The Issue The issue in this case is whether there is just cause to terminate the Respondent's employment on the grounds stated in the School Board's Notice of Specific Charges.
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. Respondent has been employed by Petitioner since 1995. At all time material hereto, Respondent was a data input specialist at Miami Carol City Adult Education Center (Carol City), Robert Renick Educational Center (Renick), Petitioner's Office of Exceptional Student Education and Psychological Services (ESE Office), or assigned to a paid alternative placement at her residence. Miami Carol City Adult Education Center Respondent began part-time work at Carol City around 1995. Her work was satisfactory at first. Once she began full- time employment, her work declined. The work hours at Carol City are 2:00 p.m. - 10:00 p.m., Mondays through Thursdays, and 9:00 a.m. - 5:00 p.m., on Fridays. From July 1996 through June 1997, Respondent had a pattern of absences that adversely impacted the education and work environment, particularly the effective operation of Carol City's office. Respondent had been absent for 44 days, six of which were unauthorized leave without pay. On May 21, 1997, Respondent was directed to comply with work requests from her assistant principal and was warned that failure to do so was insubordination. On June 12, 1997, Respondent was directed to arrive at work on time. On June 13, 1997, Respondent, along with staff, was directed to follow sign in/out procedures. On June 24, 1997, Respondent was referred to Petitioner's Employee Assistance Program (EAP). Respondent refused to sign the referral document. On June 25, 1997, Respondent was given the following directives: (1) communicate intent to be absent or tardy directly to the principal or designee; and (2) document absences for illness with a written medical note from Respondent's treating physician, presented to the principal or designee. Respondent was warned that future absences would be reported as unauthorized leave without pay until Respondent provided the required documentation and that non-compliance with these directives would be considered a violation of Respondent's professional responsibilities. On June 26, 1997, Respondent refused to work on a priority work assignment as directed by her assistant principal. Further, Respondent typed a non-work related memo during work hours. Respondent failed to comply with the principal's directives to stop and not xerox it. In addition, Respondent took a half-day off without obtaining permission from her principal. On June 27, 1997, Carol City's registrar complained that Respondent refused to do what the register asked her to do. On June 30, 1997, Respondent removed folders from the assistant principal's desk without permission. On July 2, 1997, Respondent was typing non-work related material during work hours. Respondent was directed not to do this. On July 7, 1997, Respondent again did non-work related activity, taking down the principal's conversation with another worker, during work hours. On July 11, 1997 a Conference-for-the-Record (CFR) was held with Respondent to address Respondent's insubordination, excessive tardiness, and absences, off-task time, and her failure to follow office procedures, directives, and the chain of command, including, but not limited to dates on or about May 21, 1997 through July 7, 1997. At the July 11, 1997, CFR, Respondent was given the following directives: (1) not to leave school without written permission from the principal; (2) when told to do something, Respondent was to do it whether or not she agreed with it. If she felt the directive violated her contract, rather than her personal beliefs, she was to file a grievance with the union; (3) comply with the requests and directions of the assistant principal, whether or not she agreed; (4) take direction from the registrar and complete the work that the registrar asked her to do; (5) use work hours for work tasks, not personal tasks; (6) not go to anyone's desk or touch or read anyone's paper without prior permission; (7) follow office procedures for telephone calls; and (8) comply with the directives given by memorandum of June 25, 1997. (Paragraph 7 above) At the July 11, 1997, CFR, Respondent was warned that if she continued to fail to follow directives and established procedures, further disciplinary action would be warranted. On May 18, 1998, Respondent, along with staff, was reminded to follow sign in/out procedures. On August 20, 1998, Respondent arrived late to work. On September 2, 1998, the meal schedule was distributed to Respondent, along with staff. On September 3, 1998, Respondent arrived late to work. On September 9, 1998, Respondent left work without authorization from the principal. Respondent failed to sign in and out. On September 14, 1998, Respondent was directed not to leave school without prior approval and to bring the original note from the doctor. On September 17, 1998, Respondent left work without permission from an administrator. On September 18, 1998, Respondent did not adhere to the school's meal schedule and failed to sign out when she departed. Respondent was directed to comply with school site schedules and procedures. On September 29 and 30, 1998, Respondent failed to sign in and out at the start and conclusion of her workday. On October 1, 1998, Respondent was tardy. She was directed to follow the previous directives as to signing in and out. On October 5 and 6, 1998, Respondent was late to work. On October 16, 1998, Respondent left work early without prior approval. On October 20, 1998, Respondent engaged in unprofessional, loud conduct and refused to sign her leave card. On October 23, 1998, Respondent was late to work. Respondent ended her workday early and engaged in a personal phone call. Respondent was directed to arrive on time, depart, and return from meals on time, and to remain on task at the worksite during her scheduled work hours. On October 30, 1998, Respondent behaved in an unprofessional manner, shouting and screaming loudly at her principal. On November 2, 1998, Respondent was late to work and failed to sign in and out. On November 19, 1998, Respondent was engaged in an off-task telephone conversation. She was not using established procedures as to maintaining attendance rosters in individual folders. Respondent was defiant in her assistant principal. Further, Respondent screamed at her principal, displaying unprofessional behavior. Respondent was warned that any similar outburst would be addressed by disciplinary action. On November 20, 1998, Respondent again engaged in a personal phone call, for approximately 20 minutes of her work time. On November 23, 1998, Respondent was not using the established procedures for attendance reports. On November 24, 1998, Respondent was late to work. On November 25, 1998, Respondent was late to work and returned late after dinner. On November 30, 1998, Respondent took vacation leave without approval. On December 1, 1998, Respondent did not follow the meal schedule. On December 3, 1998, Respondent was directed to report to a CFR on December 9, 1998. Respondent refused to attend. She was also referred to Petitioner's EAP due to excessive tardiness, prolonged lunch hours, and frequent trips to the restroom. Respondent refused to sign the referral document. She also received her evaluation which was unsatisfactory in efficiency, attendance, and punctuality, and adherence to rules and procedures. Respondent was placed on a prescription for performance improvement. On December 9, 1998, Respondent was directed to report to a CFR on December 11, 1998. Respondent refused to sign for receipt of the notice. Respondent said she could not attend at the scheduled time. On December 11, 1998, Respondent was directed to report to a rescheduled CFR on December 15, 1998. On December 15, 1998, a CFR was held with Respondent to address her unsatisfactory evaluation. The conferees discussed Respondent's deficiencies from August 1998 through December 1998. At the December 15, 1998, CFR, Respondent was given directives to: (1) be on time, be in her work area during scheduled work hours and to depart for and return from meals according to the published schedule; (2) limit conversations to business and conduct each business call within two to three minutes; (3) maintain attendance rosters in accordance with established procedures; (4) cease insubordination towards any administrator and follow all directions given by a principal or assistant principal; and (5) not to leave the worksite without written authorization from her principal or assistant principal. Further, Respondent was advised that performance and attendance are requirements of her job. At the December 15, 1998, CFR, Respondent was placed on a prescription for performance improvement. Robert Renick Education Center On January 26, 1999, Respondent transferred to the Robert Renick Education Center. On November 29, 1999, Respondent was warned in writing that her frequent tardiness was impeding the operations of her work site. She was warned that if her tardiness continued, further disciplinary action would be taken. Respondent did not show improvement after receiving the memorandum. From July 1999 through April 2000, Respondent accumulated approximately 29 days of absences. On April 25, 2000, Respondent received a directive to report to a CFR on April 28, 2000, to address her attendance, tardiness, declining work and future work status, inter alia. After Respondent was given the notice, she returned to the principal's office and exhibited erratic, impulsive behavior with minimal anger control, resulting in an altercation with her principal and assistant principal over an envelope. Respondent had reached over the principal and under her desk to grab the envelope. She was yelling, "I knew you had it. It's mine." Respondent thought the envelope contained some of her personnel records that had been expunged, but it did not. There was a tug-of-war over the envelope and Respondent held on to it, refusing to return it. The police were called and they escorted Respondent out of the building. As a result, a preliminary investigation was requested and Respondent's principal requested an alternative worksite for her. On April 26, 2000, Respondent's principal postponed the April 28th CFR pending the investigation of the incident that occurred the previous day. On April 27, 2000, Respondent was referred to Petitioner's EAP for excessive absences, excessive tardiness, prolonged lunch hours, marked changes in mood and activity level, altercations with staff, and poor judgment. Respondent did not participate. Office of Exceptional Student Education And Psychological Services (ESE Office) On April 27, 2000, Respondent was reassigned to the ESE Office as her alternative work site. Respondent was given directives concerning her hours of work, sign-in procedures, duties, and absences. She was supervised by Ms. Ball. She did not report to her work site until May 18, 2000. On August 3, 2000, Respondent was advised that her 67.5 absences from the work site, 22 of which were unauthorized leave without pay, between July 20, 1999, and July 18, 2000, were adversely impacting the work environment. Respondent was directed to: (1) be in regular attendance and on time; (2) communicate intent to be absent directly to her supervisor or designee; (3) document absences for illness with a medical note from Respondent's treating physician, presented to her supervisor or designee; (4) upon return to the work site, provide an unconditional medical release to return to full duties; and (5) if future absences are imminent, Respondent was directed to request leave and implement School Board procedures for approved leave. Respondent was warned that future absences would be reported as unauthorized leave until the required documentation was presented and that non-compliance with these directives would be considered a violation of her professional responsibilities. Nevertheless, Respondent did not improve her attendance or follow the directives. On August 29, 2000, a CFR was held with Respondent to address Respondent's attendance, performance, and future employment status. Between August 2, 1999, and August 17, 2000, Respondent had been absent 75.5 days, 27.5 of which were unauthorized leave without pay. During the August 29, 2000, CFR, Respondent was directed to: (1) be in regular attendance and on time; (2) communicate intent to be absent to her supervisor or designee; (3) document absences for illness with a medical note from Respondent's treating physician, presented to her supervisor or designee; (4) upon return to work site, provide an unconditional medical release to full duties; and (5) if future absences are imminent, Respondent was to request leave and implement School Board procedures for approved leave. Respondent was warned that future absences would be reported as unauthorized leave until the required documentation was presented and that non-compliance with these directives would be considered a violation of her professional responsibilities. Further, Respondent was reminded that unauthorized absences for three (3) consecutive workdays are evidence of abandonment of position and that unauthorized absences totaling ten (10) or more workdays during the previous twelve-month period are evidence of excessive absenteeism, which could result in future disciplinary action, including termination of employment. Nevertheless, there was