The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
Findings Of Fact Sunland Marianna is a facility which cares for the mentally retarded and is operated by the Department of Health and Rehabilitative Services. Because of the type care needed by Sunland clients and federal funding, it is very important and federal rules require that a minimum of three staff be on duty during the first and second shifts. When staff are out without authorization, other employees must be pulled from other cottages, creating a shortage in other areas, or employees are called from home causing overtime payments. At the time of the final hearing, Petitioner Michael Simmons was 38 years old. He was born and raised in Chipley, Florida, and is a graduate of Chipley High School. After services in the U.S. Marine Corps, he attended Washington County Vo-Tech School and received a certificate of completion for the nurse's assistant course. In 1987, he attended and completed a course of study entitled "Special Care Unit Staff Training," offered by the Northwest Florida Mental Health Center. In late May, 1988, Mr. Simmons applied for a position as a Human Services Worker I, at the Sunland facility operated near Marianna, Florida by Respondent, Department of Health and Rehabilitative Services ("HRS"). According to his employment file, at the time of his application, Mr. Simmons was married to Rose M. Simmons and had one son, Erick, born June 30, 1984. Mr. Simmons' employment application and other papers he filled out at that time listed a residence address in Chipley, Florida. Mr. Simmons had no phone at that address, and he listed the phone number (904) 638-0195 as his number. He testified that this was the unlisted number of his wife's grandmother, who later died in early August, 1989. Mr. Simmons was selected from among 62 applicants for the vacant position, and was hired as a Human Services Worker I on June 3, 1988, at a gross biweekly salary of $392.92. He successfully completed his probationary employment period and achieved permanent career service status. As of August 5, 1988, his gross biweekly salary was raised to $430.82. Initially, Mr. Simmons worked the evening shift, from 3:00 P.M. until 11:00 P.M., and was assigned to Hayes cottage. He was one of three persons assigned to that cottage as Human Services Worker, with first-line responsibility for care and supervision of 23 mentally retarded residents of that cottage. Mr. Simmons' first Employee Performance Appraisal, dated December 2, 1988, rated him overall as exceeding job performance standards and stated in general that he had an excellent attitude in his position. The only mention in the Appraisal of job attendance was the notation that Mr. Simmons had difficulty in correctly filling out his leave and attendance record. The Appraisal was signed by Dorothy S. Bryan as his immediate supervisor and by Clay S. Shirey as reviewer. Mrs. Rose Simmons gave birth to the couple's second child, a daughter, during Mr. Simmons' first year of employment with HRS. The daughter was about ten months old at the time of Mr. Simmons' termination from his position in September, 1989. Mr. Simmons worked at two other jobs during the first months of his employment with HRS. In early August, 1989, Mr. Simmons moved to Tallahassee, where Mrs. Simmons had obtained employment. Mrs. Simmons had moved earlier, and the couple resided together in Tallahassee after Mr. Simmons moved. At that time Mr. Simmons worked two jobs. His other job was at a nursing home in Bonifay. His hours in that job were from 6:00 A.M. until 1:00 P.M. He resigned from the Bonifay job before the events giving rise to his termination. Because of his difficult work schedule and an unreliable car, Mr. Simmons was late for work a number of times even before he moved to Tallahassee. His attendance records show that his superiors approved differing types of leave with pay on all of these occasions, except for the tardiness which occurred August 31, 1989, a few days before his termination. According to testimony of Mr. Simmons' superiors and documents in evidence as to official Sunland policy, leave with pay ordinarily was authorized only if the employee reported in advance that he or she would be tardy or absent. Sunland Operating Procedure 60-2 requires that employees who are late or absent inform their supervisor before the beginning of the shift, or failing that, telephone within seven minutes after the start of the shift. This Policy also requires supervisors to document patterns of unexcused absences and tardiness on certain forms, none of which appear in Mr. Simmons' employment file or otherwise in the record. Mr. Shirey testified that Mr. Simmons usually did not call in advance when he was late for work. In