The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school monitor on the grounds alleged in the Notice of Specific Charges filed September 5, 2002.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4B of Article IX, Constitution of the State of Florida and Section 230.03, Florida Statutes. At all times material hereto, Petitioner employed Respondent as a school security monitor and assigned her to work at Horace Mann, which is a public school located within the school district of Miami-Dade County, and, as will be discussed below, to a temporary duty location. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent’s employment with Petitioner began on April 12, 1993. At the times material to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) collective bargaining unit. On October 22, 2001, Metro-Dade Police arrested Respondent on charges of aggravated battery and violation of probation. Respondent remained incarcerated from the date of her arrest until May 15, 2002. Respondent admitted that she had engaged in a fight while she was on probation and that she had thereby violated the terms of her probation. Respondent did not report to work between October 22, 2001, and May 15, 2002. Respondent sent a letter to Petitioner dated December 3, 2001, and addressed "to whom it may concern." The letter reflects that Respondent had previously entered a plea to a charge of domestic violence for which she had been placed on probation. It also reflected that that she was in jail after violating the conditions of her probation by having engaged in a fight. Respondent's letter represented that she would be released from jail on February 4, 2002, and makes it clear that she wanted to retain her employment, if possible. Carolyn Blake was the principal of Horace Mann at the times material to this proceeding. Ms. Blake learned of Respondent’s arrest within days of its occurrence. Shortly thereafter, Ms. Blake forwarded her home telephone number to Respondent and sent Respondent a message to call her collect from jail so that she and Respondent could discuss Respondent’s employment intentions. On December 26, 2001, Respondent placed a collect call to Ms. Blake at Ms. Blake’s home. Ms. Blake accepted the collect call from Respondent. During the ensuing telephone conversation Respondent told Ms. Blake that she would be released from jail by February 4, 2002, and that she hoped to return to work. Ms. Blake told Respondent she should consider resigning from her employment with Petitioner because of the number of days she had been absent without authorized leave. On January 14, 2002, Ms. Blake attempted to communicate with Respondent through a memorandum sent to Respondent's home address. The memorandum reflected that Respondent had been absent from her worksite since October 19, 2001, and that the absences had impeded the effective operation of the worksite. The memorandum requested that Respondent select from among four options and to notify her worksite within three days of the date of the notice regarding her employment intentions. The four options were to (1) notify the worksite of the date she intended to return to work; (2) apply for leave of absence; (3) resign; or (4) retire. The January 14, 2002, memorandum, further advised Respondent that her absences would continue to be unauthorized until she communicated directly with Ms. Blake as to her employment intentions. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee. At the times material to this proceeding, Respondent was not eligible for a leave of absence under Petitioner’s leave polices. On March 11, 2002, Respondent was directed to report to a conference-for-the-record (CFR) scheduled for March 28, 2002, at the School Board’s Office of Professional Standards (OPS) to address, among other things, Respondent’s arrest; her violation of School Board rules dealing with employee conduct; her excessive absenteeism; and her future employment status with Petitioner. The notice that instructed Respondent to attend the CFR was mailed to Respondent's home address. On March 28, 2002, Respondent was still incarcerated, and she did not attend the scheduled CFR scheduled for that day at OPS. On March 28, 2002, a CFR was held at OPS in Respondent’s absence. At the CFR held on March 28, 2002, Respondent’s employment history with the School Board was reviewed, including the number of days that Respondent had been absent from her worksite, with special emphasis on the number of days she had been absent without authorized leave. On March 28, 2002, Ms. Blake recommended that Respondent’s employment with the School Board be terminated due to Respondent’s excessive absenteeism and because of the adverse impact Respondent’s absenteeism was having on the operation of the school site. As of March 28, 2002, Ms. Blake had received no communication from Respondent since their telephone conversation on December 26, 2001. Despite having Ms. Blake’s home telephone number and knowing that she would accept a collect call, Respondent made no effort to contact Ms. Blake after Respondent learned that she would not be released from jail on February 4, 2002. By notice dated April 23, 2002, Respondent was directed to appear on May 8, 2002, at a meeting at OPS to address the employment action that had been recommended by Ms. Blake. This written directive was sent by mail to Respondent's home address. As of May 8, 2002, Respondent was still incarcerated. Because of her incarceration, Respondent did not attend the meeting and had not reported to her worksite. On May 8, 2002, the scheduled meeting was held at OPS. As a result of the meeting, the Superintendent recommended that the School Board terminate Respondent's employment and scheduled the recommendation to be considered by the School Board at its meeting of June 19, 2002. On May 16, 2002, the day after she was released from jail on May 15, 2002, Respondent called Ms. Blake, who instructed her to meet with an administrator at the regional office. Respondent complied with that directive and was ordered by the administrator to report to an alternative work site pending the School Board’s action on the recommendation to terminate her employment. Respondent refused to comply with the order to report to an alternate worksite because she did not want to jeopardize her claim for unemployment compensation benefits. From October 22, 2001, through May 15, 2002, Respondent was incarcerated and was absent from work without authority. From May 16, 2002, through June 19, 2002, Respondent was absent without authority and either failed or refused to report to work. For the school year 2001-2002, Respondent accumulated 142 unauthorized absences. On June 19, 2002, the School Board suspended Respondent and initiated dismissal proceedings against Respondent on the following grounds: excessive absenteeism and/or abandonment of position; willful neglect of duty; and violation of School Board rules dealing with employee conduct. Respondent’s family received Ms. Blake’s memorandum and the notices of scheduled meetings that were mailed by Petitioner to Respondent’s home address while Respondent was incarcerated. Respondent testified that she did not see the memorandum and notices until after she was released from jail. There was no justification for Respondent’s failure to contact Ms. Blake after Respondent learned she would not be released from jail on February 4, 2002. There was no justification for Respondent's failure to attempt to comply with Petitioner's leave policies. There was no justification for Respondent’s refusal to report to the alternate worksite as instructed by the administrator at the regional office.
Recommendation Based upon the foregoing findings of act and conclusions of law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order find Respondent guilty of excessive absenteeism, gross insubordination, and willful neglect of duty as alleged in Counts I and II of the Notice of Specific Charges. It is further RECOMMENDED that the final order sustain Respondent's suspension without pay and terminate her employment as a school monitor. DONE AND ENTERED this 10th day of December, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2002.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Respondent Respondent began working for the School Board approximately 12 years ago. He is presently under suspension pending the outcome of this disciplinary proceeding. For the duration of his employment with the School Board, he has done roofing work. He was hired as a Roofer II, was subsequently promoted to a Roofing Foreperson position, and then took a voluntary demotion back to a Roofer II position, the position he currently occupies. The School Board's job description for Roofer II provides, in pertinent part, as follows: BASIC OBJECTIVES The Roofer II (journey person) will work independently under the guidance of a foreperson or other supervisory personnel and in accordance with the standard practices of the roofing trade. Journey person level work includes, but is not limited to: installing, altering, maintaining and repairing all hot and/or cold roofing systems and their related components; using knowledge and experience of the trade to determine a method or to devise a means to accomplish the assigned job; and interpreting technical data from sketches, blueprints, schematics and service manuals. . . . PHYSICAL REQUIREMENTS This is very heavy work which requires the following physical activities: climbing, balancing, bending, stooping, kneeling, crouching, twisting, reaching, standing, walking, pushing, pulling, lifting, finger dexterity, grasping, repetitive motions, talking, hearing, and visual acuity. The worker is exposed to heat, noise, hazards, atmospheric conditions and oils. The work is performed outdoors. MINIMUM QUALIFICATION REQUIREMENTS * * * 5. Possession of a valid CDL Class A (6331) or Class E (6056) driver's license. * * * NOTE: This is an Omnibus Transportation Employees Testing Act (OTETA) monitored position. Employees with this job description may be required to drive or road test a motor vehicle weighing over 26,000 pounds, transport 16 or more persons, or carry hazardous materials. At all times material to the instant case, Respondent was assigned to the School Board's South Central Maintenance Satellite (South Central). At all times material to the instant case, Robert Goldberg was the director of South Central. At all times material to the instant case, Berny Blanco was a Coordinator III at South Central and Respondent's immediate supervisor. The Collective Bargaining Agreement As a Roofer II employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Dade County School Maintenance Employee Committee (DCSMEC) and covered by a collective bargaining agreement between the School Board and DCSMEC (DCSMEC Contract). Article XI of the DCSMEC Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled, "Notification." It provides, in pertinent part, as follows: Whenever an employee violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the rule, regulation, or policy violated. An informal discussion with the employee shall occur whenever the employee[']s conduct or the nature and severity of the alleged infraction/violation does not warrant formal disciplinary action. Section 2 of Article XI is entitled, "Types of Separation." It provides as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of three distinct types of separation. Voluntary-- The employee initiates the separation by resigning, retiring, abandoning the position, or other unilateral action by the employee. Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays, where such absence is not reported as prescribed by bureau/office procedures, shall be evidence of abandonment of position. Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for which the School Board may terminate employment. Absences due to emergencies, or circumstances beyond the employee's control, will be given full consideration. An employee recommended for termination under this provision shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after first being notified by the Office of Professional Standards. Dismissals, Suspensions, Demotions-- Employees dismissed, suspended, or demoted shall be entitled to appeal such action to an impartial hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. (The employee shall have 20 calendar days in which to notify the School Board Clerk, in writing, of the employee's intent to appeal such action.) Failure to request a hearing for appeal of disciplinary action in the manner prescribed herein shall be deemed a waiver of rights to any such hearing. The Board shall provide for an impartial Hearing Officer who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. All such proceedings shall be conducted in accordance with School Board Rule 6Gx13-8C- 1.64. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and demotions. If the employee is not employed or has had a reduction in salary during the time of appeal of such dismissal, suspension, or demotion, and if reinstated by Board action, the employee shall receive payment for the days not worked, or salary not received, and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or demotion. Section 4 of Article XI is entitled, "Cause for Suspension." It provides as follows: In those case where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]" As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s] regulation[s], [and] [p]olic[ies]" and, if he does not, he may be disciplined in accordance with the DCSMEC Contract. Among the School Board's rules are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." Pre-2001-2002 Regular School Year Warnings and Conferences-for- the-Record Regarding Respondent's Attendance and Leave On December 13, 2000, in response to Respondent having been absent without authorization a total of three and a half days since the beginning of the previous month, Mr. Blanco sent a memorandum to Respondent, which read as follows: SUBJECT: Notice of Performance Expectation/Requirement Consider this notice a reminder of the importance of your performance expectation in the area of attendance. A review of the most recent Leave Without Pay (LWOP) Report indicates that you have accumulated three and one half (3.5) days (11/2/00- 1 day, 12/4/00- 1 day, 12/7/00- 1/2 day, 12/1/00- 1/2 day and 12/12/00 1/2 day) of unauthorized leave without pay (ULWOP) during the previous twelve months. Be advised that Article XI, Section 2-A.2 of the Bargaining [A]greement between the School Board of Miami-Dade County and Dade County School Maintenance Employee Committee (DCSMEC) states that " . . . Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism . . . shall constitute grounds for which the School Board may terminate employment . . ." This provision serves to insure the required job performance, and prevent any unnecessary impact on other staff members and contributes to the effective operation of this department. Your unauthorized absences adversely impact this department's ability to provide timely service. When you fail to report to work, the projects you are assigned are disrupted and must be either rescheduled or reassigned to other staff members. This in turn causes them to disrupt their work schedules to perform your assignment. In conclusion, you are hereby warned that should you continue to accumulate ULWOP's, appropriate disciplinary action will be taken. Respondent signed the memorandum, acknowledging his receipt thereof. On that same date (December 13, 2000), Mr. Goldberg formally referred Respondent to the School Board's Employee Assistance Program (EAP) based upon, among other things, Respondent's "excessive absences"; his "unauthorized absences"; and his "absences on Monday[s] and/or Fridays." Despite the School Board's efforts to help him, Respondent continued to have attendance problems, which adversely impacted South Central's maintenance operations. For example, he was absent without authorization on July 9, 10, 11, 12, 13 and 18, 2001. On August 7, 2001, Mr. Goldberg held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences" and "performance-related issues." Mr. Goldberg subsequently prepared and furnished to Respondent a memorandum, dated August 28, 2001, in which he summarized what had transpired at the conference and indicated what actions Respondent needed to take in the future. Mr. Goldberg's memorandum read as follows: A conference for the record was held on Tuesday, August 7, 2001. In attendance at this conference were Dr. James Monroe, Executive Director, Maintenance Employment Standards, Mr. Berny Blanco, Coordinator, South Central Satellite, Mr. George Ellis, DCSMEC, Representative, yourself, and this administrator. Your employment history indicates that you were first employed in December of 1990 as a Roofer II, Maintenance Operations South Central Satellite. I verified that your home address is: . . . . The purpose of this Conference was to address your excessive absenteeism: nine and one half unauthorized absences, which you have accumulated in the past twelve months. Also discussed were performance- related issues and the adverse effect your unsatisfactory performance has on your employment status as a Maintenance Operations Employee. You were on unauthorized leave on the following days: July 9, 10, 11, 12, 13, 18, 2001, December 4, and 7(.5), 2000, November 2, 2000, October 23(.5), 18(.5). You were given a written warning for attendance in December 2000 when you accumulated three and one half absences without authorization. You were previously referred to the District's Support agency on two separate occasions, and you declined to avail yourself of this service. You will again be administratively referred to this agency. You are directed to: To be in regular attendance. If in the event of further abs[ences], you are to contact Mr. Blanco or in his place Mr. Louis Martinez. If your absences are due to illness, immediately upon your return to duty, you must submit a note from your treating physician. Failure to comply will result in the absence being recorded as leave without pay, unauthorized (LWOP). To honor the workday by arriving on time. You submitted the attached letter dated August 1, 2001 requesting a career redirection back to [a] Roofing Journeyperson position. Dr. Monroe and I indicated that we would recommend to Mr. Woodson that this request be accepted and you be placed in a Journeyperson's position effective immediately. It was explained to you that this request does not relieve you of your responsibility to improve your attendance nor does it allow you to interfere with the daily operation of the roofing crew under the supervision of an acting or temporary foreperson. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference summary, and to have any such response appended to this document. Respondent signed the memorandum, acknowledging his receipt thereof. Respondent's request to be placed back in a Roofing II position was granted. In a further attempt to assist Respondent to become a more productive employee, the School Board again referred him to the EAP. The 2001-2002 School Year The School Board's efforts to help Respondent were unavailing. Respondent's poor attendance persisted. Moreover, contrary to the instructions he had been given, he failed to notify supervisory personnel of his absences. Not having "heard from [Respondent]," who had been absent without authorization for an extended period of time, Mr. Goldberg, on October 15, 2001, sent the following memorandum, by certified mail, return receipt requested, to Respondent's residence: SUBJECT: EMPLOYMENT INTENTION Please be advised that you have been absent from the worksite on the following days: 9/14/01, 9/17/01, 9/18/01, 9/19/01, 9/20/01, 9/21/01, 9/24/01, 9/25/01, 9/26/01, 9/27/01, 9/28/01, 10/1/01, 10/2/01, 10/3/01, 10/4/01, 10/5/01, 10/8/01, 10/9/01, 10/10/01, 10/11/01 Because these absences have caused . . . __x__ effective operation of the worksite to be impeded . . . I am requesting your immediate review and implementation of any of the following options. Notify the worksite or your intended date of return; Effect leave procedures (request for leave form attached); Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Respondent failed to comply with the directives contained in this memorandum; however, he did attend a meeting on October 23, 2001, at which his "leave history for the past 12 months was presented to [him] and reviewed with [him]." During this 12-month period, Respondent was absent a total of 83.5 days, 40.5 of which he was absent without authorization. Respondent attended a Conference for-the Record held on November 7, 2001, in the School Board's Office of Professional Standards. Also in attendance at the conference were Renaldo Benitez, the Executive Director of the Office of Professional Standards; Dr. James Monroe, the Executive Director of Facilities Operations; Mr. Goldberg; and a DCSMEC representative. The conference was held to address Respondent's "performance assessments-to-date; attendance-to-date; non- compliance with site directives regarding attendance; and . . . future employment status with the Miami-Dade County Public Schools." On November 13, 2001, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You have exceeded the number of days accrued and have failed to follow directives and reminders issued to you at your worksite in reference to your excessive absenteeism. You were provided an opportunity to respond and you said: "I was out on back injury and knee surgery. I thought that the worksite would grant me authorized leave. I knew it would be leave without pay, but not unauthorized. I provided all the doctor's notes to Mr. Goldberg." This administrator told you that if that was the case, you should have effected a medical leave with the leave office. You said, "I didn't know anything about the leave office. I was not aware of those procedures." Dr. Monroe asked you if you were in possession of your Maintenance Employee Handbook, which includes procedures to effect leave and you said, "Yes, I did not read the employee book and that is my fault." Mr. Goldberg showed you the employee intention letter sent to you on October 15, 2001, which you admitted having received, and pointed out that one of the options is for you to implement leave procedures and a Request for Leave Form was attached. You said, "I did get the letter, but there was no form attached." This administrator asked you if you had attempted to contact your union and seek advice from them and you said, "No." You also said: "I just went through a divorce. I don't want to be a bad employee. I have tried to see Mr. Abin with the District's support referral services. He just has not been able to see me. I want to participate." You provided a note from your physician, Dr. Nancy L. Erickson, releasing you for full duty and restricting you to only wearing a knee support. Dr. Monroe said, "This note is satisfactory, but you have to be in attendance and on time every day. It is very important for you to schedule any pending doctor's appointments after work hours because of the large number of absences you have amassed." This administrator reminded you that 40.5 days of leave without pay unauthorized within the last 12 months is more than excessive. According to contractual stipulations, "Unauthorized absences totaling more than five or more workdays during the previous 12 month period shall be evidence of excessive absenteeism." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. You said, "No. sir." The following directives were issued to you during the conference concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact on the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference you were provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct and 6Gx13-4E-1.01, Absences and Leaves. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference, to assume your duties. . . . Please be aware of your right to clarity, explain, and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. The "note from . . . Dr. Nancy L. Erickson" that Respondent submitted during the conference was a forgery. It read as follows: To whom it may concern: I apologize. Mr. Kepler's rehabililative [sic] therapy completion date was incorrect. The correct date in [sic] November 1st. He kept his appointment with me on October 31st which was the completion of his therapy. He is released for full duty and only restriction is to wear knee support. The second sentence of the note referred to a previous note that Dr. Erickson had purportedly written. This previous note, which had been sent, by facsimile transmission, to Mr. Goldberg, was also a forgery. It read as follows: October 16, 2001 Re: Charles Kepler To Whom It May Concern: Mr. Charles Kepler has been under my care for an injury to his left knee. Mr. Kepler has been under going [sic] rehabilitative physical therapy which he will complete the end of this week. Mr. Kepler is released to return to work on Monday October 22, 2001. Respondent was a patient of Dr. Erickson's, but the last time he had seen her was March 29, 2001, and he had only received treatment from her for back pain, not for any knee problems. Mr. Goldberg received other notes concerning Respondent's physical condition and medical needs, in addition to the two mentioned above, purporting to be from Dr. Erickson that were also forgeries. While he may have had the assistance of others, Respondent was the driving force behind this scheme to defraud the School Board through the submission of forged doctor's notes. 2/ Following the November 7, 2001, Conference-for-Record, Respondent continued his "pattern of excessive absenteeism and . . . violation of . . . attendance procedures," which prompted Mr. Goldberg to recommend, in writing, that Respondent be fired. Mr. Goldberg's written recommendation, which was dated November 30, 2001, read, in pertinent part, as follows: I hereby recommend that Mr. Charles Kepler be terminated from his employment with the Miami-Dade County School District Maintenance Operations, South Central Satellite. Mr. Kepler has a continuing pattern or excessive absenteeism and has recurring violations of Maintenance and Operations attendance procedures. He has failed to comply with School Board rules, responsibilities and duties even after he was given specific instructions and directives regarding future absences. * * * On November 26, 2001, he requested one-day sick leave but only had 1/2 day available leave. On November 29 and 30, 2001, he again called in for sick leave with no available time. He never personally notified Mr. Blanco or this administrator of this request for leave time. On three separate occasions, Mr. Kepler was referred to the District Support Agency. He declined to avail himself of its service on every occasion. . . . No immediate action was taken on Mr. Goldberg's recommendation. Respondent was absent without authorization on December 10, 12, 13, 18, 19, 20, 21, 27, 28 and 31, 2001, January 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30 and 31, 2002, and February 1 and 4, 2002. On February 4, 2002, Mr. Goldberg sent a memorandum, by certified mail, return receipt requested, to Respondent's residence containing the following instructions: I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. On or about February 7, 2002, Mr. Goldberg received the following letter from Respondent: This is to inform you that I will be returning to work on Feb. 11, 2002. I will be completing my therapy for my knee on Feb. 9, 2002. I will bring a release from the doctor and she will fax you one. Her assistant has been faxing you updates every week. I will be moving this weekend; my new address is . . . and my new phone number is . . . . If there are any changes with my injury I will contact you Friday after therapy. Respondent did not report to work on February 11, 2002, or at any time thereafter, and he failed to comply with the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." (On numerous occasions, Mr. Goldberg telephoned Respondent's residence in an effort to "contact [Respondent] directly," but he was never able to reach Respondent.) During the week of February 11, 2002, and the several weeks that followed, Mr. Goldberg received, by facsimile transmission, notes, purportedly signed by Dr. Erickson, concerning Respondent's physical ability to report to work. Mr. Goldberg, suspecting (correctly) that the notes might not be genuine, contacted Dr. Erickson's office by telephone and, in response to the inquiries he made, was told that the last contact Dr. Erickson had with Respondent was in late March of 2001. Following this telephone conversation, Mr. Goldberg referred the matter to the School Board's Police Department for investigation. The investigation was conducted by Detective Richard Robinson. After completing his investigation, Detective Robinson issued a written report (Investigative Report G-13852) on May 1, 2002, which contained the following accurate conclusion: Based on statements and evidence gathered during this investigative process, there is sufficient evidence to prove between the dates of July 25, 2002, Mr. Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents stating his inability to return to work, due to an injury. During an interview with Mr. Kepler's physician, Dr. Nancy Erickson, it was confirmed that the physician notes faxed to Mr. Goldberg from Mr. Kepler, and allegedly signed by Dr. Erickson, were forged. Dr. Erickson stated she has not seen Mr. Kepler since March 29, 2001. The allegation of the Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, against employee, Mr. Kepler, Jr., is Substantiated. From November 7, 2001, the date of the last Conference-for-the-Record, to May 23, 2002, Respondent was absent a total of 122 days. All but one of these absences were unauthorized. Respondent repeatedly disregarded the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." Sometime prior to May 31, 2002, Mr. Goldberg learned that Respondent's driver's license had been suspended since December 31, 2001 (as a result of Respondent being arrested for driving under the influence) and that therefore Respondent no longer (and had not since December 31, 2001) met the minimum qualifications to be a Roofer II. Respondent attended a Conference-for-the Record held on May 31, 2002, in the School Board's Office of Professional Standards. Also in attendance at the conference were Mr. Benitez, Mr. Goldberg, and representatives of DCSMEC. The conference was held "to address Investigative Report G-13852 . . . ; [Respondent's] record; and [his] "future employment status with the Miami-Dade County Public Schools." On June 17, 2002, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You were provided an opportunity to respond to your excessive absences and your suspended driver's license. You said, "I was sick. I could not bend my knees, but I still called the tape. My driver's license is suspended, but I'm not guilty. That's why I'm fighting it. I'm in the process of clearing all this up." Mr. Goldberg said, "The directives that you were given were specific, that is, to contact me and not to call the tape. Furthermore, your job requires you to have a valid driver's license in order to perform your duties. You need to take care of your driver's license and submit a letter from your doctor that you can return to work without any restrictions." Investigative Report- G-13852, Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities- Substantiated A copy of the aforementioned investigative report was presented to and reviewed with you in its entirety. You were provided an opportunity to respond to the allegation that: "Between July 25, 2001 and February 25, 2002, Employee Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents, stating his inability to report to work, due to injury." You said, "I did not submit anything forged. Everything came from her office as far as I know. I have never forged any doctor's letter." This administrator asked, "Why were these medical notes faxed from a different medical center and some even had misspellings." You said, "I don't know. It was the girl in the office that wrote them." I reminded you that Dr. Nancy L. Erickson, O., is an anesthesiologist and she stated that she has only seen you three times. You said, "That's because they don't want to deal with me anymore. The other doctor that she sent me to was afraid that I would sue him." I asked you again if any of these notes were false and you said, "No." Mr. Bell [a DCSMEC representative] said, "He will submit documentation of his knee surgery." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with M-DCPS. You said, "No, sir." Should you return to work, the following directives were re-issued to you during the conference concerning future absences: Be in regular attendance. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay, Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. In addition, the following directives herein delineated were also issued to you during the conference: Adhere to all (M-DCPS) School Board Rules and regulations at all times. Do not forge any documents related to your employment with M-DCPS. Do not submit any forged documents for any reason to M-DCPS. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference, you were provided with a copy of School Board Rule[] 6Gx13-4A- 1.21, Responsibilities and Duties/Employee Conduct. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference to assume your duties. You were advised to keep this information presented in this conference confidential and not discuss this with co- workers. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Chief Facilities Officer of Maintenance, and the Director of South Central Satellite. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Chief Facilities Officer of Maintenance will compel formal notification of the recommended action or disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have any response appended to your record. Respondent did not provide supervisory personnel with proof that his driver's license had been reinstated, nor did he "submit a letter from [his] doctor that [he] c[ould] return to work without any restrictions," as he had been instructed to. He remained out of work, accumulating additional unauthorized absences. On June 23, 2002, Respondent attended a meeting in the Office of Professional Standards, along with Mr. Benitez and Mr. Goldberg, at which he was advised of the following: A legal review of the case file and the summary information determined that you, Mr. Charles M. Kepler, be recommended for dismissal for the following charges: Just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. On August 9, 2002, Merrett Stierheim, the School Board's Superintendent of Schools, sent Respondent the following letter: I am exercising my responsibility as Superintendent of Schools and recommending to The School Board of Miami-Dade County, Florida, at its scheduled meeting of August 21, 2002, that the School Board suspend you and initiate dismissal proceedings against you from your current position as Roofer II at South Central Maintenance effective at the close of the workday, August 21, 2002, for just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. If you wish to contest your suspension and dismissal, you must request a hearing in writing within 20 calendar days of the receipt of notice of the Board action, in which case, formal charges will be filed and a hearing will be held before an administrative law judge. At its August 21, 2002, meeting, the School Board took the action recommended by Mr. Stierheim. At no time from May 23, 2002, until the date of his suspension did Respondent report to work. All of his absences during this period were unauthorized. Although Respondent had accumulated an extraordinary number of unauthorized absences at the time of his suspension, the number would have been even greater had Mr. Goldberg not "worked with [Respondent]" and converted some absences, which were initially unauthorized, to "vacation or sick days when [Mr. Goldberg] could" (following his review of medical documentation belatedly provided by Respondent).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment with the School Board pursuant Article XI of the DCSMEC Contract. DONE AND ENTERED this 26th day of February, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 26th day of February, 2003.
The Issue The issue for determination is whether Respondent should be suspended and dismissed from employment with Petitioner.
