The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and, if so, what relief should be granted.
Findings Of Fact Petitioner is a Black West-Indian male. Respondent is a political subdivision of the State of Florida responsible for operating the public schools in Broward County. Petitioner obtained a temporary teaching certificate from the Florida Department of Education in 2017. In October 2017, Petitioner was hired by Respondent as a teacher at Walker Elementary School. As a new teacher, Petitioner was a contract employee subject to a probationary period of one school year. During the probationary period, Petitioner could be dismissed without cause or resign without breach of contract. Petitioner worked at Walker Elementary School, where he did not have his own classroom, but worked with special-needs children in different classrooms, until the end of the 2017-2018 school year. There were no teaching positions available at that school for the 2018-2019 school year. In August of 2018, Petitioner was transferred by Respondent to Mirror Lake, where he filled a first-grade teaching vacancy. Andrea Gresham was the team leader for first-grade teachers at Mirror Lake. As a new teacher, Petitioner was assigned a mentor to assist him in acclimating to the duties of his position. In addition to being the team leader for all first-grade teachers at Mirror Lake, Ms. Gresham was also Petitioner’s designated mentor. Petitioner reported for work at Mirror Lake on August 7, 2018. At that time, Ms. Gresham took Petitioner on a tour of the campus. She also provided Petitioner with sample lesson plans and homework for the students. Throughout the week, Petitioner prepared for the first day of school for students with Ms. Gresham’s help. These preparations included Ms. Gresham reviewing procedures related to beginning-of-year testing, student homework, teacher planning, and student dismissal at the end of the school day. It was Ms. Gresham’s habit to keep dated notes relevant to her duties as a mentor and team leader. As a best practice, she regularly met with Principal Veliz to discuss the progress of new teachers. Ms. Gresham kept contemporaneous notes of her interactions with Petitioner and kept Principal Veliz advised of her observations. Ms. Gresham observed that Petitioner was not engaged within the team of first-grade teachers and had a difficult time grasping school procedures despite her attempts to guide him. The typical first-grade student is six years old at the beginning of the school year. Given how young these students are, the protocol at Mirror Lake requires teachers to take extra care to ensure that the students are directed to the correct mode of transportation during dismissal. Ms. Gresham explained the dismissal procedures and emphasized their importance to Petitioner on more than one occasion leading up to the students’ first day of school. Each first-grade student is given a lanyard that is color-coded to correspond to that student’s teacher. Teachers are responsible for writing each child’s mode of transportation, as provided to the teacher by the child’s parents, on his or her lanyard every day. At the end of the school day, the children are sorted by their mode of transportation and escorted by a designated teacher or paraprofessional. The students are categorized as: car riders, bus riders, walkers, or attendees of the on-site after-school program. August 15, 2018, was the first day of the school year for students at Mirror Lake. At the end of the school day, Petitioner, along with all of the other first-grade teachers, was responsible for assisting his students in reporting to the appropriate location for their respective modes of transportation. On August 15, 2018, Petitioner and Ms. Gresham were both assigned to the car-rider group. While Petitioner and Ms. Gresham were in the car-rider pickup area, Ms. Gresham became aware that a student was missing when a visibly upset parent exited his vehicle having learned that his child was not present for pick-up. Ms. Gresham sought help from the school resource officer and other teachers in an effort to locate the missing student. Principal Veliz testified credibly that this was the first and last time a student was unaccounted for at dismissal at Mirror Lake. Ms. Gresham asked to see the transportation log that Petitioner had compiled for his students to determine how the child was supposed to go home and where the mistake may have occurred. In reviewing Petitioner’s transportation log, Ms. Gresham noticed that the log had some children’s names listed under two different modes of transportation for the same day. As a result, Petitioner’s transportation log did not add any clarity to the situation. Meanwhile, teachers continued to search the campus for the missing student and the school resource officer escorted the father of the missing student to the office to speak with Principal Veliz. Once the student dismissal process was complete for the day, Principal Veliz convened a faculty meeting. During the meeting, the faculty learned that a second student from Petitioner’s class was missing. Principal Veliz adjourned the faculty meeting and assembled the team leaders in the office to assist in locating the two missing students. Petitioner returned to his classroom and did not join the effort to locate the missing students. The team leaders proceeded to call private daycares to ask if the missing students may have been transported to such a facility by mistake. Through these phone calls, both of the missing students were located at the same daycare. Thereafter, the children were reunited with their parents. Principal Veliz met with the parents of the children who had been mistakenly sent to the wrong location on August 15, 2018. Principal Veliz personally paid for the daycare center’s charges with respect to one of the students who had been inadvertently sent there. Principal Veliz testified that the parents were upset that their children had been misplaced and that the parents of one of the children requested a transfer to another first-grade teacher. Ms. Gresham had the opportunity to examine the lanyard belonging to one of the students who had gone missing during dismissal. She observed that Petitioner had written on the lanyard that the student was to ride the bus that day, although the parents had previously informed Petitioner that the student was to be picked up by car. In conducting a routine observational visit to Petitioner’s classroom during the first week of school, Principal Veliz observed conditions that she considered of urgent concern with respect to Petitioner’s academic practices and overall classroom management. She observed a lack of structure, including students in Petitioner’s class wandering around the room and playing with pencils as though they were swords without any redirection. Principal Veliz also observed that Petitioner was using obsolete and ineffective teaching methods. Principal Veliz contacted the school district’s employee relations and talent acquisition office to discuss Petitioner’s employment status. Principal Veliz was notified that Petitioner was still within his one-year probationary term, and that his employment could be terminated without a formal hearing or progressive disciplinary measures. Principal Veliz made the decision to terminate Petitioner’s employment prior to the end of his probationary status based on his unsatisfactory performance. Principal Veliz obtained a form letter from the school district’s human resources department, which she modified to fit Petitioner’s circumstances. The letter was dated August 23, 2018. The letter stated that Petitioner’s name would be submitted to the next School Board meeting for termination of employment during a probationary period and that Petitioner could choose to resign in lieu of termination. Petitioner chose not to sign the document. Petitioner’s employment was terminated at the next meeting of the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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 16th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Rudyard Julius 19101 Northwest 11th Street Pembroke Pines, Florida 33029 (eServed) Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The first issue in this case is whether, as the district school board alleges, a teacher called her students "tonto" or stupid, threw books to the ground and forced students to pick them up, and put her feet and shoes in students' faces; if these allegations are proved to be true, than it will be necessary to decide whether the school board has just cause to suspend the teacher for 10 workdays, without pay.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Walkyria Dolz ("Dolz") had been a teacher for more than 40 years. Having begun her career in Cuba, Dolz emigrated in 1974 from her native country to the United States, where she continued to teach in New York City and Miami. An employee of the Miami-Dade County Public School System for the preceding 15 years, Dolz worked as a music teacher at Riverside Elementary School during the 2008- 09 school year, which is the period relevant to this case. Dolz did not have a classroom of her own at Riverside. Rather, she traveled from room to room, using a cart to transport books and musical instruments. Dolz visited each class to which she was assigned once per week for one hour. In this way, in a given year, she taught hundreds of Riverside students in grades one through five. In her long career, Dolz had never been the subject of a disciplinary proceeding until this matter began. Indeed, she had been (and as of the hearing continued to be) a respected member of Riverside's teaching staff. Much evidence supports this finding, but the following statement, which was written on May 21, 2009, by Riverside's principal, Sharon López, is instructive: Ms. Dolz has been under my supervision as school principal since December 12, 2002. She has always exhibited professional behavior as a classroom teacher and properly represented Riverside Elementary in all school functions off-campus. Ms. Dolz has met standards for classroom observations since her employment as a music teacher at Riverside Elementary in 1998. The allegations [at issue here] are out of character for Ms. Walkyria Dolz. The alleged misconduct primarily giving rise to this case allegedly occurred in November 2008, in a fifth-grade classroom. Based on the stories of several students, the School Board avers that Dolz: (a) attempted to kick a student in the face; (b) waived a sandal in (or at) another student's face; (c) dropped a book to quiet the students; and (d) called the students "tonto," a Spanish word the School Board contends means "stupid." Dolz consistently has denied having done any of these things and testified to that effect at hearing. The young children who testified against Dolz did not impress the undersigned as being accurate and reliable witnesses. The account of R. S.——who claimed that Dolz silently had approached his desk, removed her sandal (while balancing on one foot), and swung the footwear at his face as he sat there in fear, all without saying a single word during the entire event, which lasted at least three minutes (according to R. S.)——was incredible on its face. While it is not inconceivable that Dolz (or any teacher) could snap in the face of some provocation or incitement, the undersigned can neither believe nor find (on this evidence at any rate) that a veteran teacher with a clean disciplinary record suddenly became a bizarre, zombie-like creature for several minutes out of an otherwise ordinary workday and wordlessly set upon a well-behaved student for no reason. Similarly implausible was A. L.'s testimony about the foregoing alleged incident and another where Dolz supposedly nearly kicked a student named L. J. in the face with her foot, while standing on one leg, because L. J. was not playing his instrument properly. A. L.'s testimony in this regard is rejected not only because Dolz, 67, appeared to be physically incapable of kickboxing a child, but also because the undersigned is skeptical that a teacher who has taught for decades without incident——and who has always behaved professionally except, allegedly, in this one instance——would lose control of herself to such a degree merely because of a student's poor musical performance.1 A third student, A. W., testified that Dolz hit R. S. and L. J. on their arms. The School Board itself did not accept this testimony as credible, and neither does the undersigned. A. W.'s lack of credibility on this significant matter undermined his credibility in general. On balance, Dolz was a more credible witness than R. S., A. L., or A. W. The undersigned accepts her denial of wrongdoing as truthful and finds that, more likely than not, Dolz did not attempt to kick or strike any student. The remaining charges are much less serious. Several children testified that, when the students were talkative or inattentive, Dolz threw a textbook on the floor or a table to make a loud noise, which would get the class's attention. Dolz denies ever having done this. The undersigned finds that the evidence is insufficient to prove that Dolz used a textbook to threaten, embarrass, or humiliate a student, or otherwise in a manner that was objectively unseemly, untoward, or unreasonable under the circumstances. Some children testified that Dolz referred to her students as "tonto," an allegation which she denies. There is conflicting evidence concerning the meaning of the word "tonto" in Spanish. While the word can mean "stupid," as the School Board maintains, it also means "silly," as Dolz points out, and, depending on the context, can be used to suggest that someone is acting like a clown or fooling around. Based solely on the evidence presented, the undersigned cannot find that the Spanish term "tonto" is insulting per se, and the absence of any proof regarding the context in which Dolz allegedly uttered the word precludes a finding that she used it in a hurtful manner, if she used it at all. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Dolz is guilty of the offense of misconduct in office as defined in Florida Administrative Code Rule 6B-4.009(3).2 The greater weight of the evidence fails to establish that Dolz is guilty of the offense of unseemly conduct, which is prohibited under School Board Rule 6Gx13-4A-1.21.3 The greater weight of the evidence fails to establish that Dolz is guilty of violating the School Board's Code of Ethics, which is set forth in School Board Rule 6Gx13-4A-1.213.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Dolz of all charges brought against her in this proceeding and awarding her the back pay, plus benefits if any, which accrued while she served the previously imposed suspension of 10 workdays. DONE AND ENTERED this 8th day of January, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2010.