February or March, 1989, Ms. Angie Russ replaced Ms. Bryan as Mr. Simmons' immediate supervisor. She continued to approve leave on the occasions, when Mr. Simmons was late for work, usually once or twice each two-week pay period. On April 6, 1989, Clay Shirey and Angie Russ conferred with Mr. Simmons about his job performance. As reflected by a memorandum dated April 7, 1989, they told him his performance in accurately completing client training data sheets was not adequate. The memorandum also indicates discussion of the "failure of [Hayes Cottage] staff to work together as a cohesive unit," and the need for staff (and, inferentially, Mr. Simmons) to take a more active role in client interaction. Mr. Simmons did not agree with this assessment and refused to sign the memorandum. On May 5, 1989, Clay Shirey and Angie Ross conferred with Mr. Simmons about his being late for work. A memorandum dated May 12, 1989, reflects this conference. For pay periods after that date, Mr. Simmons' supervisors continued to approve leave with pay when he would be late for work, usually 15 or 30 minutes each time. Commencing with the May 12, 1989, pay period, Mr. Simmons' hours were changed so that instead of working from 3:00 until 11:00 P.M., he worked from 2:00 until 10:30 P.M. The record does not directly reveal the reason for this change. On June 15, 1989, Mr. Simmons' next Employee Performance Appraisal was completed. Mr. Autry Ferrell signed as supervisor, and Mr. Shirey signed as reviewer. The Appraisal expressed some dissatisfaction with Mr. Simmons' attitude, although it rated his performance as meeting or exceeding job requirements as to all specifically rated items. Item No. 1 in the Appraisal stated that Mr. Simmons exceeded requirements for completing client training data forms, which had been the specific complaint documented in the April 7, 1989, memorandum. The Appraisal made no mention of any problem with Mr. Simmons' being late for work. Mr. Simmons' overall performance was listed as meeting job requirements. In his comments on the form, Mr. Simmons disagreed with the assessment concerning his attitude. On August 28, 1989, Mr. Ferrell and Mr. Shirey signed a memorandum addressed to Mr. Simmons, which stated: This is written to confirm that you received on this date an oral reprimand for failure to follow your established work schedule. This is considered the first occurrence for this offense. Any further violation of similar Standards of Conduct may result in more severe disciplinary action. Mr. Simmons refused to sign this memorandum, according to Mr. Shirey's note on the document. The Handbook provision referred to in the memorandum defines tardiness as "failure to follow established work schedules," and establishes a "standard" that the first occurrence will result in an oral reprimand; the second occurrence in a written reprimand; the third occurrence in a suspension of up to ten days, and the fourth occurrence in dismissal. Mr. Simmons' attendance records indicate that during August, 1989, preceding this reprimand, he had been 30 minutes late for work four times and 15 minutes late one time. On each such occasion, Mr. Ferrell had approved leave with pay for the time he was tardy. On Thursday, August 31, 1989, Mr. Simmons was ill. He did not telephone until 8:15 P.M. Mr. Shirey authorized sick leave with pay from 8:15 until 10:30, but did not approve leave with pay for the time before Mr. Simmons telephoned. This is the first instance of Mr. Simmons' not being allowed leave with pay for any absence or tardiness, even though Sunland Policy 60-2 clearly authorized leave without pay for previous occurrences. On Friday, September 1, 1989, at approximately 1:00 A.M., Mr. Simmons took Mrs. Simmons to Tallahassee Regional Memorial Medical Center. She was in labor with the couple's third child. She was admitted through the emergency room at 4:10 A.M. the same night, and gave birth at 5:02 P.M. the following day. (still September 1st). The next day, September 2, 1989, Mrs. Simmons had routine surgery involving an incision through the abdomen. She and the new baby were discharged from the hospital on Monday, September 3, 1989. Mr. Simmons did not report to work on September 1 through 4, 1989. He was caring for his other two children, ages 5 years and 10 months. They had day care arrangements during normal business hours when Mrs. Simmons worked, but no such arrangements were available to Mr. Simmons to his knowledge in the evening hours when he was to work at Sunland. His care of the children was necessary since Mrs. Simmons was not physically capable of caring for their children due to her operation. On Friday, September 1st, Mr. Simmons telephone Sunland and eventually spoke to Mr. Shirey. He