Findings Of Fact No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Ms. Woods was employed as a paraprofessional with the School Board. At the time of hearing, Ms. Woods had been a paraprofessional with the School Board for 19 years. No dispute exists that, at all times material hereto, Ms. Woods was a member of the United Teachers of Dade (UTD) and was subject to the terms and conditions of the collective bargaining agreement between UTD and the Miami-Dade County Public Schools (UTD Contract). At all times material hereto, Ms. Woods was assigned as a paraprofessional to Robert Renick Education Center (Robert Renick). She was assigned to assist Alexander Phillips, who is an exceptional student education (ESE) teacher, in an ESE class. Robert Renick is a school for ESE students. All of the students are emotionally, behaviorally disturbed, and some have additional disabilities. They are dually diagnosed with autism and as educable mentally handicapped and trainable mentally handicapped. Since the 2004-2005 school year, Fred Clermont has been employed at Robert Renick as an ESE teacher. Prior to October 18, 2007, one of Mr. Clermont’s students had hit one of the staff members at Robert Renick. Mr. Clermont testified that, after the incident, Ms. Woods told him that, if one of his students ever hit her, she would “fuck [him (Mr. Clermont)] up.” Mr. Clermont’s testimony is found to be credible. On October 18, 2007, at the time of school dismissal for Robert Renick, Mr. Clermont was escorting one of his students, A. F., who was nonverbal, to the flagpole, a common area for students, whose bus was late, to wait. Because the student was hitting himself and Mr. Clermont and was spitting and kicking, Mr. Clermont shouted for everyone to move back and clear a path through which he (Mr. Clermont) could bring the student. Students and staff were moving out of the way; however, Ms. Woods did not. A. F. struck Ms. Woods in the back or shoulder area. Mr. Clermont testified that Ms. Woods turned around, pushing A. F. to the ground, and struck him (Mr. Clermont) in the chest. Mr. Clermont immediately apologized to Ms. Woods for A. F. hitting her. Mr. Clermont testified that Ms. Woods responded to his apology by shouting obscenities at him and reminding him of what she told him earlier as to what she would do if one of his students ever hit her. Mr. Clermont’s testimony is found to be credible. The student, A. F., became further upset, got out of his harness, and struck another staff member, David Jefferson, Dean of Discipline. Mr. Clermont and Mr. Jefferson were able to bring A. F. under control by holding him down and calming him. Mr. Clermont further testified that, as he was getting up from holding A. F. down, he (Mr. Clermont) was hit on the side of his face by Ms. Wood; that the blow knocked his (Mr. Clermont’s) sunglasses off his face and one of his contact lens out of his eye; and that Ms. Woods was shouting obscenities at him (Mr. Clermont)—“Yeah, mother fucker, I told you I would hit your mother fucking ass. I told you, bitch . . . .” Additionally, Mr. Clermont testified that Ms. Woods looked at her cellular telephone and declared that they were off the clock and he (Mr. Clermont) was going to get his “ass whupped now”; and that she kicked-off her shoes and earrings and lunged at him, only to be held back by Mr. Phillips. A. F. was later placed safely on his bus. Mr. Clermont’s testimony is found to be credible. Mr. Jefferson testified at the hearing. He testified that, when Mr. Clermont requested persons to move and make a path through which he (Mr. Clermont) could bring A. F., Ms. Woods stated that she was not moving and that, if that “retarded mother fucker hit me, I’m going to hit your punk ass”— referring to Mr. Clermont. Mr. Jefferson further testified that he witnessed Ms. Woods punch Mr. Clermont in the chest and that Mr. Clermont apologized to Ms. Woods. Additionally, Mr. Jefferson testified that, after he and Mr. Clermont were able to restrain A. F., Ms. Woods hit Mr. Clermont in the face, knocking his (Mr. Clermont’s) sunglasses off; that Ms. Woods looked at her cellular telephone and indicated the time, as no longer being within the work day; that Ms. Woods kicked-off her shoes and removed her earrings; and that Ms. Woods was restrained by Mr. Phillips. Mr. Jefferson did not testify that he observed Ms. Woods strike or push the student. Mr. Jefferson’s testimony is found to be credible. Mr. Phillips testified at hearing. At the time of the incident on October 18, 2007, he was standing next to Ms. Woods. He testified that he observed Ms. Woods strike Mr. Clermont twice, look at her watch, indicating that the work day had ended, and kick-off her shoes. Mr. Phillips further testified that he grabbed Ms. Woods because she was a good paraprofessional and he did not want to get into trouble. Mr. Phillips did not testify that he observed Ms. Woods strike or push the student. Mr. Phillips testimony is found to be credible. Bernadette Adams, a paraprofessional at Robert Renick, testified at the hearing. She was also standing next to Ms. Woods at the time of the incident on October 18, 2007. Ms. Adams testified that she did not observe Ms. Woods push or strike the student. Ms. Adams also testified that she heard Ms. Woods express to Mr. Clermont that she (Ms. Woods) told him would happen if the “autie mother fucker . . . .” hit her and that she (Ms. Woods) was going to “hit [his] punk ass.” Further, Ms. Adams testified that she observed Ms. Woods’ arm come down, kick off her shoes, and indicate to Mr. Clermont that they were off the clock. Furthermore, Ms. Adams testified that Mr. Clermont responded to Ms. Woods by asking Ms. Woods whether she (Ms. Woods) was “fucking crazy.” Ms. Adams left the scene of the incident. Ms. Adams’ testimony is found to be credible. Shayon Tresvant, the indoor suspension teacher at Robert Renick, testified at the hearing. At the time of the incident on October 18, 2007, he was assisting with dismissal and was approximately 10 or 11 feet from Mr. Clermont and Ms. Woods. Mr. Tresvant did not observe Ms. Woods strike or push the student; however, he did observe Ms. Woods acting in an aggressive manner towards Mr. Clermont. Additionally, Mr. Tresvant heard Mr. Clermont ask Ms. Woods why she had hit him (Mr. Clermont) and Ms. Woods mention the timeframe or the time of the day. Mr. Tresvant testimony is found to be credible. Ms. Woods testified at hearing. She admits that she observed Mr. Clermont having problems controlling and calming down student A. F. Ms. Woods testified that she felt a punch or hit to her arm and turned around and, in turning around, that she may have struck the student, but, that, if she did, it was not intentional. Taking into consideration the testimony of other witnesses at hearing, Ms. Woods’ testimony, regarding the striking of A. F., is found to be credible. The evidence demonstrates that Ms. Woods did not intentionally strike the student A. F. Further, Ms. Woods testified that she requested Mr. Clermont to get the student under control and that she observed Mr. Clermont laughing. As a result, Ms. Woods testified that she concluded that Mr. Clermont was joking with her and playfully punched him and told him to “stop playing.” Ms. Woods’ testimony is not found to be credible. Additionally, Ms. Woods testified that, after Mr. Clermont and Mr. Jefferson got the student under control and on the bus, she (Ms. Woods’) touched Mr. Clermont’s neck in a playful manner and that Mr. Clermont began screaming and cursing at her. Ms. Woods testified that she vocally objected to Mr. Clermont raising his voice to her, looked at her watch and indicated that they were not off work until 3:50 p.m., and told Mr. Clermont not to “play with her.” Also, Ms. Woods testified that, at no time, did she intentionally strike Mr. Clermont. Ms. Woods’ testimony is not found to be credible. The evidence demonstrates that Ms. Woods intentionally struck Mr. Clermont. After placing the student A. F. on the bus, Mr. Clermont reported the incident with Ms. Woods to the principal of Robert Renick, Allison Harley, Ed.D. While reporting the incident to Dr. Harley, Mr. Clermont was highly emotional, distraught, and “crying.” At that time, Mr. Clermont was not certain of the action that he wanted to take. The following day, October 19, 2007, Mr. Clermont indicated to Dr. Harley that he wanted to report the incident to the school police. He prepared a written statement, which was witnessed by Dr. Harley. On October 19, 2007, Mr. Clermont was referred to a Workers’ Compensation physician. Mr. Clermont was diagnosed with a skull contusion. On October 19, 2007, Mr. Clermont made a formal complaint to the school police. The procedure for employee investigations is set forth in the School Board’s Personnel Investigative Model (PIM), which has been adopted by the UTD. Pursuant to the PIM, once an allegation is made, the site administrator (here, the principal, Dr. Harley) contacts the school police. Additionally, the accused employee is notified verbally of allegations within 24 hours and in writing within 48 hours. Further, pursuant to the PIM, as to investigations which may lead to suspension or dismissal of an employee, only the Superintendent or the Superintendent’s designee may authorize the investigation. When an officer of the school police is assigned to investigate the allegation(s), the officer meets with the complainant, interviews witnesses, and generates a report, referred to as a lead sheet. For a criminal allegation, the school police’s General Investigative Unit (GIU) maintains the lead sheet, conducts the investigation, and presents the lead sheet to the State Attorney’s Office. At the conclusion of the investigation, the accused employee is notified of the outcome of the investigation; forwarded a copy of the investigative report; advised of his or her right to request a supplemental report; and given five days to file written exceptions, which could possibly change the outcome of the investigation. On October 19, 2007, when the incident was reported to the school police and which was a Friday, Dr. Harley was not able to verbally notify Ms. Woods because Ms. Woods was not at Robert Renick; she was absent. On Monday, October 22, 2007, Dr. Harley notified Ms. Woods verbally of the allegations. By letter, dated October 22, 2007, Dr. Harley notified Ms. Woods in writing of the allegations, identifying, among other things, the case number, the complainant, and the nature of the complaint, which was “simple battery.” By her signature, Ms. Woods acknowledged that she received the written notice; and by dating the written notice, indicated that she (Ms. Woods) received the written notice on October 23, 2007. Pending the outcome of the investigation, Ms. Woods was removed from Robert Renick. She was placed on paid administrative placement in an alternate assignment at FDLRS- South. Detective Rafael Gomez was assigned to and did conduct the investigation regarding the complaint against Ms. Woods. The Superintendent’s designee who authorizes investigations which may lead to suspension or dismissal of an employee is the Assistant Superintendent for the Office of Professional Standards (OPS). The lead sheet indicates that Officer Michael Alexander assigned the investigation to Detective Gomez and authorized Detective Gomez to perform the investigation. By letter dated October 26, 2007, the School Police notified Ms. Woods, among other things, that a criminal investigation was being conducted, that the complainant was Mr. Clermont, that the nature of the complaint was “Battery on [a] School Employee,” and that she would have an opportunity to provide a formal statement, but that she had a right to decline to give a formal statement. Ms. Woods declined to give a formal statement on the advice of counsel. Having completed the investigation, Detective Gomez determined that probable cause existed to support the allegation that Ms. Woods violated School Board Rules 6Gx13-5D-1.07, Corporal Punishment-Prohibited and 6Gx13-4-1.08, Violence in the Workplace. The