no improvement after the CFR. On August 31, 2000, Respondent was again referred to Petitioner's EAP for excessive absences and tardiness, unauthorized absences, marked changes in mood, and assignment failures. Respondent refused to sign the referral document and declined to participate in the EAP. On October 24, 2000, a CFR was held with Respondent to discuss her inefficiency related to her work assignments, her attendance record and punctuality, and her future employment status. Between July 20, 1999, and October 20, 2000, Respondent had been absent from work 102 days, 82 of which were unauthorized leave without pay. Respondent's interim evaluation was unsatisfactory in the categories of efficiency and attendance/punctuality. Respondent was placed on a prescription of performance improvement. Her prescriptive activities were to be completed by November 21, 2000. On October 24, 2000, Respondent was again referred to Petitioner's EAP due to excessive absences and tardiness, absences on Mondays and/or Fridays, changes in personal appearance, marked changes in activity level, and assignment failures. Respondent refused to accept the supervisory referral to the EAP. There was no improvement after that CFR and Respondent failed to complete her prescription by November 21, 2000, as directed. On December 8, 2000, Respondent was directed to complete her prescription activities within 24 hours. She was warned that failure to do so would be considered insubordination. Respondent failed to comply with this directive. On December 19, 2000, Respondent was directed to attend a CFR on January 4, 2001. On January 4, 2001, the CFR was held, as scheduled. Respondent failed to attend the CFR; however, the meeting proceeded in her absence. Since Respondent's last CFR on October 24, 2000, Respondent has been absent an additional 26.5 days out of 44 work days. The purpose of the January 4 conference was to address Respondent's inefficiency related to work assignments, her daily work performance, her difficulty with interpersonal skills with staff members, her lack of dependability in completing assignments, her judgment, her sporadic attendance and punctuality, her non-adherence to office procedures and daily schedules, her 38 personal long-distance phone calls for which she did not reimburse the school district, her failure to complete her prescription, her January 4, 2001, interim evaluation, and to explain the deficiencies resulting in her January 4, 2001, prescription plan. On January 4, 2001, Respondent's interim evaluation was unsatisfactory in the categories of efficiency, interpersonal skills, dependability and judgment, attendance and punctuality, and adherence to rules and procedures. A prescription for performance improvement was issued with a completion deadline of January 31, 2001. On January 8, 2001, a review of the summary of the CFR, Respondent's evaluation, and Respondent's prescription was scheduled but did not take place because Respondent was absent from work. On January 11, 2001, a meeting was held to review the summary of the CFR, Respondent's evaluation, and Respondent's prescription. Respondent refused to sign to acknowledge receipt of copies of the documents she was given. On January 17, 2001, Respondent was reminded that her timeline for completion of her prescriptive activities was January 31, 2001, and a meeting to review the summary of the CFR, Respondent's interim evaluation, and Respondent's prescription was re-scheduled for January 18, 2001. Respondent failed to complete her prescriptive activities by January 31, 2001, as directed. On February 2, 2001, Respondent was notified that she had failed to comply with her prescriptive activities and had failed to remediate her deficiencies. She was directed to comply with her prescriptive activities within 24 hours and was warned that failure to do so would be considered gross insubordination. Respondent failed to comply with this directive. On February 2, 2001, Virginia Bradford, executive director of Petitioner's Office of Professional Standards (OPS), directed Respondent to report to a CFR on February 13, 2001. On February 8, 2001, Respondent called Ms. Bradford and threatened to kill Ms. Bradford, Ms. Ball, and Ms. Ball's supervisor, Mr. Felton. During the time that Respondent was under Ms. Ball's supervision, she was absent 123 days out of 207 workdays, 94.5 of which were unauthorized. Even when present at work, Respondent frequently did not work the full work day. On February 9, 2001, Respondent was assigned to a paid alternative placement at her residence and was advised that the CFR scheduled for February 13, 2001, would take place by mail. On February 13, 2001, a CFR was conducted by mail to address Respondent's performance assessments to date, her non- compliance with site directives regarding attendance and performance, her attendance to date, her violation of the Code of Ethics and the Principles of Professional Conduct of the Education Professional in Florida and professional responsibilities, her violation of the School Board rules concerning responsibilities and duties, a review of her record, and her future employment status. Respondent was advised that since her last CFR, on January 4, 2001, she had been absent an additional twenty-five days, twenty-four of which were unauthorized leave without pay. Further, since July 5, 1999, Respondent had been absent from work for approximately 177.5 days, 101 of which were recorded as unauthorized leave without pay. On March 14, 2001, Petitioner took action to suspend and initiate dismissal proceedings against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, issue a final order sustaining the suspension without pay of Patricia A. Young, and dismissing her as an employee of the School Board of Miami-Dade County, Florida, without back pay, for just cause, including excessive absenteeism, unauthorized absences, neglect of duty, gross insubordination, incompetency, and violation of School Board rules pertaining to employee conduct and violence in the workplace. DONE AND ENTERED this 28th day of September, 2001, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2001.
The Issue The issue to be determined in this proceeding is whether Escambia County School Board (“School Board”) Rule 2.04 (2017- 2018)1/ is an invalid exercise of delegated authority, as defined in section 120.52(8)(b), (c), (d), and (e).
Findings Of Fact At hearing, the parties stipulated to adopting the findings of fact from DOAH Case No. 17-4220, which are incorporated herein as follows: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.” As a noninstructional employee, Mr. Warren is covered by the Collective Bargaining Agreement (“CBA”) between the School Board and the ESP. In addition, the School Board, in part, relied upon rule 2.04 (2017), when it approved the recommendation to suspend Mr. Warren without pay for a criminal arrest. If Mr. Warren had been convicted of the alleged crime, he would have been disqualified from employment with the School Board. While the issue of whether the School Board had authority to suspend Mr. Warren’s license was addressed in DOAH Case No. 17-4220, that matter did not address the issue of the method of reinstatement and back pay for existing employees. As will be further discussed in the Conclusions of Law below, Mr. Warren has standing to challenge the rules in an individual capacity. A Recommended Order upholding Mr. Warren’s suspension without pay was issued on December 22, 2017. The School Board issued a Final Order adopting the Recommended Order in toto, issued on February 23, 2018. Since the Final Order was filed in DOAH Case No. 17-4220, Mr. Warren pled no contest to Filing a False Document, a non-disqualifying offense, pursuant to section 435.04, Florida Statutes, and the court withheld adjudication.3/ Other charges, including the alleged disqualifying offense, were nolle prossed. On December 22, 2017, as a result of the plea agreement, the School Board voted to reinstate Mr. Warren to work, effective November 17, 2017. Mr. Warren’s suspension without pay was formally rescinded, and he was reinstated to his position as a custodial worker. However, in reliance on School Board Policy 2.04, the School Board has refused to pay him back pay and benefits for the roughly five-month period of suspension without pay. Mr. Warren timely appealed the School Board’s decision to deny him back pay and benefits. The case is currently pending at the Division (DOAH Case No. 18-2270). Petitioner, ESP, is the union that solely and exclusively serves as the bargaining agent for collective bargaining on behalf of employees employed by the School Board. ESP has associational standing to represent members of the bargaining unit and to challenge rules that may affect employees covered by the CBA. School Board rule 2.04 is entitled “Recruitment and Selection of Personnel” and provides, in pertinent part, as follows: Guidelines which may disqualify from employment: A. Conviction (as defined in Sections 435.04, F.S., and/or 1012.315, F.S.) of a crime of moral turpitude (Section 1012.33, F.S.). Moral turpitude as defined by the District includes, but is not limited to, crimes listed in Sections 435.04, F.S., and/or 1012.315, F.S. * * * D. Any other felony crime not listed in Sections 435.04, F.S., or 1012.315, F.S., with a final disposition of guilt or plea of nolo contendere (no contest), regardless of adjudication of guilt. * * * J. Noncompliance with the District hiring requirements under Sections 435.04, F.S., 1012.465, F.S., 1012.315, F.S., and 1012.56, F.S. A record clear of disqualifying offenses as defined in Section A above is required for employment and continued employment with the District. Individuals who have pending criminal charges for an offense which would disqualify from employment or who are currently on probation or participating in a program for first-time offenders as a result of the offense will be automatically disqualified from employment or continued employment until resolution of the charge(s). * * * All applicants and vendors have the right to appeal before the Human Resources Appeals Committee. The Assistant Superintendent of Human Resource Services or designated representative will select the members of this committee to ensure diversity. The Committee is responsible for following and abiding by all local, state, and federal employment procedures and laws. A second applicant or vendor appeal will be granted only when new facts or additional information has been presented that was not considered in the first appeal hearing. The Superintendent shall review decisions made by the Human Resources Appeals Committee and has the authority to overturn decisions made by the Committee, excluding appeals from offenses listed in Sections 435.04, F.S., and/or 1012.315, F.S., and/or 1012.467, F.S. Rule 2.04 lists as its statutory authority sections 1001.41, 1001.42, and 1001.43, Florida Statutes, and lists sections 112.3173, 435.04, 440.102, 800.04, 943.051, 1001.01, 1001.10, 1001.42, 1001.43, 1003.02, 1003.32, 1003.451, 1012.22, 1012.27, 1012.32, 1012.335, and 1012.39, Florida Statutes, as the law it implements. The rule does not cite section 435.04 as statutory rulemaking authority. The rule does not list any reference to 1012.315 or 1012.465 as rulemaking authority or as law implemented. Rule 2.04 provides that an individual may be disqualified from employment or continued employment if he or she has pending criminal charges. The rule requires compliance with sections 435.04, 1012.465, and 1012.315. Section 1012.465 provides that noninstructional employees who have direct contact with children must meet the level 2 requirements described in 1012.32, which references section 1012.315 as the list of disqualifying offenses. Moreover, rule 2.04 allows for an employee to be disqualified, i.e., suspended from employment until resolution of the alleged charges, without providing a method for reinstatement or back pay should the allegations be resolved favorably for the employee. The School Board asserts that it has a duty and statutory authority to adopt and implement rules to facilitate the level 2 background screening required by 1012.465. However, there is no such authority in section 1012.465, 1012.315, or 1012.32, by reference or otherwise. Rule 2.04 also does not indicate the criteria that would be used for determining whether an employee should be reinstated with back pay. Dr. Scott testified that, “generally, the decision to award back pay is made on a case-by-case basis. It has been a general ‘practice’ to not award back pay for private conduct which resulted in criminal charges.” Ms. Waters agreed with Dr. Scott that back pay may be awarded based on the circumstances. Ms. Waters testified that the superintendent determines whether a reinstated employee should be awarded back pay, completely, partially, or not at all. Nothing in rule 2.04 provides Mr. Warren, or any other existing employee in his circumstances, with notice that suspension without pay for pending criminal charges for a disqualifying offense may result in the employee being awarded back pay upon reinstatement. The School Board’s determination that back pay would not be awarded following resolution of pending criminal charges was based solely on the superintendent’s discretion. If an employee is suspended without pay based on criminal charges related to the employee’s position and the charges are subsequently resolved, the employee may be awarded back pay.