told Mr. Shirey that his wife was in the hospital giving birth and that he had no one to care for his children at night. Mr. Shirey demanded that he come to work, and Mr. Simmons said he would come to work the next day if he possibly could. Mr. Shirey testified that Mr. Simmons stated unequivocally that he would report for work the next day, a statement Mr. Simmons denies. Mr. Simmons did not telephone Sunland on September 2nd through 4th. He testified that he had no money to use at a pay phone to make the long- distance call (he had missed payday during his absence) and lost his only change on one unsuccessful attempt to call. His last payday had been August 17th. Mr. Shirey testified that he attempted to reach Mr. Simmons on Monday, September 3, 1989 (Labor Day holiday), using two telephone numbers in Mr. Simmons' personnel file. Mr. Simmons had moved from Chipley to Tallahassee and had no telephone, so these efforts were unsuccessful. Respondent was aware that Mr. Simmons had moved to Tallahassee. However, since Mr. Simmons did not have telephone service during this time, his supervisors had no ready means to contract Mr. Simmons. No one from Mr. Simmons employment thought to check or contact him at either of the two Tallahassee hospitals. Tuesday, September 5th and Wednesday, September 6th, were Mr. Simmons' usual days off. On Thursday, September 7, 1989, he reported to work at Sunland. When summoned by Mr. Shirey, he showed Mr. Shirey a handwritten, signed note from Mrs. Simmons' attending physician, stating that Mrs. Simmons had delivered a baby and had surgery, and asking that Mr. Simmons be excused from work September 1st through 4th. Neither the original nor a copy of this note was placed in Mr. Simmons' file, although both Mr. Shirey and Mr. Parramore acknowledged during their testimony that Mr. Simmons had showed it to them on September 7th. Mr. Simmons was informed that he was being terminated. On Tuesday, September 5th, prior to Mr. Simmons' return on the 7th, Mr. Parramore had already prepared a memorandum recommending that Mr. Simmons be terminated for abandonment of position. The memorandum referred to the earlier reprimand for tardiness and to Mr. Simmons' late call-in on August 31st, when he was sick. The memorandum, also referenced Mr. Simmons' reasons for his absence on September 1, 1989. The memorandum stated that Mr. Shirey had informed Mr. Simmons that he needed to obtain medical certification of his wife's illness and the need for his presence, and that Mr. Shirey had informed Mr. Simmons that "he needed to get to work as soon as possible." Notably, it does not mention any absolute commitment by Mr. Simmons, during his phone conversation with Mr. Shirey, to report the next day. Even with all these facts listed in the memorandum, it was clear from the evidence that the main reasons for Mr. Simmons' employer's action was the fact that Mr. Simmons could not be located, that he did not call in on the 2d, 3rd, or the 4th and that Mr. Simmons was not believed to be telling the truth regarding the reasons for this absence and the reason no one called in. On September 7, 1989, a letter was mailed to Mr. Simmons confirming what he had been told verbally that day: that he was terminated for abandonment of position. The evidence demonstrates that Mr. Simmons did not intend to abandon or resign from his position at Sunland, when he was absent from work on September 2 through 4, 1989. He obtained a written medical certification and excuse, complying with Mr. Shirey's instructions as he understood them. He reported to work promptly on his next regular work day. Though he may not have been as diligent as he could have been in contacting his superiors, he had sufficient reason in his own mind to be absent from work, and the evidence shows he fully intended at all times to return to work.
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order finding that Petitioner did not abandon his position and that Petitioner be restored to his position as a Human Services Worker I at the Marianna Sunland facility. DONE and ORDERED this 5th day of September, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1990. APPENDIX TO CASE NO. 89-5623 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 28 of Petitioner Findings of Fact are adopted in substance, insofar as material The facts contained in paragraphs 27 and 29 of Petitioner Proposed Findings of Fact are subordinate. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32399-0700 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 H. Michael Madsen, Esquire Messer Vickers, Caparello, French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32399-2949 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for his filing of a national origin discrimination complaint with the Florida Commission on Human Relations on August 17, 1988.
