. Mr. Chappelle denies that it was he who altered and falsified the doctor’s note. Mr. Dierdorff denies that he altered or falsified the doctor’s note. Mr. Chappelle does not deny that it was he who submitted the doctor’s note to Mr. Dierdorff. The evidence demonstrates that Mr. Chappelle altered and falsified the doctor’s note that he submitted to Mr. Dierdorff on September 29, 2008.2 Mr. Chappelle’s conduct on September 29, 2008, was the same as or similar to his previous conduct for which he was disciplined on December 17, 2007, by a written reprimand. Among other things, Mr. Chappelle was notified in the written reprimand that the same or similar conduct would result in further disciplinary action up to and including termination. The evidence demonstrates that Mr. Chappelle intentionally committed the same or similar conduct and intentionally failed to abide by the directive to no longer engage in such action. By letter dated April 24, 2009, the Superintendent, Arthur C. Johnson, Ph.D., advised Mr. Chappelle, among other things, that sufficient just cause existed to impose disciplinary action pursuant to Sections 1012.22(1)(f) and 1012.27(5), Florida Statutes; School Board Policies 1.013 and 3.27; and Article 17, Section 6 of the Collective Bargaining Agreement between the Service Employees International Union, Florida Public Services Union, and the School Board. Further, Superintendent Johnson advised Mr. Chappelle that he (Superintendent Johnson) was recommending to the School Board, as discipline, suspension without pay and termination from employment. Mr. Chappelle acknowledged that he received the letter by signing and dating it on April 25, 2009. Superintendent Johnson’s recommendation was submitted to the School Board. The School Board agreed with the recommendation. Mr. Chappelle timely requested an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Augustus Chappelle for 15 days and re- instating him at the expiration of the suspension. DONE AND ENTERED this 10th day of May 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2010.
Findings Of Fact Respondent commenced the 1985-86 school year as a student in the eighth grade at Palms Springs Junior High School. By letter dated November 22, 1985, Petitioner advised Respondent's parents that Respondent "as being administratively assigned, effective immediately, to the Jan Mann Opportunity School-North. That letter further advised of a right of review of Respondent's placement into the opportunity school program until Respondent had made sufficient progress to be returned to the regular school program. Respondent's mother requested a hearing on that placement. On December 5 1985, a "withdrawal card" from the Dade County public schools was executed. At the hearing in this cause on March 17, 1986, Respondent testified that he has never attended the Jan Mann Opportunity School-North while waiting for review of that placement and in fact has been attending no school since he was administratively assigned. In response to questioning as to what he has been doing since his administrative reassignment of November 22, 1985, Respondent replied, "Nothing." Although Respondent's mother agreed during the formal hearing in this cause that she would place her son back into the school system and would send him to the opportunity school while awaiting the outcome of this proceeding, she has not done so. Pursuant to instructions from the undersigned, on March 31, 1986, Petitioner filed a Certification advising that as of March 27, 1986, Respondent was still not in attendance within the Dade County school system. Respondent was born on August 14, 1970.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent's request for an administrative review for lack of subject matter jurisdiction. DONE and RECOMMENDED this 15th day of May, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer, Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 486-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2780 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 James M. Ratliff Esquire Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami Florida 33147-4796 Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami Florida 33132