The Issue Whether Jose R. Bustos (Respondent) committed the acts alleged in the Revised Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on March 6, 2015, and whether the School Board has good cause to terminate Respondent’s employment as a school security monitor.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Braddock High is a public school in Miami-Dade County, Florida. The School Board hired Respondent on September 19, 2001, as a school security monitor assigned to Braddock High, the position Respondent continuously held until the date of the disciplinary action at issue. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. Braddock High is a large school in terms of student population and campus size. Braddock High employs 12 full-time security monitors. While it is common practice to hire a substitute for an absent teacher, Braddock High does not employ a substitute security monitor to replace an absent security monitor. If a security monitor is absent on any given day, the schedules of the other security monitors must be adjusted to avoid a breech in security. Respondent has been documented for poor attendance since April 2006. DECEMBER 4, 2009, MEMORANDUM Manuel S. Garcia has been the principal of Braddock High for the last 13 years. On December 4, 2009, Mr. Garcia issued to Respondent a memorandum on the subject “Absence from Worksite Directive.” From October 2009 to December 2009, Respondent accumulated 13.5 absences1/ of which 7.5 were unauthorized. The 7.5 unauthorized absences were categorized as “Leave Without Pay Unauthorized (LWOP-U)”. The memorandum issued by Mr. Garcia as Respondent’s supervisor, provided, in part, as follows: Because your absence from duties adversely impacts the work environment, particularly in the effective operation of this worksite, you are apprised of the following procedures concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to a designated site supervisor, Mr. Manuel S. Garcia, principal or Dr. Edward G. Robinson, assistant principal. Absences for illness must be documented by your treating physician and a written note presented to the designated site supervisor upon your return to the site. Your future absences will be reported as LWOU [sic] (unauthorized) until you provide the required documentation to show that you qualify for Family Medical Leave Act (FMLA) or other leave of absence. If it is determined that future absences are imminent, leave just [sic] be requested and procedures for Board approved leave implemented, and the FMLA or ADA requirements, if applicable, must be complied with. These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program and to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities. APRIL 23, 2010, CONFERENCE FOR THE RECORD On April 23, 2010, Respondent was required by Mr. Garcia to attend a Conference for the Record. The purposes of the conference were to address Respondent’s non-compliance with School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties) and his insubordination to attendance directives. Between January 19, 2010, and April 6, 2010, Respondent was absent 14.5 days without communicating his intent to be absent to the principal or the assistant principal. As part of the conference, Mr. Garcia reiterated in writing to Respondent the directives pertaining to attendance set forth in the December 4, 2009, memorandum. Mr. Garcia advised Respondent that “[a]ny non-compliance with these directives will compel [sic] gross insubordination and will compel further disciplinary measures.” Mr. Garcia provided Respondent with a copy of School Board rules 6Gx13-4A.1.21 (Responsibilities and Duties) and 6Gx13-4E-1.01 (Absences and Leave). Mr. Garcia issued Respondent a referral to the School Board’s Employee Assistance Program (EAP). There was no evidence that Respondent used that referral. For the 2009-2010 school year, Respondent was absent a total of 28.5 days of which 17.5 days were unauthorized. DECEMBER 8, 2011, MEMORANDUM OF CONCERN On December 8, 2011, Mr. Garcia issued to Respondent a Memorandum of Concern addressing his excessive absences. Within less than five months into the 2010-11 school year, Respondent had accumulated 15 absences of which 8 were unauthorized. Respondent was informed that he was in violation of School Board Policy 4430 - Leaves of Absence.2/ Additionally, he was directed to report any future absence to Mr. Medina, the assistant principal. DECEMBER 5, 2012, MEMORANDUM On December 5, 2012, Mr. Garcia issued Respondent another memorandum addressing his absences. Mr. Garcia noted that Respondent had been absent a total of 11 days during the 2012-2013 school year. Respondent’s absence on November 21, 2012, was unauthorized. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009, and April 23, 2010. SEPTEMBER 10, 2013, MEMORANDUM On September 10, 2013, Mr. Garcia issued Respondent another memorandum addressing his absences. Between September 27, 2012, and August 29, 2013, Respondent had 36.5 absences, 19.5 of which were unauthorized leave. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009; April 23, 2010; and December 12, 2012. Mr. Garcia stated to Respondent that he considered Respondent’s actions of failing to abide by the attendance directives to be insubordination. OCTOBER 16, 2013, CONFERENCE FOR THE RECORD On October 16, 2013, Mr. Garcia conducted a Conference for the Record with Respondent to address Respondent’s attendance, his failure to abide by the previously issued directives, and his future employment with the School Board. Between September 30 and October 4, 2013, Respondent was absent without authorization. For three of those four days, Respondent did not notify anyone at Braddock High that he would be absent. Mr. Garcia reiterated the directives he had given to Respondent on December 4, 2009; April 23, 2010; December 12, 2012; and September 10, 2013. Mr. Garcia advised Respondent again that failure to comply with directives would be deemed gross insubordination. Mr. Garcia again provided Respondent with a copy of School Board Policy 4430 - Leaves of Absence. Mr. Garcia provided to Respondent a second referral to the EAP. In addition, Mr. Garcia gave Respondent contact information for four School Board Departments (including the name and telephone number of each department’s director). Those departments were Civil Rights Compliance; Leave, Retirement, and Unemployment; Human Resources – Americans with Disabilities Act; and EAP.3/ On October 18, 2013, Mr. Garcia issued a written reprimand to Respondent based on his absenteeism and his repeated failure to notify administrators in advance of absences. JANUARY 16, 2014, CONFERENCE FOR THE RECORD On January 10, 2014, Mr. Garcia issued to Respondent a Notice of Abandonment based on Respondent’s absence from work for the workweek beginning January 6, 2014, and his failure to communicate in advance with any school administrator about the absences. On January 16, 2014, Mr. Garcia conducted a Conference for the Record to address Respondent’s attendance. Respondent’s unauthorized absence for an entire week and his failure to abide by the previously issued directives prompted the Conference for the Record. Mr. Garcia also discussed Respondent’s future employment with the School Board. Mr. Garcia advised Respondent that the directives that had been repeatedly reiterated to Respondent were still in full force and effect. Mr. Garcia advised Respondent that failure to adhere to those directives would be considered gross insubordination. Mr. Garcia gave Respondent copies of the applicable School Board policies, including a copy of School Board Policy 4430–Leaves of Absence, and 4210-Standards of Ethical Conduct. Mr. Garcia issued Respondent a letter of reprimand. MARCH 12, 2014, CONFERENCE FOR THE RECORD Following the written reprimand in January 2014, Respondent was absent without authorization on six consecutive school days in February 2014. On March 12, 2014, Carmen Gutierrez, the district director of the Office of Professional Standards, conducted a Conference for the Record with Respondent because of Respondent’s history of absenteeism and his unauthorized absences in 2014. Ms. Gutierrez issued to Respondent the same directives Mr. Garcia had repeatedly issued to Respondent. Ms. Gutierrez informed Respondent that his failure to follow directives constituted gross insubordination. The Summary of the Conference for the Record contains the following: You were given the opportunity to respond to your excessive absenteeism. You stated that you had a family problem, a family member that was sick and you were helping them [sic] out. Ms. Hiralda Cruz-Ricot spoke on your behalf stating that you had been diagnosed with fibromyalgia and it impedes your ability to do things. She added that you were recently diagnosed and are not undergoing treatment. Ms. Cruz-Ricot said that you would be producing doctor’s notes since Mr. Garcia remarked that he had only received one doctor’s note dated October 18, 2013 from Broward Psychological Services. MAY 7, 2014, SUSPENSION At the School Board meeting on May 7, 2014, the School Board took action to suspend Respondent without pay for fifteen workdays for just cause, including, but not limited to: gross insubordination, excessive absenteeism, non-performance and deficient performance of job responsibilities, and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. Respondent was notified of the Board’s action via a letter dated September 4, 2014. JUNE 3, 2014, NOTICE OF ABANDONMENT Respondent was due back from his suspension on May 29, 2014. Respondent failed to show up for work on May 29th, May 30th, June 2nd, and June 3rd. Respondent was mailed another Notice of Abandonment. Respondent provided no explanation for his leave. At the beginning of the following school year on August 19, 2014, Mr. Garcia reiterated the directives as to absenteeism that had been repeatedly given to Respondent by Ms. Gutierrez and by Mr. Garcia. OCTOBER 28, 2014, CONFERENCE FOR THE RECORD Respondent failed to report to work for four consecutive school days beginning September 29, 2014. As a result, on October 28, 2014, Ms. Gutierrez conducted a Conference for the Record with Respondent to address Respondent’s absenteeism, gross insubordination, non-performance and deficient performance of job responsibilities and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. On December 9, 2014, Respondent received a letter informing him that the Superintendent of Schools would be recommending that the School Board suspend Respondent’s employment without pay and initiate proceedings to terminate that employment. At its regularly scheduled meeting on December 10, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate his employment. FAILURE TO COMMUNICATE In addition to the excessive absenteeism set forth above, between October 2009 and December 2014, Respondent repeatedly failed to communicate in advance with any administrator that he would be absent on days he failed to appear for work. DEPRESSION Respondent’s only exhibit was a letter from Dr. Maribel Agullera, a psychiatrist. This letter confirms that Respondent has been diagnosed with “Mayor Depressive Disorder, Recurrent, Moderate” and “Alcohol Dependence.” The exhibit also confirms that Respondent is on medication. Respondent testified, credibly, that he was diagnosed with depression before 2001, the year he first started working at Braddock High. Respondent testified he has suffered from depression for most of his adult life and that all of his absences were related to depression. There was no other evidence to support the contention that Respondent’s repeated absences should be attributed to depression. In the absence of competent medical evidence to support Respondent’s contention, the undersigned declines to find that Respondent’s excessive absenteeism and his failure to appropriately communicate with school administrators over a five-year period was attributable to depression.4/
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Jose R. Bustos. DONE AND ENTERED this 11th day of May, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2015.