Findings Of Fact The Southland Corporation, d/b/a Southland Distribution Center, is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Guillermo A. Barbosa was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately sixteen (16) years. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. The Petitioner, Guillermo A. Barbosa, is fully competent to represent himself on a pro se basis. He exhibited clear understanding of the procedural requirements at the formal hearing and the legal import of his burden of proof on his claim of an unlawful practice against the Respondent. Petitioner exhibited comprehension of the English language, both spoken and written, and exhibited fluency in the speaking of English in the interrogation of witnesses at the formal hearings. Respondent, The Southland Corporation, d/b/a Southland Distribution Center, functions as a warehousing and distribution complex for a number of commercial customers including 7-Eleven convenience stores and restaurant chains such as Steak & Ale, Bennigan's, TGI Friday's, Krystal and others. In order to service its regional territory of four states, it employs approximately 630 employees in a large 440,000 square foot warehousing facility located on Sand Lake Road in Orlando, Florida. Respondent's warehouse operates 24 hours a day five (5) days per week. Respondent's work force stores a variety of goods and products and, upon order or request from a given customer or account, selects the indicated goods, packs them in appropriate containers and loads the order on tractor trailer rigs for transport and delivery to the final destination point. The Respondent places great emphasis upon the importance of time and schedules. Timely reporting for work and attendance as scheduled is emphasized by the Company so that the closely integrated operation of the complex can be maintained with efficiencies of labor and close coordination of schedules between warehouse operation, the transportation link and the store hours of the customer. The policies, procedures and work rules of the Company provide incentive programs to reward employees who report to work as scheduled in a prompt and consistent manner. Conversely, through its work rules, the Company provides that employees who demonstrate a pattern of tardiness or absence may be disciplined or discharged. For these same reasons, the work rules published to the employees and acknowledged by each worker also stress that a failure to report to work when directed or as scheduled for a period of 48 hours (no show/no call) will result in automatic termination of employment. The Respondent views employee reliability for reporting to work as scheduled and on time as a fundamental condition of employment. On August 11, 1988, Petitioner reported an on-the-job injury and was relieved of duty and, under directions from the Respondent's occupational health nurse, treated by an outside physician. On August 17, 1988, while on the medical leave of absence due to the work-related injury, Petitioner filed a discrimination charge alleging denial of transfer or promotion due to his national origin. A notice of the charge of discrimination was directed to the attention of the Personnel Manager of the Respondent and was received on September 7, 1988. On Friday, September 16, 1988, Petitioner was released by the treating physician and given "return to work orders" instructing him to return to work without restrictions. The following work day, Monday, September 19, 1988, the Petitioner resumed his normal duties and work routine. However, after approximately one to one and one half hours of work, Petitioner reported that he had either re- injured himself or had aggravated the prior injury for which he had been treated. The Respondent again placed Petitioner on medical leave of absence due to the work-related injury and directed him for treatment to the outside physician. On Friday, September 30, 1988, Petitioner was again released by the treating physician without limitations or restrictions and given instructions to return to work. On the next workday, Monday, October 3, 1988, Petitioner failed to show up at his scheduled time. After being absent without authority or explanation for five consecutive work days, the Warehouse Manager, Mr. Julius Dix, mailed a letter to Petitioner. The letter explained that pursuant to Rule 12 of the Company's "working conditions", specifically failure to report to work as directed and being absent without explanation or authorization for five consecutive work days, the Company was placing Petitioner on suspension pending further review. Although dated October 5, 1988, the letter drafted by