investigative report was submitted by GIU to OPS. By letter dated November 9, 2007, OPS notified Ms. Woods, among other things, that probable cause was found as a result of the investigation, simultaneously providing a copy of the investigative report, and that she had an opportunity, within five days to submit written exceptions. Ms. Woods acknowledged receipt of the letter on November 13, 2007, by signing and dating the letter. Subsequently, a conference-for-the-record (CFR) is held with the affected employee by OPS to provide an opportunity for the employee to respond to allegations. At the conclusion of the CFR, the affected employee is informed that the case will be presented to the Assistant Superintendent of OPS and the employee’s site supervisors to obtain a recommendation for disciplinary action. A summary of the CFR is forwarded to the affected employee and the affected employee is advised within the summary that he/she has a right to append any additional information that was not included in the summary. Prior to School Board action, a meeting is held with the affected employee, during which he/she is verbally notified of the recommended disciplinary action and of his/her right to request a hearing after the School Board takes official action. On December 7, 2007, a CFR was held with Ms. Woods by OPS to discuss the finding of probable cause and her future employment with the School Board. In addition to Ms. Woods, attendees at the CFR included, among others, Ana Rasco, Ed.D., Administrative Director of OPS; Will Gordillo, Assistant Superintendent, Division of Special Education; Sonja Clay, Executive Director, Division of Special Education; Dr. Harley; and members of UTD, Sherri Daniels, UTD Union Representative, and Joy Jackson, UTD Steward, Robert Renick. During the CFR, Ms. Woods stated that she did not intend to strike the student A. F., and that she was attempting to avoid being struck by A. F. when she allegedly struck him. Additionally, during the CFR, Ms. Woods was provided information regarding the options of resignation or retirement, but she declined to exercise either one of the options. At the conclusion of the CFR, the recommendation was to terminate Ms. Woods. A summary of the CFR was prepared and a copy was provided to Ms. Woods. Even though Dr. Harley had written favorable recommendations on Ms. Woods’ behalf prior to the incident, she (Dr. Harley) still agreed with the recommendation made at the CFR meeting. Dr. Harley testified at hearing that no such incident had occurred at the time that she wrote the recommendations; that violence in the workplace could not be tolerated; that staff was teaching children not to be aggressive; and that staff must exhibit what they teach. Dr. Harley’s testimony is found to be credible. By memorandum dated January 29, 2008, Maria Rojas, Associate Superintendent of OPS, advised Dr. Rudolph Crew, Superintendent of Schools, among other things, of the allegations, the investigation, and the finding of probable cause. Ms. Rojas’ recommendation was to suspend Ms. Woods employment with the School Board, without pay, and to begin dismissal proceedings against Ms. Woods, effective at the close of the workday on March 12, 2008. By memorandum dated February 22, 2008, Ms. Woods was directed to attend a meeting at OPS on February 26, 2008, to address the recommendation to be made at the School Board meeting on March 12, 2008. She was notified at the meeting on February 26, 2008, that termination of her employment would be recommended at the School Board meeting. By letter dated February 27, 2008, Ms. Woods was provided written notification that, at the School Board meeting on March 12, 2008, the Superintendent of Schools would recommend suspension, without pay, and the initiation of dismissal proceedings against her for just cause for, not only the two original violations, but, also, for violating School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics. OPS prepared an agenda School Board item for the School Board meeting being held on March 12, 2008, regarding the recommended action against Ms. Woods. The agenda item, among other things, quoted verbatim the information contained in the letter dated February 27, 2008. OPS did not provide Ms. Woods a copy of the agenda item. The standard operating procedure of OPS is to not provide a copy of such agenda item to the affected employee. At its meeting on March 12, 2008, the School Board accepted the recommendation and took action to suspend Ms. Woods and to initiate dismissal proceedings against her from all employment with it. The School Board’s decision was based upon the violations set forth in the agenda item. Ms. Woods timely protested the action taken by the School Board and requested an administrative hearing. On May 5, 2008, the School Board filed in the instant matter a Notice of Specific Charges. Ms. Woods was served a copy of the Notice of Specific Charges. As a result of the allegations against Ms. Woods, she was arrested. She was charged with one felony and two misdemeanors, but, at the time of the CFR, only one misdemeanor remained, with “no action” being taken on the other charges. Ms. Woods pled no contest to the remaining misdemeanor charge, with the court, among other things, withholding adjudication and placing her on probation. Additionally, the court entered a Stay Away Order, Non-Domestic Violence against Ms. Woods on behalf of Mr. Clermont and the student A. F. Ms. Woods has not been the subject of prior disciplinary action by the School Board. The evidence demonstrates that, prior to the incident on October 18, 2007, Ms. Woods was perceived by the principal and assistant principal at Robert Renick as an outstanding and effective paraprofessional. The evidence also demonstrates that, prior to the incident on October 18, 2007, Ms. Woods had never been engaged in physical contact with a student or co-worker.
Recommendation 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 suspending Monique S. Woods without pay from March 12, 2008, through the end of the 2008-2009 school term and under other terms and conditions deemed appropriate by the Miami-Dade County School Board. DONE AND ENTERED this 30th day of April 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2009.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Notice of Specific Charges.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities in Miami-Dade County. Respondent is employed by the School Board as a school bus aide. She is currently assigned to the John Schee Transportation Center. Respondent was initially hired by the School Board on September 8, 1992. She was terminated, effective October 31, 1995, for having been absent without authorization for three consecutive days. The School Board rehired Respondent on May 3, 2000, and assigned her to the Northwest Transportation Center. On October 11, 2002, Respondent was given her current assignment at the John Schee Transportation Center. As a school bus aide employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides, in pertinent part, as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: . . . . (2) separation, suspension, dismissal, and termination of employees for just cause; . . . . It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: A. Discipline or discharge of any employee for just cause; . . . . * * * Article XI of the AFSCME Contract is entitled, "Disciplinary Action." Section 1 of Article XI is entitled, "Due Process." It provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal.[2] A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (1.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary.[3] The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled, "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract[,] the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures. Section 4 of Article XI is entitled, "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four [sic] distinct types of separation. Voluntary-- . . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Chief Personnel Officer for Human Resources a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence.[4] Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- . . . . AFSCME, Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause. Layoff-- . . . . As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s], regulation[s], and [p]olic[ies]. If she does not, she may be disciplined pursuant to the AFSCME Contract.5 Among the School Board's "rule[s]" are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. * * * School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." School Board bus drivers and aides are governed by the following "[a]ttendance [p]olicy" set forth in the School Board Transportation Department's Handbook for Drivers, Aides and Operations Staff: Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract. AUTHORIZED ABSENCES For absences to be authorized, they must be reported to the driver's or aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time, but no later than before the next scheduled report time. Even in an emergency, every possible effort must be made to inform the Dispatch Office. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Leave forms must be completed promptly for payroll purposes. UNAUTHORIZED ABSENCES Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver or aide does not report to work within 15 minutes after the scheduled report time, or does not call in absent before the report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. Additionally, any employee who does not have available sick/personal time may be charged with an unauthorized absence. NOTIFICATION OF ABSENCES -Drivers and aides must notify their Transportation Center[']s Dispatch Office as soon as they have determined they cannot report to work. Drivers are not to make arrangements on their own for a substitute. All arrangements must be made by the Dispatch Office. -If a driver will not be reporting for work on regular school days, the driver must call in immediately and speak with the Dispatcher, or the Field Operations Specialist. -If a driver cannot report to work because of an emergency situation, the driver must contact the Dispatch Office as soon as possible. If the situation requires a driver to leave the area, the driver should have a relative or friend contact the office for the driver. -If the absence will occur sometime in the future, the Dispatch Office should be given as much advance notification as possible. -When the Dispatch Office is contacted, an explanation for the absence should be given along with the length of absence and estimated date of return. -If the driver is off from work for more than one day, the driver must contact the office each day, prior to the report time, with a complete update of the situation. The only times the driver does not have to contact the office on a daily basis are as follows: -Admission to a hospital as a patient -Maternity leave -A doctor's work release for a specified number of days -Extended sick leave -Approved leave of absence -Out of town CHECK-IN POLICY -All employees are expected to arrive at work on or before their scheduled report time. -Drivers and aides will be given a five minute grace period to report to work, during which no disciplinary nor financial actions will be taken. For example, if the driver or aide is scheduled to report for work at 6:00 a.m., but signs-in by 6:05 a.m., the driver or aide will be allowed to go out on the assigned route with no repercussions. -Drivers and aides who report to work 6-15 minutes after the scheduled report times will be considered "tardy." Tardy drivers and aides will be permitted to work. However, the dispatch may assign a stand-by or substitute driver or aide to the route of the tardy employee. Drivers and aides who are more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers and aides and will not be allowed to operate their regularly assigned route. For the tardy driver or aide who was replaced by a substitute or stand-by driver or aide, such driver or aide will then be assigned as substitute for other