The Issue The issue for determination in this case is whether Respondent should be terminated from, or otherwise disciplined, in regard to his employment with the Sarasota County School Board.
Findings Of Fact Petitioner, the SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA (SCHOOL BOARD), is a political subdivision of the State of Florida, and is the agency vested with the authority to operate, maintain, and control the public schools and school personnel in and for Sarasota County, Florida. Respondent, ANTHONY HARTLOVE, at all times material hereto, was employed by the SCHOOL BOARD as a custodian in the Facility Services Department. Respondent was first employed by the SCHOOL BOARD in this capacity in the late 1980's. Respondent is a member of the Sarasota Classified/Teacher Association which has entered into a collective bargaining agreement with the SCHOOL BOARD. As a SCHOOL BOARD employee, Respondent received a specified number of days for sick leave each year which under SCHOOL BOARD policy Respondent was entitled to use for personal or family illness. In Respondent's employment circumstances, he received one sick leave day per month. During the course of his employment with the SCHOOL BOARD, Respondent continually exhausted his accrued sick leave benefits. The parties have stipulated that Respondent was notified on numerous occasions, both verbally and in writing, of the SCHOOL BOARD's policy requiring an employee who has been absent to submit documentation from a physician excusing the absence if the employee had no sick leave remaining. The parties have further stipulated that Respondent submitted falsified physician's notes to his supervisors in an attempt to excuse several absences he took in excess of his earned leave time. Respondent's history of repeated absenteeism culminated on June 23, 1992, with a recommendation from Michael Will, Director of Facilities Services, to Robert Meyer, Assistant Supervisor, that Respondent's employment with the SCHOOL BOARD be terminated. This recommendation was based upon Respondent's disregard for SCHOOL BOARD policies, and noted that "Mr. Hartlove has been in an unauthorized leave status on numerous occasions and has not provided any justifiable reason for his absence." Prior to this recommendation, Respondent had on one occasion been given a five-day suspension in 1989 for reasons unrelated to absenteeism, and not the subject of these proceedings. On July 6, 1992, the Superintendent of Schools recommended to the SCHOOL BOARD that Respondent's employment be terminated. After discussions with Respondent and his wife's physician, the Superintendent withdrew the recommendation for Respondent's termination of employment, and on September 1, 1992, Respondent was given a written record of counseling and notified that he would be subject to disciplinary action if he failed to follow SCHOOL BOARD policy regarding sick leave. Despite the written notification of September 1, 1992, Respondent failed to adhere to SCHOOL BOARD sick leave policy during the next several years. Respondent received written counseling reports regarding sick leave policy on July 20, 1993, July 11, 1994, November 21, 1996, February 10, 1997, and February 27, 1997. In addition to the written counseling reports, on September 29, 1993, Respondent received a written confirmation of an oral reprimand for abuse of school equipment, failure to be in proper attire on duty, and lack of punctuality. On January 26, 1994, Respondent again received a written confirmation of oral reprimand for deficiencies in job performance due to excessive absenteeism. Respondent received another written reprimand on August 9, 1995, for failure to provide written documentation for absenteeism in a timely fashion. In May of 1996, Michael Will learned that Respondent had falsified several medical excuses as indicated above. Respondent acknowledged the submission of false medical excuses to his supervisors. By letter dated June 12, 1996, the Superintendent recommended to the SCHOOL BOARD that Respondent's employment be terminated. Thereafter, the Sarasota Classified/Teachers Association filed a grievance regarding Respondent's recommended termination of employment. The SCHOOL BOARD then withheld action in the recommendation pending completion of the grievance procedures. After the conclusion of the grievance procedures, the Superintendent again recommended to the SCHOOL BOARD the termination of Respondent's employment by letter dated January 27, 1997. While this recommendation was pending, Respondent continued to miss work without documentation, and another recommendation for termination was issued by the Superintendent on March 24, 1997. Respondent was terminated from employment with the SCHOOL BOARD on April 15, 1997. Respondent's history of absenteeism is primarily due to the chronic illness of his wife who suffers from the deleterious effects of lupus, a chronic and debilitating disease. In addition to suffering from lupus, Respondent's wife also suffers from clinical depression and has on at least two past occasions required extended hospitalization for treatment of mental distress. Respondent and his wife have two small children. When Respondent's wife is ill, he is responsible for their care, although he has assistance from family and friends. His wife's illnesses and the costs of child care have placed substantial financial hardship on the Respondent's family. In addition to his wife's health problems, Respondent also suffers from chronic bronchitis and ulcers and has been absent from work due to his own health problems. There is no indication that Respondent has missed work for reasons other than his or his wife's health problems. Respondent generally performs his duties as a custodial employee with SCHOOL BOARD in a competent manner; however, Respondent's repeated absenteeism taxes the personnel resources of the Facilities Services Department. Subsequent to the termination of his employment, Respondent and his wife have made specific arrangements for her care and the care of their children when Mrs. Hartlove is ill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA enter a final order suspending Respondent, ANTHONY HARTLOVE, from employment for a period not in excess of six months commencing on April 15, 1997. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. COPIES FURNISHED: Arthur S. Hardy, Esquire Matthews, Hutton and Eastmoore 1777 Main Street, 5th Floor Post Office Box 49377 Sarasota, Florida 34230 Charles L. Scalise, Esquire Law Offices of W. Russell Synder, P.A. 355 West Venice Avenue Venice, Florida 34285 Dr. Thomas H. Gaul Sarasota County Public School 1960 Landings Boulevard Sarasota, Florida 34231
The Issue The Respondent seeks to cancel and/or rescind the continuing contract of the Petitioner based on the fact that she refused to report to work as requested. The issue to be resolved is whether the Respondent may refuse to grant an instructor who is the holder of a continuing contract a consecutive fifth year of personal leave and secondly whether or not the Respondent may properly dismiss its instructional employee who has requested and has been denied such leave and thereafter refuses to report to work as directed.