Mr. Julius Dix was actually written and sent on Friday, October 7, 1988. However, the date of the letter was made retroactive to the actual point of job abandonment pursuant to the so-called "48- hour rule". On October 17, 1989 Petitioner mailed a copy of a medical form from an outside physician indicating that Petitioner had been disabled from working from October 13 to October 25, 1988. It was received by an employee of Respondent on October 19, 1988. A similar form was mailed October 26, 1988 and received on October 28, 1988. There was no letter or personal explanation accompanying the medical form. Petitioner stated that upon being released by the treating physician, he contacted the Warehouse Manager, Mr. Julius Dix, and upon explaining that his injury continued to disable him from returning to work, was given permission to continue on medical leave and seek treatment by another physician. However, Mr. Dix testified that he had never given such permission or directions, nor had he received any communications or contact from Petitioner on Friday, September 30, or during the subsequent week. The more credible testimony is that Petitioner made no communication with his employer during the week of October 3, 1988. Following corporate review, required for long-term employees, Petitioner's employment was formally terminated for violation of the "48-hour rule" (no show/no call) under a subsequent letter from Mr. Julius Dix dated October 25, 1988. On November 8, 1988, Petitioner filed a charge of discrimination alleging retaliation. The Petitioner's work history demonstrates his knowledge of the 48- hour rule and prior compliance under similar circumstances. The 48-hour rule of Respondent has been applied in a consistent and uniform manner to a substantial number of other employees during a period of time immediately prior to the action taken with regard to the administrative termination of Petitioner's employment. The administration of this rule by the Company has resulted in termination of the non-complying employees.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued which denies the Petition for Relief. DONE AND ENTERED this 17th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact: Paragraphs 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 (sic) -- accepted in substance. Paragraphs 7 and 8 -- rejected as not relevant. COPIES FURNISHED: Guillermo A. Barbosa Dana Baird 854 Long Bay Court General Counsel Kissimmee, Florida Human Relations Commission 325 John Knox Road Thomas C. Garwood, Jr., Esquire Building F, Suite 240 Garwood and McKenna, P.A. Tallahassee, FL 32399-1925 322 East Pine Street Orlando, Florida Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds Florida Educator's Certificate 962539, covering the areas of English, English for Speakers of Other Languages, Middle Grades Integrated Curriculum, and Reading, which is valid through June 30, 2017. During the 2013-2014 school year, Respondent was employed as a science teacher at Sims Middle. He continued teaching at Sims Middle for the 2014- 2015 school year, and currently teaches at Woodham Middle School in Escambia County. Among his teaching assignments, Respondent taught an eighth-grade honors science class during the school day’s first period. Among his students in that class was T.L. T.L had, in 2010, been diagnosed with Type I diabetes. By her eighth-grade year, T.L. was an “independent diabetic,” using an insulin pump and capable of carrying her meter and lancing device with her. On March 6, 2014, during a discussion of the consequences of the failure of various organs, Respondent made a comment that was substantially similar to that alleged in the Administrative Complaint, i.e., “Your pancreas can die and you could go into sugar shock; go into a coma and die, like (T.L.) could.” Respondent was standing in front of T.L.’s desk at the time. His position meant that the students were, or should have had their attention directed to Respondent. Thus, his statement would have been obvious. The investigation performed by Mr. Stokes indicated that comments similar to that involving T.L. “are often made” by Respondent; that T.L. likely took the statement “the wrong way” due to Respondent’s “dry sense of humor”; that Respondent “often makes comments trying to be funny but it usually just makes people feel weird”; and that he has made similar comments regarding other students in the past. The statements contained in Mr. Stokes’ report are not accepted for the truth of the matters asserted, but are used herein as evidence of Respondent’s overly loose and unsuccessfully “funny” teaching style. The statements contained in Mr. Stokes’ report also support a finding, made herein, that Respondent did not single T.L. out for