The Issue This is a case in which the Petitioner seeks to terminate the employment of the Respondent, who is a continuing contract teacher, on several grounds alleged in a three-count Notice of Specific Charges. The Respondent is charged in Count I with incompetency; in Count II with gross insubordination and willful neglect of duty; and in Count III with misconduct in office.
Findings Of Fact At all times material hereto, 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 Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times material hereto, Respondent was employed by Petitioner as a teacher-on-special-assignment and a Language Arts (English) teacher within the school district of Miami-Dade County, Florida, assigned to Miami Beach Senior High School, Lake Stevens Middle School, and other work sites within the school district of Miami-Dade County, Florida. Respondent was employed by Petitioner pursuant to a continuing contract of employment and subject to the rules and regulations of the School Board. During the 1992/93 school year Respondent exhibited erratic behavior, mood changes, engaged in altercations with staff, was excessively absent, and chronically arrived late to the Chapter I Office, her assigned work site at that time. On November 6, 1992, a meeting was held with Respondent to notify Respondent that, due to her excessive absenteeism, repeated tardiness, mood swings, and altercations with other staff members, Respondent was being referred to the School Board's Employee Assistance Program (hereinafter "EAP"). At the November 6, 1992 meeting, Respondent became verbally aggressive and combative in her demeanor and stated that, since there was nothing wrong with her, she did not need to go to the EAP. On November 10, 1992, Respondent's then immediate supervisor requested a medical fitness evaluation due to, among other things, Respondent's excessive absenteeism, inability to accept directives, confrontations with staff members, lack of respect for authority, and because of Respondent's refusal to comply with the supervisory referral to EAP. On November 17, 1992, Respondent was directed to report for a Conference-for-the-Record (hereinafter "CFR") at Petitioner's Office of Professional Standards (hereinafter "OPS"). On December 14, 1992, a CFR was held with Respondent to address Respondent's medical fitness to perform assigned duties, as well as her excessive tardiness, excessive absenteeism, and non-compliance with administrative directives. At the December 14, 1992, CFR, it was decided that, because Respondent's duties at the Chapter I office were unclear, Respondent would be given a chance to return to her duties as a teacher-on-special-assignment at the Chapter I Office. At the conclusion of the December 14, 1992, CFR, Respondent agreed to strive to maintain a professional work environment. On January 19, 1993, Respondent's EAP case was closed after Respondent failed to appear at the scheduled EAP conference and after Respondent refused to participate in the program. During the 1993/94 school year, Respondent was assigned to teach an English for Speakers of Other Languages ("ESOL") class at Miami Beach Senior High School. During the first week of school in August of 1993, Respondent became involved in a verbal altercation in front of students after she was told that her classroom had been changed. During the altercation described in paragraph 14 above, Respondent, in front of the students in the classroom, became so upset over being notified of the room change that she screamed and yelled at her Department chairperson and pushed 15 to 20 books off a table. On September 1, 1994, several students in Respondent's ESOL class accused Respondent of directing disparaging statements to them, belittling them, and threatening to have her nephews harm them, if they reported her actions to the school principal. On September 2, 1994, as a result of Respondent's persistent erratic behavior and inappropriate conduct, including, but not limited to, calling students "bastards," and demeaning, accosting, and harassing other teachers in the hallways, the principal at Miami Beach Senior High School requested that Respondent undergo a medical fitness evaluation. On September 14, 1994, Respondent was involved in a verbal confrontation with another teacher at her school in the presence of students. Because of Respondent's agitated and irrational behavior, the other teacher was afraid that Respondent might hit her. Due to Respondent's expressed desire to transfer to a middle school, and because of her continuing behavioral problems, Respondent was transferred to Lake Stevens Middle School with the assistance of the principal at Miami Beach Senior High. Prior to Respondent's transfer to Lake Stevens Middle School, the principal at Lake Stevens Middle school was not informed of Respondent's history of behavioral problems until Respondent was involved in several incidents with other staff members at her new school. On December 4, 1995, a conference was held with Respondent and the school clerk at Lake Stevens Middle School in an attempt to resolve a dispute between the two employees. The conference was held after Respondent had been involved in an altercation with the school clerk. At the December 4, 1995, conference, Respondent was directed to avoid contact or communications with the school clerk unless initiated through a school administrator. On May 4, 1995, during a parent-teacher conference, the conference had to be terminated after Respondent became enraged and started yelling and screaming at the parent, the student, and an assistant principal. Respondent continued screaming even after the parent and student had left and persisted in shouting and yelling at the assistant principal while Respondent followed her around the main office. On February 8, 1996, another conference was held with the Respondent at Lake Stevens Middle School by the assistant principal to address a complaint filed by Respondent against a school secretary. As the conference was about to be concluded, Respondent started shouting and making disparaging remarks against the school secretary, and was generally "out-of-control." On May 2, 1996, Respondent was cited with insubordination after she entered the main office area and started yelling at the assistant principal and refused to cease her tirade after twice being directed by the assistant principal to stop shouting and explain her problem. On May 15, 1996, a formal observation of the Respondent's classroom performance was not conducted because Respondent was unable to provide her lesson plans and grade book to the administrator who was to observe her. Rather than place Respondent on prescription, the principal decided to give Respondent another opportunity to get her documentation in order for another observation. Prior to the May 15, 1996 voided observation, the assistant principal at Lake Stevens Middle School had noted that Respondent did not have her roll book, lesson plans, or student folders during the first thirty days after she had been transferred to Lake Stevens Middle School. During the beginning of the summer school session, on July 8, 1996, Respondent again became involved in a verbal altercation with the school clerk at Lake Stevens Middle School. This second altercation with the school clerk commenced when the school clerk, who was now the principal's secretary, told the Respondent that the Respondent could not walk into the principal's office without first contacting the principal's secretary. When an assistant principal intervened to resolve this altercation, Respondent became irate and refused to leave the assistant principal's office and instead told him to "push" her out. At the end of the school day on July 8, 1996, Respondent again became involved in an altercation with the principal's secretary after the Respondent purposefully pushed the secretary with her briefcase in the main office and thus provoked a verbal altercation, which required the intervention of school administrators. After the school buses had left, on July 8, 1996, the interim principal at Lake Stevens Middle School met with the Respondent to discuss the physical confrontation that had occurred earlier that day and verbally reprimanded the Respondent, advising her that the school administration would not tolerate another incident of this nature. As a result of the July 8, 1996, incident, a personnel investigation was conducted by the Division of School Police, which determined that the charge that Respondent had committed a battery was substantiated. On August 28, 1996, a temporary restraining order was issued against Respondent after Respondent allegedly threatened to kill her former boyfriend, who is also employed on an hourly basis by Petitioner. On October 7, 1996, a CFR was held with Respondent to address numerous incidents involving inappropriate and unprofessional conduct, the personnel investigation on the charge that Respondent had committed a battery, and Respondent's classroom performance and attendance. At that CFR, Respondent was directed to avoid any further altercations (verbal or physical) with other staff members. Respondent was also advised that her failure to comply with previous directives regarding altercations with staff members was considered insubordination and was in violation of School Board rules on employee conduct and violence in the workplace. Respondent was also advised that any further incidents would be considered gross insubordination. At the CFR held on October 7, 1996, Respondent was assigned to her home as an alternate assignment due to her repeated involvement in altercations at the school sites and her unprofessional conduct. Due to Respondent's continued involvement in altercations with other employees--even after being repeatedly directed to avoid same--and because of Respondent's history of erratic behavior at her work site, Respondent was further required to undergo a medical fitness evaluation. On October 8 through 11, 1996, a psychological evaluation was conducted by Dr. Michael Hendrickson, Ph.D., a licensed psychologist. Dr. Hendrickson recommended that Respondent become involved in psychotherapy through the EAP, and that Respondent be required to undergo a neurological evaluation to rule out a neurological basis for Respondent's reported behavioral problems. He also recommended that Respondent be required to undergo psychotherapy once a week for a full year. On October 15, 1996, Respondent was allowed to return to Lake Stevens Middle School. On October 22, 1996, Respondent was formally observed in the classroom and was found to be unacceptable in the categories of preparation and planning, and in assessment techniques in accordance with the Teacher Assessment and Development System. Respondent was prescribed activities to assist her in overcoming her deficiencies. On the day of the formal observation described immediately above, the administrator who conducted the classroom observation noted, among other things, that Respondent's lesson plans were incomplete; that Respondent's grade book did not contain grades for at least two of her classes; that there was no evidence of tests or quizzes given to the students; that students' work was piled on the teacher's desk, table, and cabinets; and that students' folders were incomplete. By November 5, 1996, Respondent had yet to complete the prescriptive activities that had been assigned to her as a result of the formal classroom observation conducted on October 22, 1996. At the and of the school day on December 12, 1996, Respondent approached the school principal, in the presence of students who were just getting into their school busses, and accused the principal of taking part in a plot to fire her and stated that she wanted to be assigned to the region office rather than work at Lake Stevens Middle School. The principal advised Respondent that this was not the appropriate place to hold such a discussion and that she should meet with him later in his office. On December 12, 1996, upon entering the principal's office, Respondent began to cry, used profanity, started shouting and screaming at the school principal, refused to leave the office, and, ultimately, had to be escorted out of principal's office into the main office, where Respondent continued to scream and shout in the presence of parents, students, and staff. While