Findings Of Fact The testimony of Wilbur S. Franklin, Principal, and Armando Henriquez, Superintendent, District School Board of Monroe County and other documentary evidence reveals that the Petitioner was granted personal leave for four consecutive school years beginning with the 1971-72 school year. The Petitioner also requested personal leave for a fifth year (school year 1975-76) and the principal of the school to which she was last assigned and who was responsible for approving such requests denied it. Messr. Franklin, Principal, testified that his reason for denying the Petitioner a fifth year of personal leave was based on the fact that he needed to make permanent staffing recommendations and the situation in which the Petitioner presented posed a problem in that from year to year he did not know whether or not she would return to school or whether she would again request an additional year of personal leave. He testified that in making his staff recommendations, he sought the best instructors in order to have a sound overall educational program and in order to fulfill that goal, he sought to utilize the services of the most qualified instructors available. The Petitioner testified that during the four years of annual leave which she was granted, she obtained a masters degree in guidance and counseling and that she thought that her training and educational background was more attuned to that type position and that was the position in which she was seeking with the Respondent. She testified that she was certified and was holder of a continuing contract as a classroom teacher and that her employment with the Respondent was in the areas of elementary education, i.e., fourth grade and below. She further testified that she made application for part-time and full- time positions in the areas of guidance and counseling and while vacancies have occurred during those times in which she had an application pending, she was bypassed and she voiced her opinion that based on her education and tenure, she has been discriminated against. In this regard the undersigned asked her to point to specific instances which would substantiate her position and she was unable to do so during the course of the hearing. She testified that vacancies occurred and were filled but she did not know what the educational background of the person(s) who was selected to fill these positions. The Petitioner has been an instructor within the county for more than fifteen years and she, as earlier stated, is the holder of a continuing contract. During March, 1975, she requested by letter a fifth year of annual leave and the Respondent, through its Principal, Messr. Franklin, advised that a fifth year of annual leave would not be granted to her. The Petitioner appealed this denial up to the level of superintendent and he sustained the Principal's recommendation. Messrs. Arthur, Assistant Superintendent Monroe County School District, Armando Henriquez and Wilbur Franklin, Principal, all testified that when the school year 1975-76 began, the Petitioner did not report for duty and has not reported during the current school year. They all testified that while they had no direct conversations with the Petitioner, they have corresponded through written communiques. The Petitioner was given 10 days following the conclusion of the hearing to submit any supporting memoranda which would tend to substantiate her claim that her denial of a position in guidance and counseling was done for ulterior and other unlawful reasons. Respondent's counsel asked the undersigned to take official notice of Section 231.43,44, Florida Statutes, regarding absence without leave and school board rules and regulations 1.4.13 dealing with absence without leave and 1.4.14, personal leave without pay as to the discretion vested in the Respondent with regard to setting school policies. The Petitioner in accordance with her request for ten days leave to file a written statement and/or other documentary evidence supportive of her position, has submitted such and it has been duly considered. Section 231.43, F.S., states, in pertinent part, that the school board shall adopt regulations prescribing conditions under which the instructional staff shall be granted personal leave which when granted shall be approved by the superintendent. In keeping with this dictate, the Respondent promulgated certain guides for the granting of leave (See Board's Exhibit No. 9 received in evidence and made a part hereof). Section 231.44, F.S., dealing with "Absence without leave" states pertinently that any instructor who is willfully absent from duty without leave shall forfeit compensation...and his contract shall be subject to cancellation...(Emphasis added). It is true that the Petitioner has requested positions in areas which she was certified and the evidence indicates that, at least on one occasion, a vacancy existed and was filled by another applicant. However absent any evidence that the successful applicant was selected based on an arbitrary or capricious method or that the Petitioner was not selected due to some discriminatory or other unlawful means, it must be inferred that the Respondent employment selection process was fair. Nor was any evidence submitted which tends to show that the Respondent's attempt to dismiss the Petitioner was initiated for any reason other than the stated reason advanced by Messr. Franklin to the effect that he was desirous of establishing a stable and efficient complement of instructors. It is only logical that an administrator would seek to achieve this. Based on the above and the entire record, it is recommended that the Respondent be permitted to terminate the employment of the Petitioner, Betty Suarez Patterson for failing to report for work and continuing to do so at her assigned position at Truman Elementary School, Key West, Florida. DONE and ORDERED this 28th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1976. COPIES FURNISHED: Hilary U. Alberry, Esquire 310 Fleming Street Post Office Drawer 1430 Key West, Florida 33040 Betty Suarez Patterson 3712 Donald Avenue Key West, Florida 33040
The Issue Whether just cause exists to terminate Respondent's employment as a teacher with the Palm Beach County School District for the reasons alleged in the Petition ("Complaint").
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times pertinent to this case, Respondent was employed as a math teacher at Palm Springs Middle School, a public school in Palm Beach County, Florida. Stipulated Facts The Collective Bargaining Agreement between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association was in effect at all times pertinent to this proceeding. Pursuant to the parties' Joint Pre-Hearing Stipulation, the facts contained in paragraphs 5 through 10 below are admitted and required no proof at final hearing. On January 13, 2013, Respondent was arrested for the following criminal charges: (1) hit and run—leaving the scene of a crash involving damage to property; (2) resisting an officer without violence; (3) DUI-unlawful blood alcohol—refusal to submit to DUI test; (4) knowingly driving with a suspended license; and (5) bribery of a public servant (two counts). On July 22, 2013, Respondent was adjudicated guilty of the following charges: (1) driving under the influence causing injury to person or property in violation of section 316.193, Florida Statutes; (2) leaving the scene of a crash involving damage in violation of section 316.061, Florida Statutes; and (3) resisting an officer without violence in violation of section 843.02, Florida Statutes. Respondent's arrest resulted in media attention, with headlines including: (1) "Mary Maloney: Palm Springs teacher offers police sexual favor after DUI arrest, police say"; (2) "Police: Teacher offers sexual favors to officer to avoid DUI arrest. Mary Maloney accused of leaving scene of hit-and-run crash"; (3) "Mary Maloney, Fla. Teacher, offers sexual favor to cop after DUI arrest, police say"; and (4) "Mary Maloney, Teacher, Allegedly Offers Oral Sex to Police Officer After Hit- and-Run Charge." Respondent was reassigned from her position teaching students on February 25, 2013, and remained on this assignment out of the classroom until January 8, 2014, when the School Board voted to terminate her employment. On December 15, 2006, Respondent signed a Drug Free Workplace Policy acknowledgement stating that she had reviewed the policy and that compliance was mandatory. Respondent's discipline history revealed a prior violation of the Drug Free Workplace policy. She received a written reprimand on October 12, 2009, for violating School Board Policy 3.96 Drug and Alcohol Free Workplace when she was under the influence of a prohibited substance while off duty which resulted in a conviction under section 316.193, Florida Statutes- -driving under the influence. Non-Stipulated Facts As a result of her adjudication of guilt on July 22, 2013, Respondent was sentenced to 12 months of probation, 30 days in the Palm Beach County Jail, 60 days house arrest (during which she was required to wear a Scram monitor), 150 hours of community service, court costs and fines. Respondent testified that she was permitted to work while she was serving her 60-day period of house arrest. Anthony D'Orsi, a police officer for the City of Greenacres, provided unrefuted testimony that while he was transporting Respondent from the scene of the DUI arrest to the police station, Respondent advised him that she was a school teacher and implied that she wanted to perform oral sex on Officer D'Orsi and allow him to "play with her breasts" in exchange for her release. On January 13, 2014, Matthew Stockwell was employed as a police officer with the City of Greenacres. Officer Stockwell provided unrefuted testimony that, after he placed Respondent in his patrol car, she made numerous statements regarding that she was sorry for what had occurred and inquired as to how much it would cost for Officer Stockwell to release her. Respondent's arrest was reported on the Channel 5 News program under the headline of "Middle School Teacher Arrested On DUI, Hit And Run—Greenacres Police Say She Tried To Bribe Them With Sex." The coverage included her photograph, and among other statements, her name, age, and position at Palm Springs Middle School. Prior to the subject incident, Respondent received satisfactory evaluations as a teacher. Respondent was rated as either effective or highly effective for the 2011-2012 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Mary Maloney guilty of misconduct in office and immorality, and terminating her employment. DONE AND ENTERED this 30th day of March, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 March, 2015.