disparate treatment, but (misguidedly) used her condition, with benign intent, to reinforce the importance of his lesson plan. In that regard, even T.L.’s mother, who was aggravated by the incident, admitted that the instruction as to what can happen when one’s pancreas dies “would have been appropriate in the classroom,” with her concern being the personalization of the instruction. However, she acknowledged that Respondent’s “unprofessional” comments had previously been directed to other students, and were not restricted to T.L. The evidence suggests that T.L.’s diabetic condition was not unknown. T.L.’s close circle of friends knew, having been told by T.L. C.P. testified that T.L.’s diabetes was fairly common knowledge. On at least one occasion prior to Respondent’s statement, the alarm on T.L.’s insulin pump went off during class. Respondent asked the class whether the sound was a cell phone, to which T.L. replied “Oh, that is my pump, sorry,” and turned the alarm off. T.L. carried the pump in her pocket, and she testified that the other students “probably just thought I had something weird in my pocket, but didn’t really know what it was.” T.L.’s mother testified that “her tubing was usually visible, depending on what she was wearing.” Finally, the topic of T.L.’s award-winning science project was the effect of contaminants at the site of a finger stick when testing one’s blood for glucose. While there was no evidence that T.L.’s diabetes was the subject of a general announcement, or that it was a topic of particular concern amongst her peers, the preponderance of the evidence indicates that it was unlikely that her condition was unknown to those in her class. The comment that forms the basis for the Administrative Complaint, though related to the class lesson plan, was inappropriate and unnecessary. Despite the fact that T.L.’s diabetes was not unknown to her peers, Respondent’s act of using her as an example was embarrassing to her. Respondent’s testimony that his use of T.L. as an example of an unchecked diabetic reaction was purely happenstance is not plausible. The evidence is convincing that Respondent was well aware of T.L.’s diabetes, and used her as an example of someone who had the condition that was the topic of discussion. However, there was no evidence that Respondent made the statement maliciously, or with the intent to embarrass or humiliate T.L. Prior to the incident in question, T.L., along with other students, used her telephone with Respondent’s permission in his class after completing Florida Writes testing, and Snapchatted a video to a friend. That became known when the friend asked Respondent why students in her later class period could not use their phones in similar circumstances. Respondent verbally admonished both T.L. and her friend, with his primary concern seeming to be that he could get in trouble for having allowed his first-period students to use their phones in class. T.L. was not written up for the incident, and there was no adverse effect on her grades. On March 5, 2014, Respondent received a letter of reprimand from Sims Middle regarding the incident of allowing students to use telephones in class. Although the incident that forms the basis for the Administrative Complaint occurred on March 6, 2014, there is insufficient evidence to establish a causal connection between the two. The suggestion that the incident in question was retaliation, or was otherwise precipitated by the Snapchat incident, is not accepted. On March 28, 2014, Respondent received a letter of reprimand from Sims Middle for the incident in question. Other than the two reprimands described herein, both having been issued in the span of little more than three weeks, he had not been the subject of any previous disciplinary actions during his eleven-year period of employment with the Santa Rosa County School District. There was no evidence that T.L.’s mental health was actually affected by the incident. The testimony of T.L. and her mother is evidence that she was, and remains, a bright, articulate, well-adjusted, straight-A student. However, rule 6A-10.081(3)(a) “does not require evidence that Respondent actually harmed [T.L.]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. vs. William Randall Aydelott, Case No. 12-0621PL ¶ 76 (Fla. DOAH Aug. 29, 2012; EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect T.L. from embarrassment, a condition reasonably contemplated to be harmful to her mental health pursuant to rule 6A-10.081(3)(a).
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(3)(a). It is further recommended that Respondent be issued a reprimand. DONE AND ENTERED this 7th day of December, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 7th day of December, 2016.