in the main office area on December 12, 1996, Respondent had to be restrained by other staff members after she started directing her verbal attack--in a threatening manner--at a school counselor. Respondent was finally escorted out of the school. On December 17, 1996, a follow-up CFR was held with Respondent to review the results of the psychological evaluation of Respondent and her continued inappropriate and unprofessional conduct as evidenced by her involvement in the December 12, 1996, incident in the main office of Lake Stevens Middle School, and her continuing acts of insubordination. At the December 17, 1996, follow-up CFR, Respondent was directed to attend psychotherapy once a week, for one (1) year, to undergo a neurological evaluation, and to immediately report to the EAP. Because of the school district's concern that Respondent had a propensity for violence, as evidenced by her numerous altercations with other employees, Respondent was also directed to remain on alternate assignment at her home. On January 31, 1997, Respondent was notified that her failure to comply with the administrative directives issued at the follow-up CFR held on December 17, 1996, constituted gross insubordination. Respondent was again directed to comply with the directives listed immediately above, within five (5) work days or face further disciplinary action. On March 6, 1997, Respondent underwent a follow-up consultation with Dr. Hendrickson, the psychologist that had conducted the initial psychological evaluation. The follow-up consultation with Dr. Hendrickson was necessitated by Respondent's continued involvement in altercations with other employees at her work site after she had completed her psychological evaluation on October 11, 1996. After the follow- up consultation, Dr. Hendrickson recommended that Respondent be required to undergo a psychiatric evaluation to assess the cause of her various conflicts and aggressive outbursts. On March 27, 1997, a CFR was held with Respondent to address Respondent's follow-up consultation with Dr. Hendrickson. At this CFR, Respondent was directed to undergo a psychiatric evaluation as a condition of Respondent's continued employment with Petitioner and to report the results of that evaluation within five (5) work days. On or about April 29, 1997, Respondent was directed to report on May 1, 1997, to OPS for a CFR, to discuss, among other things, Respondent's failure to comply with administrative directives regarding her medical fitness to perform assigned duties, specifically Respondent's failure to undergo a psychiatric evaluation, and Respondent's failure to adhere to previously issued administrative directives relative to her unprofessional conduct, and her unacceptable and disruptive behavior. On or about May 1, 1997, Respondent failed to attend the CFR scheduled for that day. The May 1, 1997, CFR was rescheduled to May 2, 1997, after Respondent indicated that she would not attend unless escorted by a police officer because she feared for her personal safety. On May 2, 1997, Respondent was notified that her failure to attend the CFR scheduled for that day would constitute gross insubordination. Due to Respondent's failure to attend the May 2, 1997, CFR, on May 9, 1997, Respondent was directed to attend a CFR scheduled for May 13, 1997, at OPS. Respondent was also advised that her failure to attend the May 13, 1997, CFR would be considered gross insubordination and that Respondent would be subject to dismissal from further employment with Petitioner. Respondent failed to attend the CFR scheduled for May 13, 1997. At its regularly scheduled meeting of May 21, 1997, the School Board of Dade County, Florida, took action to suspend and initiate dismissal proceedings against Respondent on the grounds of incompetency, misconduct in office, gross insubordination or willful neglect of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board of Miami-Dade County, Florida ordering that: Respondent be found to be guilty of incompetency, gross insubordination or willful neglect of duty, and misconduct in office, as charged in the Notice of Specific Charges; Respondent's suspension without pay from employment on May 21, 1997, be sustained and that she receive no back pay for the period of her suspension; and that Respondent be dismissed from all employment with the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998.
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of August, 2018.
Findings Of Fact At all times pertinent to these proceedings, Respondent was employed by Petitioner as a school teacher under a continuing contract of employment. At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise the public school system for Dade County, Florida. Little River Elementary School (Little River) is one of the schools in the Dade County public school system. Respondent began working as a classroom teacher for Petitioner during the 1968-69 school year. She has been employed pursuant to a continuing contract since the 1971-72 school year. Throughout her employment with Petitioner, Respondent was frequently absent from her teaching position without approved leave. During the 1981-82 school year Allen Starke was the principal of North Hialeah Elementary School and Respondent was a classroom teacher at that school. Respondent was counseled about her absenteeism on multiple occasions by Mr. Starke during the 1981-82 school year. Mr. Starke observed that Respondent lacked planning and that her class lacked control because of her frequent absences. For the school year 1982-83, Mr. Starke moved Respondent from her regular classroom to a Chapter One class with fewer students. This move was an effort to cut down the number of Respondent's absences. During the school year 1982-83, Respondent took a leave of absence that lasted more than one year. Mr. Starke had no further contact with Respondent after she took her leave of absence. Margaree Raiford became the principal of Little River, which is an inner city school, in January 1990. Respondent was a classroom teacher at Little River when Ms. Raiford came to the school. Ms. Raiford observed that Respondent's behavior was erratic and that she was frequently absent from school. Ms. Raiford was of the opinion that Respondent had become ineffective as a teacher. Because she had come to Little River after the school year was half completed, Ms. Raiford gave Respondent an acceptable evaluation for the 1989-90 school year. On March 28, 1991, Ms. Raiford wrote the following memorandum to Respondent on the subject of excessive absences: Please be advised that you have been absent from the worksite during the 90-91 school year since February 4th for illness. Since your absence from duties adversely impact the educational environment, academic progress of the students and continuity of instruction, you are herein issued the following directives concerning future absences: Absences for illness must be documented by your treating physician and a written medical note presented to this principal upon your return to the site. Upon return to the worksite, you must provide an unconditional medical release to return to full duties. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. (Emphasis in the original.) These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program. Enclosed is a copy of Request for Leave form. You must process the leave papers within forty-eight hours upon receipt of this memorandum. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures. Ms. Raiford signed an evaluation form for Respondent on May 30, 1991, that covered the 1990-91 school year. She left the evaluation portion of the form blank because Respondent was not at the school site when Ms. Raiford made her formal observation that is part of the evaluation process. Petitioner's Office of Professional Standards was notified of Respondent's absences without leave. On April 17, 1991, Joyce Annunziata, Director of Petitioner's Office of Professional Standards, advised Respondent to schedule a conference with her prior to returning to Little River. The conference was to address Respondent's medical fitness to perform full classroom duties and her future employment status with Petitioner. On May 16, 1991, Respondent was temporarily assigned to the regional office pending her clearance to return to the worksite by the Office of Professional Standards. A conference on the record scheduled for May 21, 1991, did not occur because Respondent broke her foot in an accident outside the regional office on May 20, 1991. Following Respondent's recuperation from her foot injury, the conference on the record that had been scheduled for May 21 was rescheduled for September 21, 1991. Because of a scheduling conflict, the conference for the record was not held until September 23, 1991. The following attended the conference for the record on September 23, 1991: Respondent, Yvonne Perez (a representative of the teacher's union), Ms. Raiford, Dr. Annunziata, and Robert Thomas (the director of the regional office). It was decided that Respondent should undergo medical evaluation to include psychiatric and psychological testing. Respondent was assigned to an alternative work location pending her fitness evaluation. Respondent was examined by Dr. Stephen Kahn, M.D., on October 15, 1991. It was decided that further testing was appropriate and Respondent was referred to Ronald L. Bergman, Ph.D., a clinical and consulting psychologist. Dr. Bergman examined Respondent on November 21 and 22, 1991. Dr. Bergman's report was forwarded to the Office of Professional Standards. Dr. Waldo Ellison, a psychiatrist, began treating Respondent on November 10, 1991, and was still treating her on a regular basis as of April 28, 1993, the date he gave his deposition in this proceeding. Dr. Ellison testified as to the Respondent's psychiatric history, her diagnosis, and her treatment plan. The record failed to establish that Respondent's mental or physical health prevented her from complying with Petitioner's rules and explicit instructions pertaining to taking leave of absence. A report was received from Dr. Bergman and the recommendations that Respondent be transferred was considered. On December 13, 1991, Dr. Annunziata wrote Respondent a memorandum on the subject of her return to teaching. This memorandum provided, in pertinent part, as follows: . . . Please be advised that your alternative assignment is hereby terminated as of December 20, 1991. Region IV has determined that you will return to Little River Elementary School on January 6, 1992, as no other site is available for your transfer. The recommendations stipulated in the report [from Dr. Bergman] are herein made conditions of your employment as follows: Involvement with the recommended program of therapy is to be monitored by district's referral agency. Acceptable attendance at the worksite must be maintained. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined future absences are imminent, leave must be requested and procedures for Board approved leave implemented. Your compliance with the aforementioned directives will be monitored by the Office of Professional Standards as the directives are considered conditions of employment with Dade County Public Schools. Respondent returned to the school site from her temporary assignment following the conference for the record in January 1992. Ms. Raiford had the occasion to issue a written reprimand to Respondent on February 11, 1992, about an incident that is not at issue in this proceeding. Pertinent to this proceeding, the memorandum advised Respondent as follows: "Further incidents of defiance or refusal to comply with a school directive will result in the initiation of disciplinary actions for the record for insubordination." Respondent worked at Little River until March 6, 1992, when she went on unauthorized leave that lasted the balance of the school year. Respondent was absent during the time Ms. Raiford wanted to schedule the observation that is part of the evaluation process. Consequently, Ms. Raiford noted that she was unable to complete the formal evaluation, but recommended that Respondent not be re-employed. On May 19, 1992, Ms. Raiford wrote Respondent the following memorandum on the subject of unauthorized absences from the worksite: Please be advised that to date you have been absent from the worksite since March 6, 1992 for 46 consecutive days. You have not contacted this administrator since April 19, 1992 nor sought Board approved leave. The UTD Contract states: "An employee shall be deemed to be absent-without-leave whenever he/she is absent and has not given prior notice to the appropriate administrator that accrued sick or personal leave is to be used or other leave has been appropriately applied for and approved. Any member of the unit who is willfully absent from duty without leave shall forfeit compensation for the time of such absence and be subject to dismissal." The employment stipulations given to you from the Office of Professional Standards have not been met in regards to acceptable attendance, notification of absence, providing lesson plans, and processing leave. Based on your neglect of duty, failure to adhere to UTD/DCPS contractual obligations, and violation of employment stipulations, I am submitting a recommendation for termination of your employment. In September 1992, the Office of Professional Standards received reports from Dr. Ellison that Respondent was medically released to return to work. Dr. Ellison believed that teaching at Little River exacerbated Respondent's condition, and he made the request on behalf of Respondent that she be transferred to another school. Dr. Ellison thought she could teach in a more orderly, structured school setting where there is better rapport and less stress. Dr. Ellison wanted Respondent assigned to a site other than Little River, but there was no evidence that Respondent could not teach at Little River because of her medical or mental condition. Because of Hurricane Andrew, Petitioner found it difficult to accommodate Respondent's request that she be assigned to another school site, and Respondent was reassigned to teach at Little River. Dr. Annunziata requested that the principal make sure that Respondent's classroom was cleaned and that the air conditioner filter was changed. Respondent returned to Little River in October 1992. She taught approximately one week and then went on unauthorized leave. She did not leave lesson plans when she left, and she did not obtain approved leave. Respondent did not return to Little River. On November 20, 1992, Dr. Annunziata instructed Respondent to schedule a conference for the record. Respondent did not comply with this directive. On November 30, 1992, Ida D. Whipple, Executive Director of the Office of Professional Standards, advised Respondent that the School Board would take steps to terminate her employment due to her unauthorized leave. On February 17, 1993, the School Board voted to suspend Respondent's employment and to initiate the instant proceedings to terminate her employment. Petitioner established that it had repeatedly instructed Respondent of the necessity to comply with leave procedures and that Respondent repeatedly failed to comply with those procedures. Although Respondent may have had legitimate reasons for being absent from school, she did not establish any reasonable grounds for her repeated failure to obtain authorized leave prior to taking these extended absences. Because Respondent did not obtain approved leave, Petitioner's policies prevented the principal from placing a permanent substitute teacher in Respondent's class. As a result, a series of substitute teachers taught Respondent's class. Petitioner also established that Respondent consistently failed to leave lesson plans during her absences. As a consequence of Respondent's repeated absences, the Petitioner's inability to staff her class with a permanent substitute teacher, and her failure to provide lesson plans, there was no continuity of education in her classroom to the detriment of the students. Petitioner established that Respondent's effectiveness as a teacher had been impaired. Petitioner established it returned Respondent to the classroom after she had been given medical clearance to return to work. Respondent thereafter went on unauthorized leave, which triggered Petitioner's decision to terminate her employment. Respondent's contention that the School Board's action on February 17, 1993, was in retaliation for worker compensation claims that Respondent had filed against the School Board is rejected as being unsubstantiated by the record. Respondent failed to fulfill the terms and conditions of her continuing contract, specifically section 3, which provides, in pertinent part as follows: 3. The teacher agrees to teach the full period of service for which this contract is made, in no event to be absent from duty without leave . . . Respondent repeatedly and intentionally refused to obey the School Board Rules and the explicit instructions that had been given to her to request approval for leave and to provide lesson plans. The instructions were reasonable in nature and given by and with proper authority.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which sustains the suspension of Respondent's employment without pay on February 17, 1993, and which terminates her continuing contract. DONE AND ORDERED this 24th day of August, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993.
The Issue The issue in this case is whether just cause exists to terminate Respondent, Charles Staub's (Staub) employment with Petitioner, Lee County School Board (the "Board"), based on violations of Florida Administrative Code Rule 6B-4.009 (3) and (4), for failing to perform duties appropriately, repeated failures to obey direct orders, or misconduct in office.
Findings Of Fact The Board is duly constituted to operate, control, and supervise all free public schools within the school district of Lee County, Florida, pursuant to Article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes.2/ At all times pertinent hereto, Staub was an employee in the school district. The school district has a collective bargaining agreement (the “Agreement”), but Staub is not a paying member of the union covered by the Agreement. Rather, Staub is the member of a professional union having no involvement with the Board. Staub is, however, an “employee” within the collective bargaining unit covered by the Agreement. Staub has been a plumber for over 20 years, receiving his journeyman status around 1980. He worked as a plumber for many years before taking a job with the City of Cape Coral in the wastewater treatment department. He left that position when hired by the Board as a plumber for the school district in 2003. During his employment with the Board, Staub was one of several plumbers in the maintenance department. At the time of the issues relevant to this case, there were six or seven other plumbers in the department. They were supervised by Purvis, who was in turn supervised by Snell. When Purvis was absent, his duties were handled by Cash. It was the duty of the supervisors to give the plumbers job assignments each day. The supervisors were also responsible for prioritizing the job assignments so that the most important assignments were completed first. Each day, the plumbers would gather at the district office for the purpose of receiving their assignments, transferring any needed tools into a district vehicle, and going from school to school to complete their assigned tasks. For most of his career with the Board, Staub exhibited good work habits and did well. That began to change in recent years. Beginning in 2010, Staub began to receive warnings and reprimands concerning his work and his interaction with other employees. Those shortcomings form the basis for the Board’s decision to seek termination of Staub’s employment. The Board has alleged three areas of concern which it feels identify Staub’s shortcomings and failures as an employee of the school district. Facts addressing each of those areas of concern are set forth below. Failure to perform duties as expected On March 22, 2010, Staub replaced a leaking hot water heater at Lehigh High School (“Lehigh”). The existing hot water heater had been on a shelf attached to the wall with brackets. Staub replaced the hot water heater with a new, five gallon heater. However, upon removing the old heater Staub noticed that the shelf brackets were of an inferior quality and were not sufficient to hold the new heater safely on the shelf. Upon completing the installation of the new heater, Staub placed the heater on concrete blocks on the floor rather than placing it on the wall shelf with the inferior brackets. Staub then contacted the Board’s welders to order new brackets which would be “up to code” and would more properly hold the shelf in place. While the brackets were on order, Staub believed the heater could sit on the concrete blocks safely. He did fail, however, to properly install a drain pan for the new heater. He also did not have the pressure relief line properly affixed so as to prevent possible damage if the new heater should leak. Staub also admits to failing to remove a rubber glove he had placed over the smoke detector while he was working on the heater. The building manager at Lehigh complained to Purvis about the work Staub had done on the new heater. Purvis looked at the situation and gave Staub a verbal warning about the quality of his work on the hot water heater. The warning was then reduced to writing, including directions for Staub to return to Lehigh and correct his work. Staub complied with the written directive, correcting all of his work on the job within a couple of weeks. Staub maintains that his work was completely satisfactory. The testimony of Purvis was more persuasive concerning this incident. Insubordination by failing to follow orders of superiors On or about March 28, 2012, Staub and Cash were working on a job at Cypress High School (“Cypress”). A bathroom had flooded and a substantial amount of plumbing work was required to correct the situation. Staub and Cash capped off the water coming into the bathroom in order to prevent further flooding. Then they began the process of making necessary repairs to the walls and floor, including filling holes with concrete. They then began installing new fixtures to replace the ones that had been leaking. At some point during the day, Staub left Cypress to go to a local Home Depot store to buy some supplies needed for the job. While he was gone, Cash –- who was acting as supervisor that day due to the absence of Purvis –- received a call from the building manager at Orangewood Elementary School (“Orangewood”) about a leaking toilet in a special education classroom. The toilet needed to be repaired as soon as possible. Cash called Staub at 11:45 a.m. and told him to go by Orangewood to make the repair before the end of the work day (3:30 p.m.). Staub replied that he would take care of the toilet as directed. When Staub finished purchasing the supplies he needed at Home Depot, he went directly back to Cypress rather than go to Orangewood. Cash had already left Cypress by that time. It was Staub’s intention to “tend” some concrete which was drying in order to continue work on the repairs and the fixture installation. Staub unilaterally decided that the work at Cypress had a higher priority than repairing the toilet at Orangewood. He worked at Cypress until the end of his work day, then returned to the office for end-of-day debriefings. When Staub told Cash he had not gone to Orangewood, Cash was “not happy” with Staub. Cash took the Orangewood work order form, wrote “#1 3/29/12” on it, and gave it back to Staub. The #1 was an indication that the work was to be Staub’s first priority the next day. Staub did as he was instructed, completing the toilet repair on the morning of the 29th. On or about December 6, 2011, at the beginning of the work day, Purvis called the plumbers together for a meeting. After handing out assignments for the day, Purvis told the employees to meet behind the office to help unload materials from a van. He instructed the men not to go to their cars to get tools and equipment prior to unloading the van. All of the plumbers except Staub went immediately to the van to unload it as directed. Staub, however, first went to his car to get his tools for the work day. When Staub didn’t show up at the van with the others, Purvis called Staub on his work cell phone. After three to five calls, Staub finally answered. Purvis asked Staub where he was and Staub said he was at his van. In response, Purvis simply shrugged his