The Issue The issue for consideration in this case is whether Respondent should be dismissed from employment with the Pinellas County Schools because of the misconduct alleged in the School Board's letter dated April 24, 1989.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Perry Hollis, was employed as a welding instructor at SPVOTEC, a facility operated by the School Board of Pinellas County. The Pinellas County School Board is the agency responsible for the administration of the public schools in the county. Respondent began working for the Pinellas County School Board as a welding instructor approximately 15 years ago. As a part of his job, he was required to take certain college courses in teacher training and now has 15 credit hours beyond his Bachelor's degree. At this time, and at the time of the allegations involved herein, he taught welding to mostly adult students at SPVOTEC where he has been employed for 13 years, satisfactorily, without any prior disciplinary problems. The evening before the incident in question, Respondent had been out gun training his dog. Since it is virtually impossible to hold the dog's chain and fire a rifle at the same time, he was using a pistol, the one involved in this case. Neither Respondent nor his wife have a permit to carry a concealed weapon. After the training session was over, Respondent placed the pistol into the door pocket on the driver's side of his pickup truck, put his dog in the back, and started home. He does not remember putting the gun in the door but can think of no other way it could have gotten there. On the way home, the dog jumped out of the back of the truck while it was moving and injured itself. When Respondent got it, he started to provide care for the dog and forgot the gun was in the door of his truck. Since the truck had been acting up, pursuant to an agreement with Mr. Protomastro, the auto mechanics instructor, the following morning he took the vehicle to school and left it at the auto shop so that students could work on it as a part of their training. This is legitimate. The car was assigned to Robert Mertz and Phat Le to work on. Mr. Protomastro drove the car into the shop but did not see the gun in the door. When Mertz got into the car, he saw the weapon in the door pouch on top of some maps and papers and took it out to show to Mr. Le. Mr. Le took it and tried to fire it but because the safety was on, it would not fire. When Le removed the safety, the weapon discharged one round, injuring no one and causing no damage. When Mr. Protomastro heard the explosion, he thought it was a firecracker and advised Phat Le not to shoot them off at school. Le told showed him the gun and Protomastro told him to put it back in the truck. He then took the truck with the gun back to Respondent at the welding shop and advised Hollis to be sure the truck contained no weapons if he brought it in again. According to Protomastro, when he first mentioned it to Respondent, the latter seemed surprised, and he has no less confidence in Respondent's abilities as a teacher even though in this incident, Respondent showed poor judgement. Protomastro did not report the incident at that time. However, when Mertz got home from school that afternoon, he told his mother what had happened. The following morning, she called the school to express her concern over the fact that someone had brought a gun to school. In her opinion, Respondent was wrong to allow the weapon to remain unattended in his car since it is his responsibility to keep the weapon under control at all times. No action was taken then, however. The incident was subsequently brought to the attention of Pinellas County school officials by Mr. Laux, SPVOTEC Director, several months after the incident. Mr. Crosby, Director of Personnel for the Board, caused a formal investigation to be conducted. Based on the investigation and his own limited inquiry, he recommended Respondent's dismissal. In the conversation he had with him, Respondent frankly admitted the gun had been in his car and explained the circumstances of it's getting there. Crosby recommended dismissal because he concluded Respondent's effectiveness as an instructor in the Pinellas county schools had been diminished by the incident. He takes this position because, (1) the media publicity the incident received, (one article and one editorial), reduced Respondent's effectiveness, and (2) he believed Respondent's supervisors, "must feel his effectiveness was reduced due to his lack of judgement." Mr. Crosby did not, however, check with Respondent's supervisors other than Mr. Laux, the Director of SPVOTEC, who concurred in a disciplinary action far less severe than dismissal. Nonetheless, Crosby recommended dismissal rather than some lesser action which could have been taken because: The severity of the situation - teachers are to provide conditions not harmful to students and here, Respondent created a dangerous situation, Students are expelled for bringing weapons to campus and they can do no less to teachers, and Respondent's lack of judgement. Mr. Crosby admits that in his relationships with Respondent, he always found Respondent to be completely forthright and cooperative and he is aware that Hollis has taught in the public school system for more than 13 years. He is familiar with Respondent's performance ratings which were always good. Considering all this, Crosby ultimately agreed with the Superintendent's position that Respondent be dismissed even though no teachers or students indicated their loss of confidence in Respondent as a result of this incident. Even in response to questioning by the Hearing Officer, Mr. Crosby indicated no opinion as to whether the incident was intentional on the part of Respondent. From a thorough review of the evidence it is clear it was not. Ms. Betty W. Arrigo is an interpreter for the hearing impaired who previously worked with Respondent at SPVOTEC. She is aware of the incident with the gun as a result of seeing the report in the newspaper. As a fellow instructor, she has lost no confidence in him as a result of the incident and knows from her communications with seven or so other faculty members that they feel the same way. None of her contacts have any reservations about working with Respondent and she has heard nothing derogatory about him from any of them. Mr. Phares was a student at SPVOTEC and took a welding course from Respondent before the time in issue. He heard about this incident only though the newspaper and even as a result of his reading, based on his first hand knowledge of Respondent, his faith in him as an instructor has in no way been diminished. He would not be reluctant to have Respondent as an instructor again. Admitting he is not bound by the same restraints and considerations as the school administration, and agreeing that guns should not be allowed on the school grounds, he nonetheless believe that if, as it appears in the instant case, the infraction was inadvertent and was an isolated incident, leniency should be shown. Much the same approach is taken by Mr. Stanjeski, who knew Respondent as an instructor at the time of the incident. He, too, is aware of it only from the newspaper, and has not lost any confidence in Respondent's ability as an instructor. Respondent insured that his students learned to work safely and was very much involved with them from a safety standpoint. Mr. Stanjeski would have no reservations about having his 10 year old son take a class with Respondent. He does not condone children or adults bringing a loaded gun to school, but under the circumstances as they appear here, he feels confident with Respondent and his teaching and supervisory abilities. Dr. Rose, Superintendent of Schools, became aware of the Respondent when he received the complaint from Crosby with the recommendation for dismissal. School Board policies prohibit weapons from being brought onto a campus by students or faculty. The purpose of these policies is to insure, as much as is possible, against accidents, and to promote the safety of both students and staff. Prior to adoption of a policy, several public readings are required, after which it is adopted and placed in a policy book furnished to all teachers. Respondent was aware of the policies. Respondent's bringing a weapon to school constitutes a violation of this policy but, in Dr. Rose's opinion, even worse, Respondent did not demonstrate the care for his students expected of a teacher. This constitutes major carelessness on his part, and in the opinion of Dr. Rose, constitutes a violation of the Florida Teacher's Code of Ethics. Dr. Rose also feels that Respondent's actions herein jeopardizes the safety of students. Respondent's judgement in this situation was poor, and his conduct put a dangerous instrument into the hands of a youth whose judgement had not matured. Dr. Rose feels that a teacher would not, if he valued the worth and dignity of his students, do anything potentially dangerous to their welfare. According to Dr. Rose, Respondent's conduct impaired his effectiveness as a teacher in that the work site was compromised. The Board envisions that a work site within the school system will be a safe place and for that reason, guns are not allowed on campus. To bring a gun on campus shows a disregard for the needs of the students. Prior gun incidents have sensitized the public to weapons on campus. As a result, any incident involving a gun on campus is considered critical by the Board, and brings back fears of danger to the students. Whenever a teacher creates a potential hazard to his students, it adversely impacts on his effectiveness, according to Dr. Rose. As Superintendent, he receives feedback from students, parent and teacher organizations, his division heads, and the public, and in this case, though the incident was not widely known until the dismissal was publicized, public demand for action was satisfied by the dismissal. Dr. Rose contends that while the press reaction is considered to be important, school Board decisions, and his in particular, are not dictated by the press. Nonetheless, the issue of guns on campus is very important to the public sector and the Board is sensitive to public reaction. The subject comes up frequently at public meetings and Dr. Rose receives many letters and phone calls about what is being done to keep guns off the campuses. After the articles previously mentioned appeared in the press in this case, Dr. Rose received substantial favorable feedback regarding the dismissal action against the Respondent. The substantial hiatus between the occurrence and the subsequent dismissal action resulted from the fact that the incident was not reported for several months. When the report was received, immediate action was taken to investigate it and to take appropriate corrective action. Local school administrators are supposed to act on their independent judgement within Board set parameters. In this case, Mr. Hollis' actions caused a question as to his ability to make valid judgements on his own and requires him to be more closely supervised. Therefore, his effectiveness, in the opinion of Dr. Rose, has been diminished. Though lesser punishments were available, Dr. Rose recommended the harshest discipline be imposed here because of the severity of the incident. The decision to dismiss Respondent was based on the fact that he had a gun on campus, aggravated by the potential danger to the students. Before taking action, Dr. Rose considered the Respondent's contention that he had forgotten the gun was in the car and, in fact, he believes this is so. In addition, his investigation disclosed no facts which lead him to believe that the incident would be repeated if Respondent were to be allowed to continue to teach. He is satisfied this was an isolated case and he considered that in making his recommendation for dismissal. Dr. Rose admitted that Respondent could probably be properly disciplined by lesser action, but, if that lesser action were taken, there is, in his opinion, a substantial risk that others might not get the important message regarding the policy against guns in the schools. Dr. Rose has not received any letters from parents as a result of this incident demanding that Respondent be dismissed. Nonetheless, he believes that because of the circumstances involved and because of the policy letters of the school Board and their intent that firearms not be brought onto campus at all; and because any time an incident involves bringing a firearm onto a campus, there is the potential for the weapon to be used in a harmful way, either directly or accidentally; it is imperative the strongest possible message be sent out stating that weapons will not, under any circumstances, be tolerated on the campuses of institutions within the jurisdiction of the Pinellas County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the continuing suspension with pay be lifted but that Respondent be reprimanded and suspended without pay for ten (10) days. RECOMMENDED this 25th day of September, 1989, in Tallahassee. ARNOLD H. POLLOCK 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 25th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2447 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. For the Petitioner: Accepted and incorporated herein. Accepted and incorporated herein. - 5. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. & 12. Accepted. 13. - 15. Accepted and incorporated herein. 16. & 17. Accepted and incorporated herein. 18. 7 19. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. For the Respondent: Respondent did not number his paragraphs in the Statement of the Facts, so the paragraphs will be addressed in turn as though they had been numbered. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney Post Office Box 6374 Clearwater, Florida 33518 Mark Herdman, Esquire Kelly & McKee, P.A. 1724 East 7th Ave. Tampa, Florida 33605 Dr. Scott N. Rose Superintendent of Pinellas County Schools Post Office Box 4688 Clearwater, Florida 34618-4688 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue The issue is whether Respondent, a non-instructional employee of the School Board, is guilty of violating School Board Policy 6.37, and if so, whether termination of her employment is an appropriate sanction.