routes needing coverage, as requirements dictate. A record will be kept documenting all tardiness. Lost time will be accumulated for tardiness and employees will be docked pay in 1/2 day increments. -Drivers and aides who report to work 16 or more minutes after the scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on "unauthorized leave-without pay" (ULWOP) and will be subject to disciplinary action in accordance with the American Federation of State, County, and Municipal Employees (AFSCME) Collective Bargaining Agreement -Extenuating circumstances will be evaluated by the Center Director and, upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. DOCUMENTATION It is the responsibility of the drivers and aides to report to the supervisor in order to complete and/or produce all required paperwork related to the absence on the first workday upon return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. During the time she has been assigned to the John Schee Regional Transportation Center, Respondent has had a history of poor attendance, which has adversely impacted the operations of the center. On February 21, 2003, Respondent was issued a verbal warning for an unauthorized absence. On March 20, 2003, Respondent was issued the following written warning regarding her attendance by Dr. Michael Exelbert, a Coordinator III at the John Schee Regional Transportation Center: Payroll records indicate that you have accrued 7 days of Unauthorized Leave Without Pay and/or Tardies. Records indicate you were verbally warned regarding this issue on Feb. 21, 2003. Article V, Section 27 of the contract between Miami-Dade County Public Schools and AFSCME 1184 states: "Unauthorized Absence - Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI." Article XI, Section 4B of the contract between Miami-Dade County Public Schools and AFSCME 1184 states: "Excessive Absenteeism/Abandonment of Position - An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence." Section 9 of the M-DCPS, Department of Transportation Handbook for Drivers, Aides and Operations Staff addresses the department's Attendance Policy. It states: " Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract." This section addresses: 9.1-Authorized Absences, 9.2-Unauthorized Absences, 9.3- Notification of Absences, and 9.4-Check-In Policy. You are instructed to review this section of your handbook. Deficient performance exhibited by the accrual of unauthorized absences and/or tardiness negatively impacts the department, coworkers and the educational program of the students we serve. This behavior is unacceptable and must be corrected by reporting to duty when scheduled and reporting on time. With this memorandum, you are warned that future occurrences of Unauthorized Absences and/or Tardies will lead to progressive disciplinary action compliant with District policies and procedures and the contract between M-DCPS and AFSCME Local 1184. Be advised M-DCPS has a District Support Agency that may be able to assist you regarding attendance deficiencies and can be reached at . . . . You are encouraged to contact them for assistance in regards to your attendance deficiencies. Please contact me if additional information is required. Respondent signed this written warning, acknowledging receipt thereof, on March 26, 2003. On October 23, 2003, Mr. Exelbert held a conference- for-the-record with Respondent to discuss "attendance requirements." The following day, Mr. Exelbert prepared a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A Conference-For-The-Record was held in my office on Thursday, October 23, 2003. You were asked if you were a member of the Union. You indicated that you were, but did not seek representation. Present at the meeting was Cynthia Brown, Bus Attendant, and this administrator. You were told the purpose of today's conference was to review attendance requirements. You were given a copy of the Notification of this Conference-For-The-Record. You acknowledged receiving and signing receipt for today's Conference-For-The-Record. You also received: a copy of all LWOP-U absences since your written warning and a copy of your M-DCPS screen 026 leave status dates. You received a Verbal Warning about your LWOP-U absences on February 21, 2003, and a written warning about you[r] LWOP-U absences on March 20, 2003. During those meeting the following LWOP-U absences were discussed. November 22(D), 2002. December 05(A), 06(D), 09(D), 10(D), 11(D), 20(P), 2002. February 04(P), 06(A), 11(A), 13(A), 14(P), 20(D), 24(D), 25(A), 2003. March 06(A), 10(D), 11(D), 12(D), 13(D), 2003. For today, the following LWOP-U attendance days since the Written Warning on March 20, 2003 were discussed: March 27(A), 2003. April 11(D), 17(A), 21(A), 23(D), 24(D), 2003. May 09, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, 30, 2003 (ALL Days). June 02, 03, 04, 05, 2003 (ALL Days). August 26(A), 29(A), 2003. September 04(A), 05(A), 11(A), 2003. A total of fifty occurrence of LWOP-U The seriousness of missing work and good attendance was discussed. You were given copies of Section 9 (Attendance Policy) from the Handbook of School Bus Drivers, Aides and Operations Staff. You indicated that you would bring documentation to change the unexcused absences of: April 11, 17, 21, 23, 24, 2003, May 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, 30, 2003, June 02, 03, 04, 05, 2003, (due to medical problems that you experienced at those times), and that you could bring in other documentation for: August 26, 29, 2003 and September 04, 05, 11, 2003, as a result of domestic problems you experienced at those time, from unacceptable to LWOP-A. You were asked if you had any other comments. You indicated that by Friday, October 31, 2003, you would bring in additional documentation for other dates listed above. You were told that this case would now be sent to Mr. George C. Millar, Director of the John Schee Regional Transportation Center and possibly to the Office of Jerry Klein, District Director, Department of Transportation Administration for further review. You were told that a summary would be prepared of today's session. You were apprised of your right to append, to clarify, or to explain any information recorded in this conference, by this Summary. You were asked to review this summary on Monday October 27, 2003, after 8:30AM, in Gail Allen, the Executive Secretary's Office. Respondent signed this memorandum, acknowledging receipt thereof, on October 29, 2003. Mr. Exelbert referred Respondent to the School Board's Employee Assistance Program for help in dealing with problems affecting her attendance. George Millar, the Director of the John Schee Regional Transportation Center, held a conference-for-the-record with Respondent on February 13, 2004. On February 17, 2004, Mr. Millar prepared a memorandum in which he summarized what had transpired at the conference. The memorandum read, in pertinent part, as follows: * * * CONFERENCE DATA It was stated that over the previous 12- month period, excluding summer, you have accrued 35.5 days of unauthorized absences. It was noted that several days previously unauthorized had been changed to authorized with a current net total of 35.5 days . . . . It was noted that the 35th day does not show on the report because the pay period just closed. A review of the record showed the following incidences attempting to assist you improve your attendance: Verbal Warning - February 21, 2003 Written Warning - March 20, 2003 . . . Conference for the Record - October 23, 2003 . . . . District Support Agency Referral - October 23, 2003 . . . . You were asked to present any additional documentation or response to address the issues presented. You stated that you were ill at the end of last year and you brought documentation. During a portion of that time you were hospitalized. You were instructed to submit documentation and it would be reviewed and considered for changing the identified absences to authorized. Your AFSCME Representatives were asked if they had any comment, Mr. Houghtaling said no. Action Taken The following section of the contract between Miami-Dade County Public Schools and AFSCME Local 1184 and Department of Transportation Handbook were reviewed and you acknowledged understanding their meaning and intent Article V, Section 27 . . . . Article XI, Section 4, Paragraph B . . . . Section 9 Attendance - M-DCPS, Department of Transportation Handbook for Drivers, Aides and Operations Staff . . . . The following instructions were given at the conference: Report for duty each day and shift that you are scheduled to work. Call in or submit a leave card in advance of your reporting time when you intend to be absent. Present documentation for absences not covered by accrued leave time to this administrator or Dr. Michael Exelbert upon your return to duty. Conclusion You were instructed that this conference would be summarized and forwarded to the Administrative Director, Department of Transportation, and the Office of Professional Standards for review and subsequent disciplinary action as merited. You were informed of your right to appendage (provide a written statement), which will be attached to the conference summary if you feel any facts or information is misrepresented or statements omitted which occurred during the conference. You will have 24 hours from receipt of the conference summary to submit this appendage. These statements concluded the conference. Respondent signed this memorandum, acknowledging receipt thereof, on February 24, 2004. Barbara Moss, the School Board's Office of Professional Standards' District Director, held a conference- for-the-record with Respondent on March 16, 2004, to discuss Respondent's absenteeism and her "future employment status" with the School board. In the 12-month period prior to this conference, Respondent had been absent a total of 72 days and had 33.5 days of unauthorized absences. On March 24, 2004, Ms. Moss prepared and furnished Respondent a memorandum in which Ms. Moss summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Ms. Moss wrote the following: Action Taken You were advised of the availability of services from the District's support referral agency. The following directives are herein delineated which were issued to you during the conference concerning future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. George Millar or designee. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Millar or designee upon your return to the site. Failure to comply will result in the absence being recorded as Leave Without Pay, Unauthorized (LWOU). During the conference, you were directed to comply and provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4E-1.01, Absences and Leaves. You are advised of the high esteem in which employees are held and of the District's concern for any behavior, which adversely affects this level of professionalism. Action TO Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of District Compliance Units, the Administrative Director of Transportation, and the Director of [the] John Schee Transportation Center. Upon completion of the conference summary, a legal review by the School Board attorneys will be requested. Receipt of their legal review with endorsement by the Chief Communications Officer, will compel formal notification of the recommended disciplinary action. All disciplinary actions will be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. You were apprised of your right to clarify, explain, and respond to any information recorded in this conference by this summary, and to have any such response appended to your record. At its June 16, 2004, meeting, the School Board "took action to suspend [Respondent] and initiate dismissal proceedings against [her]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board pursuant Article XI, Section 4B, of the AFSCME Contract. DONE AND ENTERED this 22nd day of March, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2005.
The Issue The issue in this case is whether the Respondent's employment by the School Board of Miami-Dade County, Florida, should be terminated.