shoulders in disgust because he had become tired of Staub’s behavior. When Staub came back to the office area, Purvis called him aside and told him to get on with his work assignments, rather than helping to unload the van. Staub does not remember hearing Purvis say to go to the van prior to getting tools from their cars, but all the other plumbers apparently did. Staub’s testimony in that regard is not credible. Failing to dedicate himself to high ethical standards On or about February 2, 2011, Staub went to Gateway Elementary School for an assigned project. While there, Staub discussed the use of iodine with some of the kitchen staff, pointing out the existence of acids in the iodine. Based upon whatever Staub told the kitchen staff, a complaint was made about Staub to his supervisors. The complaint included allegations that Staub had a poor attitude, provided poor customer service, and did not respond timely. However, there is no credible, non-hearsay evidence in the record to substantiate those allegations. Staub said the kitchen staff specifically asked him about the iodine, and he simply pointed them to the ingredients on the bottle. That explanation lacks credibility in light of the complaints made by staff. However, there is not sufficient evidence in the record to establish what actually occurred. At around the same time, Staub went to Sunshine Elementary to complete an assigned job. While there, he spoke with the kitchen manager concerning a disagreement about a prior work order. The kitchen manager made a complaint to Staub’s supervisors, claiming that Staub treated her rudely. Staub was given a written warning, based on the allegations made by the kitchen manager. Staub said that there was no argument between he and the kitchen manager; they simply discussed a prior work order. There was no testimony from the kitchen worker, so it is impossible to verify what occurred. Again, the absence of direct, non-hearsay testimony precludes a finding that Staub acted in the fashion alleged by the Board. However, in light of the fact that a complaint was filed by the kitchen manager, it is more likely than not that there was some disagreement between her and Staub. On July 19, 2011, at the end of the work day, Staub was sitting in the conference room at the maintenance office along with other maintenance workers. Staub and an employee named Christiansen, a carpenter, began arguing about something. Christiansen was upset with Staub and said something to him about the matter. The men argued briefly and Christiansen began to walk away. As he did, Staub called Christiansen a vulgar name. Christiansen then left the office, followed by all the other employees –- including Staub –- as they went to their private cars to go home. When Christiansen left the parking lot in his car, Staub was close behind him. Christiansen and Staub were both traveling in the same direction, Christiansen, as he headed home; and Staub, as he ostensibly went to a meeting at Shadow Pines Air Park (Shadow Pines). It is alleged that Christiansen was frightened and felt he was being harassed by Staub, but Christiansen did not testify, and there was no non-hearsay evidence presented to verify that allegation. Staub’s written statement made in close temporal proximity to the events mentions the meeting at Shadow Pines, thus giving some credibility to his testimony. Two unsworn, written statements by witnesses –- though insufficient evidence by themselves on which to base a finding of fact –- support Staub’s contention that he remained fairly calm during the argument, up to the point where he called Christiansen a name. An eyewitness to the event, Purvis, remembers Staub yelling the vulgar name at Christiansen. Two employees apparently talked with Christiansen on his cell phone while Staub was tailgating him, but no competent, non-hearsay evidence was offered to prove that fact. There is competent evidence that Staub and Christiansen argued and that Staub drove behind Christiansen as they left work on that day. Further, it is clear Staub called Christiansen a vulgar name. The remainder of the incident was not sufficiently proven by admissible evidence. On September 23, 2011, Staub went to Gulf Middle School (“Gulf Middle”). His daily labor sheet does not include Gulf Middle as a place he worked that day. However, he did go to the high school (“Gulf High School”) which is adjacent to Gulf Middle. Staub walked over to Gulf Middle for the purpose of getting a work ticket signed from a previous day’s job. While at the school, he decided to eat lunch at the school cafeteria. It is a common practice among maintenance workers to eat at the cafeteria of schools where they are working. The building superintendent’s office was in the cafeteria area. The superintendent was not at his office when Staub arrived, so Staub waited on the stage area of the cafeteria for his return. There was a photographer setting up on the stage preparing to take pictures of students and staff. While Staub was there, no one was getting their picture taken. Staub was asked by the teacher supervising the photographer if he would want to pay ten dollars to get his picture made as part of a school fundraiser. Staub at first declined, but then agreed to help the school out by having his picture taken. Later, when the pictures were returned to the school by the photographer, Staub’s picture was included. Because he was an adult, his picture had been placed on an identification badge rather than returning simply as a photograph. The identification badge indicated that Staub was “Faculty” at Gulf Middle. At the time his picture had been taken, Staub was wearing his work uniform which clearly identified him as a Lee County School District employee. He was also wearing his employee badge. Upon receipt of the picture, Purvis turned it over to his supervisor, Snell, because he believed it was inappropriate for Staub to have a Gulf Middle identification card. Snell and Purvis were concerned that something inappropriate was going on vis-à-vis the identification card. Despite their concern, it appears the issue of the picture qua faculty badge was completely innocent. Another allegation against Staub by his supervisors was that Staub frequently failed to sign in when he visited schools to perform his work tasks. When signing in, Staub would sign as “C. Plumber” rather than by his real name. No competent evidence, i.e., school sign-in sheets, was offered into evidence to support the allegation, however. Staub denies the allegation. Staub’s Employment History In 2004 and 2005, Staub’s annual performance evaluations showed him to be “Effective” in all categories of performance. His supervisor wrote “Good man” at the end of those two evaluations. From 2007 until 2009, Staub began to receive less satisfactory evaluations, with many areas of performance marked as “Inconsistently practiced.” In the area of “interpersonal skills” on the evaluation form, Staub received several less than satisfactory scores. Then, in 2010, the evaluation indicated that all areas were again in the Effective category. The 2011 evaluation, however, was a different story. Staub received “Unacceptable level of performance” scores on two benchmarks in the interpersonal skills area. Three of the skills in that portion of the evaluation form were marked as “inconsistently practiced.” The evaluation form contained an addendum outlining three written sanctions that had been issued to Staub: 1) A formal verbal warning for unsatisfactory work; 2) A written warning related to the customer complaint at Sunshine; and 3) A written warning regarding the incident at Gateway. The supervisor said that, “While [Staub] meets the standard for the skills required to be a plumber, he is below standard regarding customer service.” Staub received a verbal warning (April 13, 2010), and four written warnings (two on February 14, one each on October 26, and December 6, 2011). His personnel file also contains several reports of improper work, unacceptable behavior, and conflicts with other employees. The Board properly followed its protocol for progressive discipline concerning the actions it took against Staub. Other than the formal incidents set forth above, there is an underlying tone of coolness between Staub and the witnesses who testified. It does not appear that Staub gets along well with his fellow employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, reversing its decision to terminate the employment of Respondent, Charles Staub for the reasons set forth above. DONE AND ENTERED this 11th day of December, 2012, in Tallahassee, Leon County, Florida. S 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 11th day of December, 2012.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
The Issue Whether Arthurine Brown (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade School Board (the School Board) on July 3, 2013, and whether the School Board has good cause to terminate Respondent's employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. NMSHS is a public school in Miami-Dade County, Florida. During the 2012-2013 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. The School Board assigned Respondent to a self-contained, special education classroom at NMSHS taught by Dorothy Roberts. Respondent has worked at NMSHS as a paraprofessional since 2004. During the 2012-2013 school year, paraprofessionals Frantzso Brice and Larry Eason were also assigned to Ms. Roberts' classroom. Ms. Roberts' class consisted of 13 special needs children with varying exceptionalities. The vast majority of Ms. Roberts' class was of Haitian descent. Ms. Roberts' students included P.P.C. (the Student), a non-verbal child on the autism spectrum. The Student is a 14-year-old male who functions at the level of a two or three-year-old child. On January 17, 2013, Ms. Roberts, Mr. Brice, and Respondent were in the process of escorting children into the classroom for the beginning of the school day when an incident involving Respondent and the Student occurred. Ms. Roberts, Mr. Brice, and Respondent were in the classroom when the incident occurred. Mr. Eason was not in the classroom when the incident occurred. After the Student entered the classroom at approximately 7:15 a.m., he picked up Respondent's purse from a table and went towards a window. What happened next is in dispute. The greater weight of the credible evidence established that Respondent cornered the Student, grabbed him by the throat with her left hand, and slapped him in the face using the palm of her right hand. Ms. Roberts heard the sound of the slap. Ms. Roberts and Mr. Brice described the slap as being very hard. Ms. Roberts heard Respondent warn against "touching her fucking shit." Mr. Brice heard Respondent warn against "touching her fucking stuff." 1/ Immediately after the incident, the Student had tears in his eyes, but his face had no observable bruising or swelling. Ms. Roberts immediately reported her version of the incident to Michael Lewis, the principal of NMSHS. After talking to Ms. Roberts, Mr. Lewis interviewed Respondent in Ms. Roberts' classroom, without Ms. Roberts being present. Mr. Lewis removed Respondent from the classroom, and instigated an investigation that culminated in this proceeding. Respondent had no justification for striking the Student. During the 2012-2013 school year, Respondent repeatedly used profanity in front of students and co-workers. Ms. Roberts repeatedly told Respondent to stop using profanity, but Respondent did not heed that instruction. During the 2012-2013 school year, Respondent repeatedly made derogatory remarks about Haitians. Respondent stated that she was tired of working with "fucking" Haitians and declared that Haitians were dumb, stupid, and should go home. Mr. Brice, who is Haitian, felt disrespected by Respondent's disparaging statements. At its regularly scheduled meeting on May 8, 2013, the School Board suspended Respondent's employment and instituted these proceedings to terminate her employment.
Recommendation Based on the foregoing findings of fact and conclusions of law: It is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Arthurine Brown and terminates that employment. DONE AND ENTERED this 30th day of September, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2013.
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2016.