Findings Of Fact Background The School Board is responsible for hiring, overseeing, and terminating employees in the school district. Respondent is a non-instructional (support) employee at Explorer K-8 School (Explorer) in Spring Hill. She began working at Explorer as a Custodian I in school year 2014-2015 and was assigned the night shift, 3:45 p.m. to 11:30 p.m. Before coming to Explorer, Respondent was a custodian at Hernando High School in Brooksville, but left to fill a vacancy at Explorer, which was closer to her home. She was hired at the recommendation of Homer Lawson, an African American male and head custodian at Explorer. Barbara Kidder is principal at Explorer and has ultimate supervisory responsibility for all employees at the school, including the custodial staff. Lillian DiTucci is the assistant principal and also has supervisory duties over the custodial staff. Custodians at Explorer are assigned to either the day or night shift. Lawson, as head custodian, is responsible for supervising all custodians, regardless of the shift assignment. Eric Harris is the night custodian supervisor and is next in the chain of command below Lawson. Although Lawson works the day shift, he is present for approximately one hour of the night shift and meets with Harris prior to the start of that shift to go over various issues, including performance of custodial staff. Lawson is the first person to arrive at Explorer the next morning and conducts walk-throughs to ensure the areas have been cleaned by the night shift. As head custodian, Lawson is also in charge of custodial supplies at Explorer. If a custodian is out of supplies, Lawson requires the custodian to write on the board the supplies he or she needs for the next day and then he processes the request. The supplies usage is documented in a log book, with notation of the custodian's name and the date the supplies were issued. If the documentation shows one custodian is going through more supplies than the others, Lawson inquires of the custodian. Because of strict budgetary concerns, Lawson is vigilant in tracking the use of supplies. He does not deny necessary supplies, but he will give direction to be more responsible. The School Board has adopted Policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Groups II and III. The penalty for Group II offenses ranges from a written reprimand for the first offense to discharge for a third offense. Group III offenses are the most serious and carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating two Group II offenses, referred to as items in the policy: Item 7 - Creating or contributing to unsafe, unsanitary or poor housekeeping conditions; and Item 13 - Incompetency or inefficiency in the performance of duties. Respondent is also charged with violating five Group III offenses: Item 1 - Insubordination; Item 4 - Interfering with the work of other employees or refusal to perform assigned task; Item 12 - Violation of a posted or otherwise known Board or departmental rule, procedure, order, regulation of any State or County statute or ordinance which is related to the employee's employment; Item 14 - Improper racial or sexual comments, harassment or acts; and Item 23 - Refusal to work overtime or hours as assigned. The Inappropriate Conduct Which Led to the Charges From the very beginning of her employment with Explorer, Respondent exhibited numerous performance issues, including the complete failure to perform assigned tasks, which resulted in a high volume of complaints from teachers and staff throughout the fall term and required multiple meetings with, and direction from, supervisors. On September 4, 2014, or a few days after she began working at the school, Harris met with Respondent regarding her cell phone usage during work hours. Harris witnessed and received complaints from other school employees that Respondent was on her cell phone "a lot," which resulted in less productivity and caused a distraction because she often kept her phone on speakerphone. Respondent responded that she would shut it off and use it only for emergencies. Respondent was assigned to clean the classroom of Michele Hann, an Exceptional Student Education (ESE) teacher at Explorer. On Thursday, September 18, 2014, Hann emailed Lawson and stated that her classroom had not been properly cleaned in a manner that was acceptable for ESE students, some of whom had medical needs requiring a very clean environment. She also noted that food from the day before was still on the floor, the paper towels by the sink had not been replaced since the previous Friday, and her Terminator bottle (containing a disinfectant) was empty. Harris was given a copy of Hann's email and discussed these complaints with Respondent. Among other responsibilities, Respondent was required to restock paper towels in the classrooms that she cleaned. On September 19, Lori Linauer, a teacher at Explorer, emailed Lawson that the bathroom in her classroom had been out of paper towels since the day before. Based on these complaints, Respondent was assigned a new area that required less responsibility, but the complaints regarding her performance deficiencies continued. One of her new assignments was cleaning the school's locker rooms. A few days later, Harris received a complaint that the locker rooms were not being cleaned. It takes "at least a half hour [to clean] each locker room to do a good job," and the night shift ends at 11:30 p.m. Harris observed that on September 22 and 23, Respondent did not begin cleaning the locker rooms until around 10:45 p.m. and 11:10 p.m., respectively. These observations enabled Harris to confirm that Respondent was doing her work "quick at the end of the night," without properly cleaning the rooms. Harris discussed this concern with Respondent and even assisted her with cleaning the locker rooms on several occasions. Custodians are instructed to place their carts in the custodial closet at the end of their shifts. On September 25, Harris met with Respondent after she continued to leave her cart and radio in the recreation hall at the end of her shift. Respondent gave no credible reason why she ignored this requirement. On September 29, Harris received another complaint that the locker rooms were not properly cleaned. When he confronted Respondent about this complaint, she explained that other rooms were messy and she had "meetings," implying that she had insufficient time to finish her work. Because Respondent had still not secured her assigned badge that would allow her access to the locker rooms (once they were electronically locked in the evening), Harris had to unlock the boys' locker room at 11:30 p.m. and then retrieve her cleaning materials so that she could finish the job. On October 21, Harris checked the boys' gang bathroom (a multi-use bathroom with six or more stalls) and found the toilet bases filthy and not wiped down. Harris met with Respondent to discuss this concern. The next day he noticed that Respondent failed to properly clean the toilets and mirrors in the girls' gang bathroom. Harris once again met with Respondent to discuss these concerns. Respondent told Harris that she needed a brush with a stick on it to make the job easier. Harris told her that she should clean the toilets the way everyone else did, by bending down and wiping them clean. On October 24, Respondent telephoned the principal's secretary at 4:15 p.m. and said she would be late because she had to pick up her employee's badge. However, Respondent did not pick up her badge that day. On October 28, Joanne Yarin, a Media Specialist at the school, informed Lawson by email that the women's restroom in the media center ran out of paper towels the afternoon before. Yarin had asked Respondent to refill the paper towels, but Respondent told her she wasn't sure if there were any more in the supply room. When the paper towels were not restocked by the following morning, Yarin contacted another custodian who promptly complied with her request. On October 29, Karen Federico, a music teacher at Explorer, complained to Lawson by email that Respondent failed to vacuum her classroom or take out the trash the night before. She also complained that the concession area women's bathroom had no paper towels. On November 3, Tammy Ashurst, a behavior specialist at the school, emailed Lawson regarding her concerns about Respondent's performance. A copy of the email was forwarded to Kidder and Harris. Ashurst pointed out that Respondent's failure to sweep or vacuum the floors was a recurring problem. When she entered her classroom that morning, Ashurst found a large section of the floor dirty and sticky and she had to ask another custodian to clean it. Ashurst asked Lawson to speak with Respondent regarding this issue. On November 5, Respondent telephoned the principal's secretary to say if she was not at work by 5:00 p.m. that day she was not coming in. She did not show up for work. Whether Respondent turned in a leave form for that day is not of record. Beside the performance issues, Respondent did not interact well with other staff at Explorer. On November 7, she was involved in a verbal altercation with another custodian, Haley Carson, whose car (with the Carson baby inside) was nearly struck by Respondent's car the prior evening when Respondent sped out of the parking lot at the end of their shifts. Respondent also had a verbal altercation with another co-worker in the parking lot after parking at an angle and into the adjacent parking space used by the co-worker. Respondent told the co-worker that she (Respondent) always parked like that and to move her car if she didn't like it. On November 7, Harris received a complaint from another school employee, Mr. Baroudi, whose position is unknown, that the garbage in his room had not been emptied on two occasions and food sat in the trash can for days. On November 18, Juliet Figueroa, another night shift custodian who had just started work the day before, was given the rundown on her job (a "411") by Respondent. During the conversation Respondent asked Figueroa if "you know the manager Homer [Lawson]? I don't call him that I call him nigger." During the same conversation, Respondent referred to a former co-worker, Mundreanu, who is Romanian, as a "communist." She also asked Figueroa if she was a Puerto Rican, since Respondent thought she looked like a Mexican. Figueroa was "taken aback" by these comments and reported the incident to Kidder. At hearing, Respondent claimed that Figueroa misunderstood her and that she actually used the word "negro," which means black in Spanish, and not the word "nigger." However, Figueroa understands Spanish and knows the difference between "nigger" and "negro." Respondent's assertion that she did not use this language has not been accepted. On or about November 19, during his morning walk- through, Lawson observed feces in the stalls and soap scum on the walls of the girls' gang bathroom near the school cafeteria that should have been cleaned by Respondent. Lawson spoke with Harris and told him to direct Respondent to take care of it. Harris directed Respondent to clean the area, but she failed to comply with his instructions. Lawson then informed DiTucci. On November 20, DiTucci met with Respondent to discuss these latest performance deficiencies. Respondent refused to attend the meeting unless Lawson was not present, claiming she did not consider him to be her supervisor and he had "disrespected" her at work. At the meeting, Respondent argued the substance was chocolate and not feces, but the areas should have been cleaned regardless of the substance. By then, DiTucci had checked it out and confirmed Lawson's initial findings. Respondent also contended that she was not given sufficient supplies to finish her work, even though she sometimes used three times the amount of supplies as other custodians. Finally, she claimed that Lawson had accused her of stealing supplies but there is no credible evidence to support this assertion. The meeting ended with Respondent threatening to hire an attorney to respond to the charge that she was stealing supplies. On November 21, Harris documented that Maggie, another school custodian, witnessed Respondent's cart not moving for more than an hour earlier in the day. Each room typically takes 15 to 20 minutes to clean, and the cart is parked outside the room for easy access. Harris testified that this may have explained why Respondent's areas were not being properly cleaned. The same day, without seeking permission, Respondent told Harris she was leaving early, saying she "forgot to punch out for lunch goodnight." Custodians are required to punch out for "lunch" from 7:30 p.m. to 8:15 p.m., a paid break. There is no option available to employees to work through lunch period and leave work earlier at the end of the shift. As of November 25, Respondent had still not cleaned the feces off the girls' bathroom wall. As a result, Kidder asked Harris to again direct Respondent to clean the girls' bathroom. She also asked Harris to remind Respondent to turn in a leave form for November 21, and to explain that she must punch in and out for lunch. Respondent finally complied with the directive to clean the girls' bathroom wall after DiTucci and Harris accompanied her to the bathroom, showed her the feces, and directed her to clean the area. On December 1, Stacy Tarbox, a paraprofessional at the school, emailed Lawson and Harris regarding Respondent's failure to clean the girl's locker room. Tarbox noted that it was dirty, the lockers had a thick layer of dust on top, the walls had not been cleaned, and the floors had not been pressure washed for some time. This was the same locker room Harris had previously talked to Respondent about in September. On December 2, Figueroa filed a bullying and harassment complaint against Respondent based on the November 18 incident in which Respondent made disparaging remarks about Lawson and Mundreanu. The essence of the complaint was that these comments created a hostile working environment. That afternoon, Kidder conducted a conference with DiTucci, Lawson, Respondent, and her union representative to discuss the bullying complaint and allegations that Respondent's conduct constituted a violation of three Group III offenses (items 7, 14, and 23) and one Group II offense (item 7). In response to these charges, Respondent initially said she could not remember using any racial terms when speaking with Figueroa but later labeled Figueroa as a liar and threatened to sue her. She claimed that she did not know what a "commie" meant and again called Figueroa a liar. She also said she never saw feces on the bathroom wall. If that was the case, she should have asked Harris where it was rather than doing nothing. In response to the charge that she refused to meet with her supervisor, Lawson, she claimed that he had accused her of stealing supplies, disrespected her, and hindered her in performing her work. Finally, she contended that before she left work on November 21 (without punching out for lunch), she told Harris that she was not feeling well. At the conclusion of the meeting, Kidder twice asked Respondent if she had any further response to the allegations and what it would take to change things. Respondent refused to respond. Respondent also declined to say if she intended to return to work at her assigned time and perform her duties. Kidder ultimately determined on December 18 that the bullying and harassment complaint was unfounded since it was an isolated incident, but concluded that Respondent's use of the offensive language was a violation of item 14 in Group III, which prohibits the use of improper racial comments. Beside the performance issues, Respondent's behavior at school offended other custodians. According to one co- worker, Respondent made the work environment feel "hostile" and "tense." There was testimony that co-workers had confrontations with Respondent about her work ethic and that Respondent gave a minimal effort to complete tasks. Also, there were nights when co-workers had to help her complete her assignments. Finally, the record shows that Respondent was always complaining about work and how she did not like her job. In short, there was a "bad atmosphere" at school among the custodians. Given the myriad of performance deficiencies, Lawson recommended to Kidder that Respondent be terminated, as her performance had steadily gone "downhill." Harris agreed with this assessment and pointed out that when compared with other custodians, Respondent's job performance was "poor to fair." Notably, the number of complaints about Respondent far exceeded those received for any other custodian. Kidder decided to make a recommendation at the school level to terminate Respondent. Her recommendation was based on Respondent's gross insubordination, a failure to perform assigned tasks, and violations of policy 6.37. This recommendation was supported by the fact that there were numerous emails and documents from teachers and staff outlining Respondent's issues as well as a series of meetings to address the concerns, none of which resulted in an improvement in Respondent's performance. In accordance with school protocol, a pre- determination meeting was held by Kidder on December 10, 2014, for the purpose of allowing Respondent to respond to not only the charges discussed at the December 2 meeting, but all offenses that had occurred since September. Respondent attended the meeting with a union representative. During the meeting, she refused to take responsibility for her actions and offered only excuses. She was argumentative with School staff and her union representative. Based on her lack of remorse and caustic attitude towards supervisors and co-workers, Kidder determined that termination was the appropriate action. On January 7, 2015, the Superintendent recommended that Respondent should be terminated, and pending final action by the School Board, she should be suspended, with pay. After Respondent filed a letter appealing this proposed action, the Superintendent recommended that the School Board suspend Respondent, without pay and benefits, pending an administrative appeal to DOAH. The recommendation was accepted by the School Board and the matter was referred to DOAH. At hearing, Respondent failed to present any credible evidence to rebut the charges or the evidence presented. She simply offered excuses like Lawson was difficult to work with, she was assigned a difficult area to clean due to high use, her co-workers did not help her clean, and she did not get sufficient supplies. While a former custodian testified that she also had problems getting sufficient supplies from Harris, neither spoke directly with Lawson to remedy this situation. Moreover, the evidence shows that Respondent used far more supplies than necessary and far more than other custodians.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hernando County School Board enter a final order terminating Respondent's employment for violating the following offenses in School Board Policy 6.37: items 7 and 13 in Group II and items 1, 4, 12, 14, and 23 in Group III. DONE AND ENTERED this 13th day of July, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 13th day of July, 2015.