Findings Of Fact At all times material hereto, the Respondent was employed by the Petitioner as a bus driver and was assigned to Central East Regional Transportation Center (Central East), which is within the school district of Miami-Dade County. The Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) bargaining unit. At all times material, Randy Mazie (Mazie) was the Director of Central East. Juan Perez was the Coordinator of Central East (reporting to Mazie), and Frank Hernandez and Florence Birch were Administrative Assistants (reporting to Perez and Mazie). When a bus driver is absent without advance notice, it often has a substantial impact on the work site. Absenteeism of bus drivers causes delays on that particular route and typically puts stress on both students and school site employees. On a number of occasions, Mazie personally had conversations with the Respondent about her poor attendance record and the consequences of her absenteeism. In addition, employees, including the Respondent, received training about attendance policies and procedures. In March 2000, the Respondent was referred to the Employee Assistance Program. On April 28, 2000, the Petitioner received notification that the Respondent declined to participate in the Employee Assistance Program. The Petitioner accommodated the Respondent by approving leaves of absence for the Respondent during the following time- frames: January 21, 1998, through April 1, 1998; April 2, 1998, through April 1, 1999; November 29, 1999, through January 2, 2000; January 3, 2000, through January 31, 2000; and February 25, 2000, through March 3, 2000. On November 19, 1999, School Board administrators held a conference with the Respondent to address the Respondent’s excessive absenteeism. At the conference the Respondent was advised that she had been absent a total of 52.5 days since April 1999, including 18 days of unauthorized absences. In addition, the Respondent was advised that continued absenteeism would result in a second conference. At the conference, the Respondent was asked if there were any mitigating circumstances for her absences. The Respondent did not provide any explanation for her unauthorized absences. Shortly thereafter, the Respondent received a written summary of the conference. On March 2, 2000, School Board administrators held a second conference with the Respondent to address the Respondent’s continued excessive absenteeism. At the conference, the Respondent was advised that she had been absent without authorization for 6.5 days since the first conference. In addition, the Respondent was advised that she had been absent a total of 74 days during the past 12-month period, including 24.5 days of unauthorized absences. The Respondent was instructed that continued absenteeism would result in a third and final conference, which could result in termination of her employment. At the second conference, the Respondent was asked if there were any mitigating circumstances for her absences. The Respondent did not provide any explanation for her unauthorized absences. Shortly thereafter, the Respondent received a written summary of the second conference. On May 31, 2000, School Board administrators sent a memorandum to the Respondent regarding the Respondent’s continued absenteeism. In the memorandum, the Respondent was directed to report to duty daily, as all of her leave time had been exhausted. The Respondent refused to sign a copy of the memorandum. Notwithstanding the above directive, the Respondent’s excessive absenteeism continued. From November 30, 2000, to December 19, 2000, the Respondent was absent from work. On January 4, 2001, the Respondent presented the School Board Administrators with a medical document signed by the Respondent’s physician purporting to excuse the Respondent from work from November 27, 2000, through January 3, 2001. On January 6, 2001, the School Board Administrators discovered that the Respondent’s physician did not excuse the Respondent from work from November 27, 2000, through January 3, 2001, and that the medical document provided by the Respondent had been falsified. On January 22, 2001, School Board administrators held a third conference with the Respondent to address the Respondent’s continued excessive absenteeism and submission of fraudulent medical documentation. At the conference, the administrators advised the Respondent that she had been absent a total of 38 days during the past 12-month period. The Respondent was also informed that, since March 2000, she had been absent without authorization for 18 days. At the conference, the Respondent was afforded an opportunity to refute the charges that she had submitted fraudulent medical documentation. Despite this opportunity, the Respondent did not refute the charges or provide an explanation. Thereafter, the Respondent received a written summary of the conference; however, the Respondent refused to sign the summary. On February 22, 2001, the Office of Professional Standards held a conference with the Respondent to address the Respondent’s excessive absenteeism and submission of fraudulent medical documentation. At the conference, the Respondent was afforded an opportunity to refute the charges that she had submitted fraudulent medical documentation. Despite this opportunity, the Respondent did not refute the charges or provide an explanation. The Respondent received a written summary of the conference. During the hearing, the Respondent testified that she went to the emergency room (but was not admitted to the hospital) during the time-frame from November 30, 2000, through December 19, 2000. The emergency room personnel told her to follow up with her physician. Notwithstanding these directions, the Respondent admitted that she failed to follow up with her physician. During the time-frame from November 30, 2000, through December 19, 2000, School Board administrators directed the Respondent to submit documents indicating that she was under medical care. Thereafter, the Respondent falsified the medical note. The Respondent also generally testified during the hearing that she was undergoing counseling by a social worker for stress related to her personal life. However, the Respondent never offered as evidence any records from the social worker, and Mazie testified that she never had a conversation with him about meeting with a social worker. Moreover, the Respondent admitted that the School Board Administrators authorized absences related to her daughter’s pregnancy/illness, as well as housing problems she encountered during a storm. In addition, the Respondent conceded that the School Board never denied the Respondent a requested leave of absence. Between April 1, 1999, and November 19, 1999, the Respondent was absent without authorization for 20.5 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 20 days. Between November 19, 1999, and March 2, 2000, the Respondent was absent without authorization for 8.5 days. Between March 3, 1999, and March 2, 2000, the Respondent was absent without authorization for 28.5 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 51 days. Between January 23, 2000, and January 22, 2001, the Respondent was absent without authorization for 22 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 12 days. Between March 3, 2000, and March 3, 2001, the Respondent was absent without authorization for 21 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 8 days. Between November 30, 2000, and December 19, 2000, the Respondent was absent without authorization for 14 consecutive days. Based on the Respondent’s leave history records, she was absent without authorization, between March 3, 2000, and March 3, 2001, as follows: March 10, 2000 (½ day); April 10, 2000 (½ day); April 13, 2000 (½ day); May 30, 2000 (½ day); May 31, 2000 (½ day); June 2, 2000 (½ day); July 18, 2000 (½ day); July 21, 2000 (½ day); November 30, 2000 (1 day); December 1, 2000 (1 day); December 4, 2000 (1 day); December 5, 2000 (1 day); December 6, 2000 (1 day); December 7, 2000 (1 day); December 8, 2000 (1 day); December 11, 2000 (1 day); December 12, 2000 (1 day); December 13, 2000 (1 day); December 14, 2000 (1 day); December 15, 2000 (1 day); December 18, 2000 (1 day); December 19, 2000 (1 day); January 10, 2001 (½ day); January 11, 2001 (½ day); February 15, 2001 (1 day); February 22, 2001 (½ day); and February 27, 2001 (½ day). As a result of the Respondent's conduct, School Board administrators recommended dismissal of the Respondent. Thereafter, the Petitioner suspended the Respondent without pay and initiated these dismissal proceedings.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating the Respondent's employment and denying all other relief sought by the Respondent. DONE AND ENTERED this 28th day of March, 2002, 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 March, 2002.
The Issue The issue to be determined in this proceeding is whether Respondent is entitled to back pay following reinstatement to employment after suspension without pay.
Findings Of Fact At the final 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.” Additional Findings of Fact While DOAH Case No. 17-4220 addressed the issue of whether the School Board had authority to suspend Mr. Warren without pay until final resolution of the criminal charge alleging a violation of section 812.014(2)(b)1., Florida Statutes, the issue of reinstatement and back pay were not at issue in that case. There was no evidence offered at hearing that the School Board offered Mr. Warren the opportunity to work in a location that does not have direct contact with students until the charges were resolved. Nearly five months after the Final Order was entered in DOAH Case No. 17-4220, the criminal charges, which served as the basis for Mr. Warren’s suspension without pay, were dismissed. As a result, the School Board reinstated Mr. Warren to his same position as a custodial worker, effective November 17, 2017. The School Board denied Mr. Warren back pay for the period he was suspended without pay. The School Board relied on its Rules and Procedure rule 2.04 (2017), when it approved the recommendation to suspend Mr. Warren without pay for the pending criminal charge. Rule 2.04 provides that “a record clear of disqualifying offenses as defined in section A . . . is required for employment or continued employment.” However, rule 2.04 fails to address the method of reinstatement or the condition upon which an employee would receive back pay if criminal allegations related to a potentially disqualifying offense were resolved favorably for the employee. The School Board has refused to award back pay to Mr. Warren on the basis that his criminal charges resulted from actions outside the scope of his employment. There is no written policy in rule 2.04 or otherwise that an existing employee who is suspended without pay for conduct that occurred outside the scope of his or her work environment is not entitled to back pay upon reinstatement. It is simply general practice. The assistant superintendent of human resources for the School District (Dr. Scott) and the general counsel (Ms. Waters) testified regarding the policy of not awarding back pay to reinstated employees after suspension without pay. Dr. Scott, who has served as the assistant superintendent of human resources for the School District since 2005, testified that “[g]enerally, if an employee is suspended without pay based on criminal charges or investigation of misconduct but in the scope of the employee’s position . . . and the employee is subsequently exonerated and reinstated, back pay will be awarded.” By contrast, “if an employee is suspended without pay pending criminal charges and/or investigation, potentially, unlawful conduct unrelated to the employee’s performance of their duties in his or employment, in the event the employee is reinstated, back pay is generally not award[ed].” Dr. Scott also testified that the District’s practice “can be a substitute” for a properly adopted rule. He acknowledged that the policy has not been approved by the School Board. Moreover, he acknowledged that the policy is not based on any adopted rule. Ms. Waters also testified about the policy of not awarding back pay. She testified that she “was not able to answer the question in the abstract” regarding whether the policy was generally applicable. She stated that it would be “a fact kind of question.” In this case, Mr. Warren was deprived of wages that he would have earned but for the suspension without pay for criminal charges that were later dismissed. There was much discussion at hearing regarding whether the School Board’s action of suspending Mr. Warren without pay should be considered discipline. Ms. Spika testified that the action of suspending Mr. Warren without pay is considered disciplinary action. Discipline is defined in the Collective Bargaining Agreement (“CBA”) as including suspension without pay. Discipline is also defined as corrective action to improve behavior. Here, the School Board did not consider Mr. Warren’s suspension without pay as disciplinary action as it was not intended to correct his work performance or work place conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that to the extent there is authority to do so, Mr. Warren should be reinstated and awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 16th day of May, 2019, 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 16th day of May, 2019.
Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK 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 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
The Issue The issues are whether Petitioner has just cause, within the meaning of Subsection 1012.33(1)(a), Florida Statutes (2007),1 to terminate Respondent’s professional service contract as an instructional employee, and, if so, whether termination of the contract is reasonable under the facts and circumstances of this case.