The Issue Whether Respondent engaged in the conduct alleged in the Administrative Complaint. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida. Respondent's Teacher Certification Respondent is a teacher by profession. She holds a certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that she is eligible to teach in the State of Florida in the areas of early childhood education, elementary education, ESOL, and exceptional education (specific learning disabilities, emotionally handicapped, and mentally handicapped). The certificate's "validity period" is July 1, 1993, through June 30, 1998. Respondent's Employment History Respondent has been employed by the School District since August of 1987. She holds a professional services contract. She is currently under suspension (without pay) pending the outcome of this disciplinary proceeding. For the duration of her employment with the School District, Respondent has held an instructional position at Forest Hill Elementary School (Forest Hill), the principal of which, since the 1988-89 school year, has been Linda Hardy. During her early years at Forest Hill, Respondent taught emotionally handicapped students. Having to deal with these special-need students, however, became too stressful for her. She therefore was moved to the regular education program at the school and served as a regular fifth grade classroom teacher until her removal from the classroom in November of 1996 when the school administration learned of the criminal conduct in which she had engaged the month before (that is described in the Administrative Complaint). Respondent's Classroom Performance Respondent's classroom performance at Forest Hill was erratic. Principal Hardy had various informal conferences with Respondent during which she identified for Respondent those areas of Respondent's performance in which improvement was needed. Respondent's performance in these areas would improve and reach a satisfactory level following each conference, but only for a limited period of time, after which it would decline again, thereby necessitating the convening of another conference. As Principal Hardy stated in her testimony at the final hearing, Respondent's performance was "like a roller coaster." Respondent nonetheless received an overall satisfactory rating on every annual written evaluation she was given while at Forest Hill. There were, however, on each of these evaluations, "areas of concern" noted.1 These "areas of concern" primarily involved Respondent's interaction with students, parents and colleagues. Respondent's Prior Disciplinary Record Prior to her removal from the classroom in November 1996, the only discipline she had received was a written reprimand for failing to timely submit lesson plans and other paperwork. Respondent's Rejection of the Suggestion to Participate in the Employee Assistance Program Particularly during the latter part of the period that she served as a regular classroom teacher, Respondent had difficulty coping with the stress she was experiencing in both her professional and personal lives. Principal Hardy, in whom Respondent had confided about these problems, suggested on more than one occasion that Respondent utilize the services of the School District's Employee Assistance Program. Respondent declined to follow Principal Hardy's suggestions. She advised Principal Hardy that it was unnecessary for her to seek assistance from the Employee Assistance Program since she was "seeing her own doctor" to help her with these problems. The Granting of Respondent's Request for Extended Leave By letter dated November 8, 1995, which read, in pertinent part, as follows, Respondent requested an extended leave of absence from her position with the School District: Effective 11-8-95, I am requesting a temporary leave of absence from my fifth grade teaching position at Forest Hill Elementary School (0621). At the present time it would be in the best interest of my students if I take a temporary leave of absence. During this temporary leave of absence I will be under the care of Doctors Jeanne Yetz [and] Mark Ellinger . . . . Respondent was granted a leave of absence from November 8, 1995, until January of 1996. Respondent's Mental Health Dr. Mark Ellinger is a clinical psychologist who has been treating Respondent (using psychotherapy) since August of 1994, for problems relating to mood, interpersonal relations, and substance abuse and dependence. Dr. Ellinger's treatment has been supplemented by medication (to reduce anxiety and for depression) prescribed by a psychiatrist, Dr. Jeanne Yetz. Over the period of time that she has been treated by Drs. Ellinger and Yetz, Respondent's condition has worsened. Dr. Ellinger's original diagnosis, at the time treatment began, was depressive disorder NOS (Not Otherwise Specified), a very mild disturbance. His secondary diagnosis was post-traumatic stress disorder. (Respondent related to Dr. Ellinger that, during her childhood, she had been sexually molested and verbally and physically abused.) More recently, in October of 1997, Dr. Ellinger determined that Respondent was suffering from major depression recurrent, borderline personality disorder, and cannabis dependence (in partial remission). Major depression recurrent is the most severe form of depression. Borderline personality disorder is also a very serious mental illness. It can extend over a lifetime and is difficult to treat effectively. Persons with borderline personality disorder struggle to control their anger and rage and to act appropriately, particularly in their dealings with others. As a result, they have difficulty maintaining stable interpersonal relationships. Cannabis dependence is a maladaptive pattern of marijuana use leading to clinically significant impairment or distress. It is more serious than cannabis abuse, which, unlike cannabis dependence, involves merely periodic, rather than ongoing, marijuana use. On November 5, 1997, Dr. Ellinger filled out a Functional Capacities Evaluation form (FCE Form) describing Respondent's abilities in the following areas: Ability to relate to other people; Restriction of daily activities, e.g. ability to attend meetings, socialize with others, attend to personal needs, etc.; Deterioration of personal habits; Constriction of interests; Understand, carry out, and remember instructions; Respond appropriately to supervision; Perform work requiring regular contact with others; Perform work where contact with others will be minimal; Perform tasks involving minimal intellectual effort; Perform intellectually complex tasks requiring higher levels of reasoning, math and language skills; Perform repetitive tasks; Perform varied tasks; Makes independent judgment; Supervise or manage others; Perform under stress when confronted with emergency, critical, unusual or dangerous situations; or situations in which working speed and sustained attention are make or break aspects of the job; and Ability to work relative to the attached job description. Dr. Ellinger indicated on the FCE Form that Respondent had a "mild" impairment ("[s]uspected impairment of slight importance which does not affect functionality ability") in areas 3, 11, and 12; a "moderate" impairment ("[i]mpairment affects but does not preclude ability to function") in areas 4, 5, 8, 9, and 10; and a "moderately severe" impairment ("[i]mpairment significantly affects ability to function") in areas 1, 2, 6, 7, 13, 15, and 16.2 Dr. Ellinger sent the completed FCE Form to the "claims advisory agent" representing the insurance company with whom Respondent had filed, in May of 1997, after the initiation of this disciplinary proceeding, a claim seeking disability insurance benefits. Dr. Ellinger also completed and sent to the "claims advisory agent" a Mental Status Supplemental Questionnaire (Questionnaire), in which he stated, among other things, the following: She [Respondent] continues to struggle with the above listed problems [problems relating to mood, substance abuse and interpersonal relations] and those have gone on for years. Mood is intermittently depressed, anxious and irritable. Thinking processes are intact with some moderate deficit due to mood disorder and stress of medical problems. Intelligence is normal. Perception shows some deficits and judgment has been poor in recent past evidenced by legal problems. Behavior has been impulsive and aggressive. He also indicated in the completed Questionnaire that one of Respondent's "treatment goals" was to "develop [a] new career due to [her] disability." It is important for Respondent to "develop [a] new career" inasmuch as her deep-rooted and severe mental health problems have significantly impaired her ability to function effectively as a classroom teacher.3 Respondent's Relationship with the Scrivos In 1996, Respondent moved into an apartment building on Seapine Way (Seapine Apartments) in Greenacres, Florida. Living in the apartment directly beneath Respondent's was the Scrivo family: Joseph, Sr. (Joe); his wife Dana; and their children, Joseph, Jr., and Gianna. Joseph, Jr., and Gianna are now three and eight years of age, respectively. Gianna is now, and has been at all times material to the instant case, a student at Forest Hill. After moving into the Seapine Apartments, Respondent began to socialize with the Scrivo family and became friends with Dana. Respondent, however, did not get along well with Joe. Joe said things to Respondent that Respondent considered to be insulting. She also suspected that Joe was the person who was leaving the pornographic material she started to find at her front door in the morning. (In fact, Joe was not the culprit.) The Scrivos' Separation In the summer of 1996, Joe and Dana had marital problems. As these problems escalated, Joe began to secretly tape record Dana's telephone conversations at home. With Respondent's assistance, Dana discovered that Joe was making these tape recordings. On August 7, 1996, Joe and Dana separated. Dana and the children remained in the Seapine Way apartment. Joe moved into a trailer located at 6074 South 16th Way in West Palm Beach. Dana obtained a restraining order against Joe. The restraining order prohibited Joe from having contact with Dana, except to the extent that such contact was necessary for Joe and Dana to discuss and to tend to the needs of their children. Dana made Respondent aware of the fact that she had obtained a restraining order against Joe. Joe's October 23, 1996, Visit to the Seapine Apartments Gianna had trouble dealing with her parents' separation. On the evening of October 23, 1996, Gianna was particularly upset. Dana telephoned Joe and told him that she wanted to speak to him in person about Gianna. Later that evening, Joe drove to the Seapine Apartments to meet with Dana. Respondent saw Joe in his van outside the apartment building. She telephoned the police and reported to them that Joe was on the grounds of the Seapine Apartments in violation of a restraining order that had been issued against him. When the police arrived on the scene, Joe and Dana were in Joe's van talking to one another. The police questioned Joe and then spoke to Dana. Dana told the police that she had requested the meeting with Joe to talk to him about the emotional problems their daughter was experiencing. She further informed the police that the restraining order did not bar Joe from meeting with her to discuss such a matter. The police left without taking any action. The Vandalizing of Respondent's Car The following afternoon, Thursday, October 24, 1996, Joe left town to visit his aunt in Key West, Florida. Sometime after Joe left town, during the evening of October 24, 1996, or the morning of October 25, 1996, before approximately 7:45 a.m., the front of the exterior of Respondent's automobile was damaged while the automobile was parked in the parking lot outside her apartment. It appeared to Respondent, who discovered the damage at approximately 7:45 a.m. on October 25, 1996, as she was about to get into her car and drive to work, that someone had thrown paint remover on the car. Respondent reported the damage to the police and then drove to work. After work she went to a body shop to obtain an assessment of the damage that had been done to her automobile. She then returned home. The "Trashing" of Joe's Trailer and the Theft and Use of Joe's Credit Cards From the time she returned home until the early morning hours of Sunday, October 27, 1996, Respondent remained awake and stewed about what had been done to her car. She felt as if she had been "violated." The more she thought about it, the more upset and angrier she became. Although she was experiencing these negative feelings, Respondent believed that there was no immediate need to seek the assistance of Dr. Ellinger, with whom she had an appointment scheduled for the following week. She thought that this situation "was something that [she] could actually work through" herself. As it turned out, she was wrong. Respondent erroneously believed that it was Joe who had damaged her automobile and she decided to get even with him by doing damage to his possessions. She knew that Joe was out of town, so, during the early morning hours of Sunday, October 27, 1996, she drove to Joe's trailer with the intention of vandalizing it and its contents. Upon arriving at her destination, she broke into the trailer and, in accordance with her plan, proceeded to willfully and maliciously do extensive damage to the interior of the structure and the possessions of Joe's that were in the structure. Among