The Issue The issue to be determined is whether just cause exists to terminate Respondent’s employment as a teacher in the Duval County School System.
Findings Of Fact Background Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the Duval County School System. Petitioner’s authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. At all times material to this matter, Respondent was employed by the School Board as a teacher at Robert E. Lee High School and Raines High School. During the 2016-2017 school year, Respondent was a mathematics teacher. Mr. Perry is subject to the collective bargaining agreement for teaching personnel between the School Board and the Duval Teacher’s Union (“DTU”). On March 17, 2017, the School Board issued a Notice, notifying Mr. Perry of its intent to recommend suspension without pay and termination of Mr. Perry’s position as a teacher. On April 4, 2017, the School Board, at a regularly scheduled meeting, voted to accept the recommendation to suspend without pay and terminate Mr. Perry. The allegations and charges in the Notice served as the bases upon which the School Board members cast their votes. On April 7, 2017, Respondent timely filed a request for an administrative hearing to dispute the allegations in the Notice. Prior Disciplinary Action The School Board has issued prior disciplinary action against Mr. Perry. A School Board teacher may receive progressive or non-progressive disciplinary action. Progressive discipline is formal action that begins with less severe discipline and progresses to more severe discipline. On the other hand, non-progressive discipline is informal action. The Notice listed the prior disciplinary action imposed against Mr. Perry as discussed further below. In October 2014, Respondent was investigated for inviting students to view his Twitter page,1/ which allegedly contained inappropriate and offensive images. Mr. Perry was issued a verbal warning, which is considered non-progressive discipline. In March 2015, Respondent was arrested for Making Repeated Harassing Phone Calls, a misdemeanor, to which he entered into a pre-trial intervention program. On September 25, 2015, Respondent received Progressive Discipline (Step II) of a written reprimand. This was Mr. Perry’s first disciplinary action involving progressive discipline. In January 2016, Respondent was arrested a second time and charged with stalking, a misdemeanor, to which he pled nolo contendere. On May 31, 2016, Respondent received Progressive Discipline (Step II) of a written reprimand. Recent Conduct In addition to the prior arrests resulting in prior discipline, the Notice indicates Respondent had two additional arrests. The Notice references arrests on August 5, 2016, and January 24, 2017. Regarding the August 2016 arrest, the evidence offered at hearing does not support the allegations in the Notice regarding that arrest or the alleged subsequent incarceration. On January 24, 2017, Respondent was arrested for Violation of Injunction for Protective Order. Regarding the January 2017 arrest, Petitioner offered at hearing Respondent’s email (dated February 20, 2017) to Reginald Johnson, in its case-in-chief. In the email, Respondent admits that he was arrested on January 24, 2017. The statement was offered by Petitioner against Respondent, and thus, meets a hearsay exception.2/ In an attempt to explain the circumstances surrounding the January 2017 arrest, Petitioner offered a police report (with attached affidavits), which was included in Mr. Johnson’s investigative report. The police report and affidavits contain hearsay that does not meet a hearsay exception.3/ Therefore, any statements in the police report and affidavits cannot be relied upon to support a finding of fact. Furthermore, since the affiants did not testify at hearing, Respondent did not have an opportunity to cross-examine them. Mr. Johnson also included summaries of the affidavits in his investigative report. The summaries, like the affidavits, are hearsay and are not credible evidence to support a finding of fact. Mr. Perry also accrued a number of unexcused absences during the 2016-2017 academic school year. Between August 29, 2016, through March 6, 2017, Petitioner accrued 58 days of unauthorized leave without pay (“LWOP”). There were approximately 180 days in the academic school year. Based on the number of absences, Respondent was absent approximately 32 percent of the school days, which is excessive. The School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. Mr. Schneider explained the protocol for teachers to report absences. If a teacher is unable to request leave before an absence, the teacher is required to call in to the school and complete a leave request form upon return to work. Mr. Schneider explained that when a teacher does not request leave before an absence, it affects the administration’s ability to obtain a substitute teacher. Mr. Schneider also discussed the impact of Mr. Perry’s absence on parents and students. Mr. Perry’s absences resulted in the inability of students and parents to determine the students’ current grades. Mr. Schneider also testified that he “thinks the students felt a lack of confidence and then they have increased anxiety” regarding lack of knowledge of their grades and test scores. However, Mr. Schneider did not identify any students or parents who confirmed his assertion. Therefore, the undersigned is not persuaded by Mr. Schneider’s unsubstantiated testimony regarding the impact Mr. Perry’s absences had on students. Mr. Perry testified that the LWOP was a result of his incarceration because he was unable to report his absences to the appropriate school officials. However, there was no credible evidence to support Respondent’s assertion that he was unable to report his absences and seek approval for leave for the 58 days he was absent from work. Although he was incarcerated, it was Respondent’s responsibility to properly request leave according to the leave policy. Disciplinary Action Recommendation At the completion of the investigation of the allegations against Mr. Perry, his investigative file was referred to Human Resource Services for review. Ms. Young, the assistant superintendent of Human Resources, is responsible for overseeing the Department of Equity and Inclusion and Professional Standards, which conducts investigations of complaints made against district employees for misconduct. Ms. Young’s duties include reviewing investigative records to determine a recommendation of disciplinary action based on the progressive discipline policy. Ms. Young primarily reviews cases involving allegations that could result in suspension without pay or termination. The progressive discipline policy provides four levels of discipline beginning with a verbal reprimand (Step I), written reprimand (Step II), suspension without pay (Step III), and termination (Step IV). The purpose of progressive discipline is to allow the teacher an opportunity to rehabilitate his or her behavior. However, any of the steps may be skipped if the conduct is deemed severe as determined by assessing the totality of the circumstances. The factors considered include the nature of incident, whether there is a pattern of behavior, whether students are involved, and whether there are mitigating or aggravating circumstances. Ms. Young reviewed Mr. Perry’s investigative file and determined that Mr. Perry’s pattern of numerous arrests and excessive absences resulting in leave without pay demonstrated that he was unable to perform his duties a teacher. Ms. Young explained that a teacher’s conduct outside of work may be considered misconduct because it impacts the teacher’s reputation in the community with peers and with students. Regarding mitigating factors, Ms. Young considered Mr. Perry’s cooperation as a mitigating factor. Although Ms. Young had no information regarding Mr. Perry’s conduct within the classroom, Mr. Schneider testified that Mr. Perry had an effective rating for conduct in the classroom. Ultimate Findings of Fact The undersigned recognizes that Petitioner’s actions arise from a set of events related to a child custody dispute. Based on the facts set forth herein, the preponderance of the evidence supports a finding that Petitioner’s actions resulted in a number of arrests over the course of 18 months. The preponderance of the evidence demonstrates that Respondent accrued excessive absences by accruing 58 absences resulting in LWOP during the 2016-2017 academic school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Duval County School Board, enter a final order terminating the employment of Jason Perry as a teacher. DONE AND ENTERED this 27th day of October, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 27th day of October, 2017.