other things, she flooded the trailer by stopping up the sinks, turning on the faucets, and letting the water run; spread and smeared food items that were in the refrigerator on the floor, walls, ceiling, furniture, and photographs, including photographs of the Scrivo children; slashed Joe's clothes and his bed with a knife; and damaged electronic equipment. In addition, she stole from the trailer three of Joe's credit cards, which she subsequently used to purchase, by fraudulent means, in excess of $300.00 worth of merchandise. Respondent's "trashing" of Joe's trailer and her theft and fraudulent use of his credit cards was related to her mental illness, which made it difficult for her to control her emotions and to exercise restraint (although she knew what she was doing and that her actions were wrong). Respondent engaged in this conduct, notwithstanding that she was at the time, and had been for approximately the previous 26 months, under the care of, and receiving treatment from, Drs. Ellinger and Yetz. In fact, Dr. Ellinger had specifically counseled Respondent to make every effort to avoid being provoked by Joe. There is no guarantee that Respondent will not engage in similar inappropriate conduct in the future. Indeed, given the nature of her mental illness, it is more likely than not that she will. The Discovery of Respondent's Crimes Respondent also took from the trailer, when she left after her rampage, three or four audio cassette tapes that Joe had used to secretly tape record Dana's telephone conversations before their separation. Respondent left the tapes outside the front door of Dana's apartment along with a note which read as follows: These are the tapes that Joe used to record your phone conversations. From a friend. When Dana found the tapes and read the note she figured that someone had broken into Joe's trailer. She suspected Respondent as having been the culprit because, to Dana's knowledge, other than Joe and her herself, only Respondent and a friend of Dana's who lived in New Jersey knew of the existence of the tapes. Dana asked two of her downstairs neighbors who were friendly with Joe to go check on Joe's trailer. They agreed to do so. Some time later, one of them returned and informed Dana that Joe's trailer was flooded and that the police had been called to the scene. The other neighbor telephoned Joe, who was still in Key West, and told him about the damage to his trailer. Joe returned home immediately. Respondent's Post-Incident Conduct Respondent did not want anyone to know what she had done. She therefore initially told no one, not even Dr. Ellinger, about her "trashing" of Joe's trailer and her stealing and subsequently using his credit cards. While she remained quiet about her wrongdoing, she was not reluctant to complain to others about what she perceived to be Joe's harassment of her. On or about October 29, 1996, Respondent applied for and obtained in Palm Beach County Circuit Court an ex parte restraining order against Joe. The restraining order was later dismissed on November 12, 1996, after a hearing on the matter, in which both Joe and Respondent participated. On November 22, 1996, the police came to Forest Hill to speak with Respondent about the events of October 27, 1996. After being read her Miranda rights, Respondent agreed to give a statement to the police. At first, Respondent denied breaking into Joe's trailer. Not long thereafter, however, she retracted her denial and admitted to the police what she had done. Following the interview, the police advised Respondent that they would be seeking the issuance of a capias for her arrest. The police told Principal Hardy of their intention to effect Respondent's arrest. Principal Hardy thereupon directed Respondent not to return to the classroom and informed her that she was being reassigned (with pay) to her home until further notice. Later that day, Respondent saw Dr. Ellinger and for the first time told him about her destructive behavior at Joe's trailer during the early morning hours of October 27, 1996. (She subsequently, on December 16, 1996, told Dr. Ellinger about the credit cards she had stolen and then used.) The District Meeting and Meeting of the Professional Standards Committee Principal Hardy brought the matter of the police investigation of Respondent to the attention of the School District's Department of Employee Relations. The Department of Employee Relations determined that a pre-disciplinary meeting should be held with Respondent. Such a pre-disciplinary meeting was ultimately held on March 18, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County Teachers Association, Respondent and her attorney. At the meeting, Respondent admitted to breaking into Joe's trailer and "trashing" it and to stealing Joe's credit cards and using them to make purchases in excess of $300.00. In attempting to explain why she had engaged in such conduct, Respondent claimed that Joe had taunted, stalked and harassed her prior to the incident. In addition, she advised that she was under the care of a psychologist, Dr. Ellinger, whom, she stated, the School District could contact if it so desired. After hearing from Respondent, the School District representatives at the meeting determined that there was probable cause for the matter to be presented to the School District's Professional Standards Committee for its recommendation. After having considered the matter, the Professional Standards Committee recommended to the School District's Superintendent of Schools that action be initiated to terminate Respondent's employment with the School District. The Superintendent's Action On April 14, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows: Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an instructor. You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between the School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon the following actions (criminal or otherwise): First, you admitted to breaking into a trailer and "trashing it." Second, you admitted to stealing a credit card and using it to make purchases in excess of $300.00. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B-1, Florida Administrative Code. Please be advised that I will recommend at the May 7, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective May 8, 1997, and that the termination of employment will become effective upon the expiration of fifteen days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes. The May 7, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at 5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (561) 434- 8139, of your intention to make a presentation at that meeting. Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter. On April 22, 1997, the Superintendent of Schools executed a Petition for Dismissal, which contained the following "administrative charges" and "demand for relief": ADMINISTRATIVE CHARGES Petitioner, Dr. P. Kowal, alleges as follows: Respondent, Debora Woessner, admits to breaking into a trailer and "trashing it." Respondent also admits to stealing a credit card and using it to make purchases in excess of $300.00. The above-described conduct violated Section 231.36(1)(a), Florida Statutes (1995), the Respondent's contract, the Palm Beach County School Board's Rules and Regulations, and the Code of Ethics of the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code. Just cause exists for the requested relief, pursuant to Section 231.36(1)(a), Florida Statutes; Article II, Section M, of the collective bargaining agreement between the School District and the Palm Beach County Classroom Teachers Association; the School Board's Rules and Regulations; and Rule 6B- 4.009, Florida Administrative Code, in that Respondent has engaged in misconduct, criminal and otherwise, which is inconsistent with the standards of public conscience and good morals, to wit: destruction of property, breaking and entering, and theft. DEMAND FOR RELIEF WHEREFORE, Petitioner, Dr. Joan P. Kowal, Superintendent of Schools, recommends that the School Board of Palm Beach County, Florida, immediately suspend Respondent, Debora Woessner, without further pay or benefits. The Petitioner recommends that the School Board, subsequent to providing the requisite notice, dismiss, the Respondent, Debora Woessner, from her employment as an instructor predicated upon the foregoing facts and legal authority. By letter dated April 28, 1997, which read as follows, Respondent, through her attorney, requested a hearing on the Superintendent of School's recommendation: Our office has been retained for the purpose of representing Ms. Debora Woessner before the School Board of Palm Beach County, Florida, with respect to the issues raised in the Superintendent's letter dated April 14, 1997, charging Ms. Woessner with misconduct. Ms. Woessner denies that there is any basis to support the Superintendent's recommendation for suspension without pay and contests the recommendation for her dismissal. Ms. Woessner requests that a hearing be conducted with respect to all issues raised by the charges described above and her defense to the charges, and requests such a hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before a hearing officer appointed by the Division of Administrative Hearings. I will speak on Ms. Woessner's behalf at the School Board meeting scheduled for May 7, 1997, when the Board will consider the propriety of the recommendation for suspension without pay and dismissal from employment. The Criminal Proceedings After the conclusion of the police investigation of the "trashing" of Joe's trailer and the theft and use of his credit cards, the matter was turned over to the State Attorney and Respondent was criminally charged (in Palm Beach County Circuit Court Case No. 96-13985CFA02) with one count of felony criminal mischief and one count of grand theft. Respondent entered a guilty/"best interest" plea to both counts. An Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered in Palm Beach County Circuit Court Case No. 96-13985CFA02 on April 23, 1997. The order placed Respondent on probation for a period of five years "concurrent with each count." Among the conditions of her probation were that she have "no contact" with Joe and that she pay Joe restitution in an amount to be determined following a hearing on the matter. Such a hearing was held on May 16, 1997, after which an order was entered which provided as follows: THIS CAUSE having come before the Court for a restitution hearing and this Court having [pr]esided at said hearing on May 16, 1997, it is hereby ORDERED AND ADJUDGED that Defendant, Debora Woessner, pay to the victim, Joseph Scrivo, restitution in the amount of $30,238.92. Restitution is to be a condition of the Defendant's probation sentence and shall be paid monthly in the minimum amount of $10 per month, commencing July 1, 1997 and continuing until paid in full. Publicity Respondent's criminal conduct was widely publicized in the community. It was reported in the newspaper and received television coverage. One particularly aggressive television news reporter attempted to interview Forest Hill students on school grounds to obtain their reaction to Respondent's wrongdoing. After the reporter was directed to leave, he stationed himself across the street from the school, where he interviewed students on their way home following the end of the school day. In addition, someone distributed in the neighborhood surrounding Forest Hill fliers which denounced Respondent as being unfit to teach as a result of her criminal conduct. Impaired Effectiveness Teachers serve as authority figures and role models for their students. Respondent's ability to effectively serve as a positive role model for her students has been seriously impaired by her widely publicized criminal conduct. The May 7, 1997, School Board Meeting The Superintendent of Schools' recommendation regarding Respondent's future employment was discussed at the Palm Beach County School Board's May 7, 1997, meeting. At the May 7, 1997, meeting, Respondent's attorney argued that the School Board was prohibited by the Americans with Disabilities Act (ADA) from taking adverse action against Respondent and that it was required by the ADA to provide her with an accommodation. The School Board decided not to take any action on the Superintendent of School's recommendation regarding Respondent's future employment until it received further information concerning Respondent's entitlement to protection under the ADA. Correspondence Concerning Respondent's ADA Claim On May 9, 1997, the School District's General Counsel sent Respondent's attorney a letter, which read as follows: On Wednesday, May 7, 1997, you appeared before the board on behalf of Debora Woessner. That evening you advised that Ms. Woessner had sought an ADA accommodation, and that her rights were violated due to the District's failure to accommodate her. As of today's date, we have had no information regarding this employee's request for an accommodation. No later than Monday, May 12, 1997, we would request a letter via facsimile to the attention of Dianne Howard, our Risk Manager, at (561) 434-8103 with regard to the following: Please outline the nature of your client's disability. Please outline how this disability affects her major life activity. Please advise as to the accommodation she is seeking. This information is critical for the District's consideration of your request. The consideration must be arrived on or before May 16, 1997. If this information is not received by Monday, and the meeting cannot be scheduled before May 16, 1997, th[e]n termination which was predicated on criminal activity, admitted by your client, will proceed at the next regularly scheduled Board meeting on May 21, 1997. Respondent's attorney responded to this letter from the School District's General Counsel by letter dated May 12, 1997, which read as follows: I am in receipt of your letter of May 9, 1997 regarding Debora Woessner. For clarification, my statements to the Board indicated that Ms. Woessner was requesting, through her attorney, an accommodation. I further stated that Ms. Woessner was in possession of School Board Policy 3.06, and that the School Board should allow the District's ADA process to run its course before making a decision regarding Ms. Woessner's termination. I did not state that Ms. Woessner's rights had been violated. I stated that the Board should delay acting on the recommendation so that Ms. Woessner's rights would not be violated. Regarding your statement that the District has no information regarding Ms. Woessner's request for an accommodation, I stated at the meeting that (1) Ms. Woessner has been diagnosed with a psychiatric disability specifically defined by the DSM IV, (2) this disability affected a major life activity, i.e., interacting with people, (3) the actions for which the Superintendent recommended discipline for Ms. Woessner were directly related to her disability, (4) my client was directly in the process of getting information required by the district from the individual treating her for her disability, and that the district would be informed as to what accommodation was appropriate. Regarding the request contained in the letter, I spoke with Darren Edwards of your office on the afternoon of May 9, 1997 and informed him that Ms. Woessner would provide the requested information as early as possible. As I have previously informed you, and as I informed Mr. Edwards during the aforementioned conversation, Ms. Woessner obtained a copy of School Board Policy 3.06, and is in the process of complying with its dictates. Because of the nature of the information required by the Policy and the strictness of the Policy, it is not possible for Ms. Woessner to comply with your request that she have all information you requested in Ms. Howard's office by this afternoon. I would further note that this is the first time in the many instances in which I have dealt with the Palm Beach County School District on ADA accommodation questions that a deadline has been imposed on an employee. I have checked Policy 3.06 and can find no mention of a deadline within which an employee must provide the requested information. In short, it appears that Ms. Woessner has been singled out for special treatment. I consider this to be not only inappropriate, but possibly unlawful. I would also point out that your request implies that the information requested should come from me, Ms. Woessner's attorney, and not a mental health counselor. In short, it is my client's intention to comply with the District's ADA policy as quickly as possible. If you have any questions regarding this matter, please do not hesitate to contact my office. In a letter sent to Respondent's attorney on May 12, 1997, the School District's General Counsel acknowledged receipt of his May 12, 1997, letter and further stated the following: Ms. Woessner was reassigned to her home with pay in November, 1996. Over the past six months, and during several conferences with Ms. Woessner, there has never been any mention of her alleged disability or request for an accommodation. The principal confirmed that during the last nine years, Ms. Woessner never indicated she suffered any mental disability. Certainly no request for an accommodation was ever made. However, Ms. Woessner was very aware of our ADA policy since she had requested on prior occasions, ADA accommodations for her allergies. Irrespective of the ADA claim which has only recently been made, Ms. Woessner acknowledged her actions which comprise the felony charges against her. After admitting to the charges, termination proceedings were commenced. It was only at the eleventh hour, when the Board was asked to proceed with her termination of employment, did you state that Ms. Woessner was suffering from a disability. Although the administration sought termination related to Ms. Woessner's admitted criminal behavior, we agreed to consider your request on your client's behalf. We asked you to specify the nature of the disability, how it affected a major life activity, and the specific accommodation she was seeking. Your letter to the District indicates that this information will not be provided in the time frame requested. As a matter of law and in accordance with the very same case you cited (Hindman v. GTE), the District has never been made aware of the disability allegedly suffered by your client at the time of the incident, at the District meeting, or when she was notified of the termination proceedings. There was no request for an accommodation which specifies the accommodation, as required by the ADA either prior to her criminal behavior, nor after she was notified in April of the termination proceedings. The District will proceed with the termination proceedings on May 21, 1997. On May 21, 1997, ten to fifteen minutes before the start of the School Board meeting scheduled for that day, Respondent's attorney handed the School District's Chief Personnel Officer a letter addressed to Diane Howard, the School District's Director of Employee Benefits and Risk Management, which read as follows: Enclosed please find a copy of an affidavit executed by Dr. Mark Ellinger. Dr. Ellinger is Debora Woessner's psychologist and has provided the affidavit to assist Ms. Woessner in obtaining an accommodation for a disability pursuant to School Board Policy 3.06. Ms. Woessner is a teacher assigned to Forest Hill Elementary School, and holds a Professional Services Contract. Her Social Security Number is . . . . As you can see from the Affidavit, Ms. Woessner has had some recent difficulties related to her disability, and has been recommended for suspension without pay and termination by the District. Ms. Woessner's position, which is supported by her Doctor, is that the actions for which she is being terminated are directly related to her disability and that she can continue her teaching position if she is provided with a reasonable accommodation. Ms. Woessner has already provided her doctors with releases so that the School Board can obtain her medical records. Dr. Ellinger's address and telephone number are as follows: . . . . I will provide you with similar information for Dr. Yetz in the near future. Please keep in mind that this correspondence, and the attached affidavit, are confidential pursuant to both the Americans with Disabilities Act and Florida Statutes. As such, copies may not be provided to the press, or any individual not involved with making a determination of whether Ms. Woessner is entitled to an accommodation. If you have any questions regarding the matter covered in this letter or the affidavit, please do not hesitate to contact my office. The affidavit of Dr. Ellinger, which was appended to letter, read as follows: I am a clinical psychologist working in Palm Beach County, and have been treating Debora Woessner since August 15, 1994, for mood and substance abuse problems. In addition to being treated by me, Ms. Woessner sees Dr. Yetz, a [p]sychiatrist, for medication. The specific diagnos[e]s for Ms. Woessner are Depressive Disorder, not otherwise specified (311.00 DSM IV) and Cannabis Dependence (304.30, DSM IV) with sustained partial remission.4 The medication Ms. Woessner takes significantly reduces the severity of her disorder.5 Ms. Woessner's disorders are directly related to her to having grown up in a situation where she was physically and psychologically abused, which later manifested itself in psychiatric problems such as depression, substance abuse, and relationship problems. Ms. Woessner's disorders interfere with her ability to interact with others, and impact her work. More specifically, Ms. Woessner's disorder, particularly in the absence of the medication prescribed by her psychiatrist, significantly restricts her ability to interact with others as compared to the average person in the general population. Ms. Woessner was involved in an incident in November of 1996 where she damaged a man's trailer and used his credit cards to make purchases without his assent. Had it not been for her abusive childhood and its subsequent psychiatric illness, Ms. Woessner would not have acted out in such an aggressive manner. Her psychological problems directly caused and are related to the incident that occurred in November. It is highly unlikely that Ms. Woessner will repeat such actions in the future.6 Ms. Woessner is a good, dedicated and caring professional who genuinely wants the best for her students. Her profession has always given a sense of pride, meaning and structure to her life. Ms. Woessner loves her work, which is a central part of her identity. Ms. Woessner has been a hard worker in psychotherapy and has with tenacity chipped away at her various problems with success. She has been consistent in therapy and follows up on recommendations to better herself and resolve her problems.7 Ms. Woessner does not represent a threat to herself or anyone and her problems are treatable. Ms. Woessner should receive a leave of absence until the beginning of the 1997-1998 school year so that she can resolve her problems. During this time, Ms. Woessner will be treated for her problems and will undergo testing to ensure that her problems have been resolved.8 It was not until September of 1997 that Howard received the May 21, 1997, letter from Respondent's attorney's and the attached affidavit of Dr. Ellinger. Upon receiving these documents, she prepared and then sent to Respondent's attorney the following written response: I am in receipt of your letter dated May 21, 1997 and directed to my attention. I am sorry for the delay in response, however, I just received this letter on September 17. It came to my attention through our Legal Counsel as they were preparing for a hearing. I am sorry I never received this before, but I will try to answer it now. Your letter indicates you are asking for an accommodation for Debora Woessner. You are providing an affidavit from a clinical psychologist indicating that Ms. Woessner suffers from depressive disorder and cannabis dependence. You do not state a specific type of reasonable accommodation in your letter, however, the affidavit provided by Mark Ellinger, the Clinical Psychologist, indicates that allowing Ms. Woessner a leave of absence for the rest of the school year would give her time to treat [her] for her problems. While a depressive disorder may be considered a disability under the ADA, and a leave of absence can be an acceptable accommodation, we do not usually require that leave requests go through as an ADA accommodation. The School District leave policy is so generous that we would allow her to have a medical leave without going through the ADA process. I do understand that Ms. Woessner has since been terminated from the School District and that the first time that the ADA accommodation request was brought up was at a School Board meeting when the School Board was considering her termination. Apparently your client was terminated for misconduct, specifically destruction of property, breaking and entering and theft. Even if I could consider making an accommodation for your client's problems, I could never accommodate destruction of property, breaking and entering and theft. We can accommodate time to take the medication, other things like leave of absence, but not improper behavior. I am enclosing a copy of the new School Board policy with a form that should be completed if you think you have anything else to offer that could be considered. I do believe that the time to bring up an accommodation request would have been prior to a termination hearing. The School Board's Action Contrary to what Howard had stated in her letter, Respondent had not been terminated by the School Board. The School Board had merely suspended Respondent without pay (effective following the end of the 1996-1997 school year) pending the outcome of this dismissal proceeding. The Collective Bargaining Agreement As a teacher employed by the School District, Respondent is a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract). Article I, Section D, of the CTA Contract addresses the subject of "management rights." It provides as follows: The [School] Board hereby retains and reserves unto itself, the Superintendent, the principals and other administrative personnel of the School System, all powers, rights, authority, duties and responsibilities, and the exercise thereof, as conferred upon and vested in them by the Constitution and the Law and the Regulations of the United States and the State of Florida, and the policies of the School Board of Palm Beach County, in keeping with the provisions of this Agreement. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provides as follows: Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations,9 progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO.
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 dismissing her as an employee of the School Board. DONE AND ENTERED this 10th day of April, 1998, in Tallahassee, 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1998.