Findings Of Fact Petitioner employed Respondent as a classroom teacher from some time in 1998 until September 8, 2009, pursuant to a professional service contract. Petitioner relieved Respondent from the duties of her employment without pay on September 8, 2009. On September 21, 2009, Petitioner filed an Administrative Complaint against Respondent. Most of the material facts in the Administrative Complaint are undisputed. On December 12, 1999, Respondent was arrested for cocaine possession, a third-degree felony, and narcotic equipment possession, a first-degree misdemeanor. Respondent successfully completed a pretrial diversion program, and the charges were nolle prossed and expunged. Respondent did not report the criminal matter to Petitioner. The failure to report the criminal matter violated the self-reporting requirements in Management Directive A-10, Guidelines on Self-Reporting of Arrest and Convictions by Employees (the self-reporting requirements). On July 10, 2000, Respondent was arrested for driving under the influence (DUI), which was a first conviction. Respondent pled nolo contendere to a reduced charge of reckless driving and entered and successfully completed a pretrial diversion program. Respondent did not report the DUI matter to Petitioner. The failure to report the DUI matter violated applicable self- reporting requirements. On June 18, 2002, Respondent was arrested on a misdemeanor battery charge. The alleged victim dropped the charge, but Respondent did not report the incident to Petitioner in violation of the applicable self-reporting requirements. On July 6, 2006, Respondent violated Petitioner's Drug Free Workplace Policy by reporting to work at Rolling Hills Elementary School under the influence of alcohol. On July 9, 2006, Respondent entered into an agreement with Petitioner identified in the record as a Last Chance Agreement. The Last Chance Agreement was in effect for the 2006- 2007 and 2007-2008 school years. The Last Chance Agreement provides, in relevant part, that if justifiable grounds of discipline, rising to the level of a written reprimand or dismissal, occur during the school year, Respondent shall forfeit her right to be employed by Petitioner, and the Last Chance Agreement shall constitute a voluntary resignation from employment. The 2007-2008 school year ended on June 6, 2008. On May 30, 2008, Respondent failed to disclose on the renewal application for her Florida Educator's Certificate the expunged criminal record, pretrial diversion program, and plea of nolo contendere previously discussed. Respondent checked "no" to the following question: Have you ever had any record sealed or expunged in which you were convicted, found guilty, had adjudication withheld, entered a pretrial diversion program or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is not a minor traffic violation)? On March 20, 2009, the Education Practices Commission imposed several penalties against Respondent's teaching certificate for the violations that occurred during the 2007- 2008 school year. The Commission issued a written reprimand, imposed administrative fines in undisclosed amounts, and placed Respondent on two years’ probation. The disputed issue is whether Respondent's failure to disclose her criminal history on the renewal application for her Florida Educator's Certificate was intentional. Respondent claims the failure was not intentional, but was induced by post- traumatic stress syndrome (PTSS) caused by two statutory rapes that occurred when Respondent was 13 and 15 years old. When Respondent was 13 years old, a man who was approximately 33 years old "took her virginity." Respondent had an abortion, experienced a great deal of shame and guilt, and began self-medicating with alcohol and drugs. When Respondent was 15 years old, one of Respondent's high school teachers molested her. Respondent again experienced guilt and shame, did not disclose the incident, and continued using alcohol and drugs. Respondent presented expert testimony concerning the effects of PTSS. The expert testimony concludes that PTSS could have caused Respondent to drink excessively and fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. However, the expert testimony fell short of concluding that PTSS in fact induced Respondent to fail to disclose the criminal history on her application. Respondent's own testimony is that she had five or six glasses of wine the night she completed the application. Respondent completed the application without giving it much thought. On balance, a preponderance of the evidence does not support a finding that PTSS caused Respondent to fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. Several mitigating facts support a penalty less than termination of the professional service contract. The non- disclosure of facts was a harmless error to Petitioner. Petitioner had actual prior knowledge of all of the facts that Petitioner complains Respondent omitted from the application. The state licensing authority has knowledge of the non-disclosed facts. Respondent has already been disciplined for non-disclosure to the state licensing authority. When the Last Chance Agreement was entered into in 2006, Respondent was incorrectly diagnosed and treated for bipolar disorder. The treatment for bipolar disorder was ineffective during the term of the Last Chance Agreement. Respondent has been alcohol-free since September 2008, when she placed herself in a residential alcohol treatment program in Clearwater, Florida. Beginning in the early part of 2010, Respondent has been correctly diagnosed and treated for PTSS by Joseph L. Trim, Ed.D, a licensed mental health counselor and addiction specialist. That diagnosis and treatment appears to be effective for Respondent. Based on the testimony of the school principal who testified for Respondent, Respondent is an experienced and competent teacher who has not lost her effectiveness in the classroom. For each school year from 1998-1999 through 2004- 2005, Petitioner evaluated Respondent as effective in the classroom. Respondent has already received a reasonable penalty for violating the Last Chance Agreement, when Respondent was improperly diagnosed and treated for bipolar disorder. Petitioner has suspended Respondent from her employment without pay from September 8, 2009, to the present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order reinstating Respondent's employment with her current principal, requiring Respondent to continue her current therapy with Dr. Trim, requiring Respondent to submit to random drug screening, and extending the term of the Last Chance Agreement for another two years. DONE AND ENTERED this 23rd day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of July, 2010.
The Issue Did the Hendry County School Board (Board) have just cause to terminate Respondent from her employment as a paraprofessional teacher's aide?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent was employed by the HCSD as a paraprofessional teacher's aide at LMS. The employment relationship between the Board and Respondent is subject to the terms and conditions of the Collective Bargaining Agreement Article 8, Section 8.013, Collective Bargaining Agreement, provides that "when an employee has completed three (3) years of the past five (5) with satisfactory service with the Hendry County School Board . . . and has been appointed for a subsequent year, he [sic] will be eligible for continued employment status, which status will continue year to year unless the Board terminates the employee for just cause (Emphasis furnished). Respondent was first employed with the HCSD on August 18, 1986, and worked continuously through May 25, 1999, when she was terminated. Since Respondent achieved "continued employment status," she can only be terminated for "just cause." The Board terminated Respondent for "failure to perform assigned duties in a satisfactory manner" and "other sufficient cause" under School Board Policies and Procedures 218. There were no written evaluations of Respondent's performance accomplished during the first 9 years of Respondent's employment with the HCSD because the Board did not adopt its current policy until approximately 1996. However, there is no evidence that Respondent's work performance was unsatisfactory during the first 9 years of her employment with the HCSD. Respondent worked at LMS for each of those nine years of her employment with the HCSD and was routinely re-appointed for each ensuing year. The first 2 years of her employment, Respondent was assigned to work with students that were classified as "trainable mentally handicapped." Respondent had to assist these students in learning rudimentary skills such as brushing their teeth and changing their underwear. From the fall of 1988 until the spring of 1992, the equivalent of 4 school years, Respondent was assigned to the "Time Out Room." The assignment to the "Time-Out Room" was not punitive in nature, or the result of unsatisfactory work performance by Respondent. Disruptive students that caused a problem in the classroom were sent to the "Time-Out Room." The students went in the "Time-Out Room" for one period after which they usually would return to their regular class. Although Respondent was employed as a "Teacher's Aide" for exceptional education students with special needs she did not assist a teacher, but ran the "Time-Out Room" alone. After 4 years working in the "Time-Out Room," Respondent was assigned to Internal Suspension. The "Time-Out Room" was eliminated, and replaced with Internal Suspension. Internal Suspension was used as a form of discipline for students who violated school policy. Students were sent to Internal Suspension anywhere from 2 to 10 days. Internal Suspension was conducted in a double-wide trailer behind LMS. Respondent again was by herself in Internal Suspension and was not assisting a teacher. The first documentation of any performance deficiency by Respondent consists of a Procedure for Improvement form and a Special Non-Instructional Personnel Evaluation form, both dated January 22, 1996. The forms were prepared by James C. Allen, Principal of the LMS. The Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent achieved a "satisfactory" designation for 6 areas and a "Needs Improvement" in "Quality of Work" and "Work Attitude." The deficiencies specified in the Procedures for Improvement form are: "Harshness in speaking with staff and students, assisting students with academic work, unacceptable activities in classroom, needlepoint, police scanner." The Procedures for Improvement form provided that Respondent had the "95/96 school year" to improve, and that Mr. Allen would "Recommend dismissal" if the deficiencies were not improved. Respondent successfully improved her performance. On March 21, 1996, Mr. Allen wrote a letter to Respondent's union representative, with a copy to Respondent, stating that "I too am optimistic that improvement has occurred." On April 1, 1996, Mr. Allen wrote directly to Respondent expressing concern about "complaints/concerns" received about her conduct on a Beta Club trip to Washington, D.C., but stating, in pertinent part: These concerns cannot be overlooked, however, since we initiated procedures for improvement January 22, 1996, which dealt specifically with harshness in speaking with students/staff. Improvement has been noted. It must also be pointed out that Ms Dankanich (Beta Club sponsor) and some staff members felt that you did a good job in controlling your students and watching out for their safety and welfare. (Emphasis furnished). The March and April 1996 letters from Mr. Allen were included in Respondent's personnel file. Also included in the personnel file were letters from the Beta Club sponsor for the Washington, D.C. trip and a chaperone. These letters stated that Respondent spoke to students and adults and conducted herself in an appropriate manner throughout the trip. Respondent's annual "Overall Evaluation" for the 1995-1996 school year was "Satisfactory." Mr. Allen checked the box entitled "Reappoint based on employee's willingness to improve job dimensions not satisfactory." Respondent attained a "Satisfactory" score on 6 out of eight areas listed for job dimension with "Quality of Work" and Work Attitude" checked-off for "Needs Improvement." Respondent was reappointed and returned to LMS for the 1996-1997 school year. Respondent was assigned to assist with the "trainable mentally handicapped" students after having been on her own in the "Time-Out Room" and Internal Suspension for 8 years and working with Exceptional Student Education (ESE) students. This assignment required an adjustment for Respondent. On February 11, 1997, Allen presented Respondent with another Procedures for Improvement form and Special Non- Instructional Personnel Evaluation form. As in the preceding year, the Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent "Needs Improvement" in "Quality of Work" and "Work Attitude." The Procedures for Improvement form identified deficiencies as "failure to perform assigned duties in a satisfactory manner, harshness in speaking with students/staff; unacceptable activities in classroom," and afforded Respondent the 96\97 school year to improve or be recommended for dismissal. Respondent wrote on both forms that she did not agree with them. In April 1997, 12 professional colleagues of Respondent wrote letters of support. These letters were included in Respondent's personnel file. The letters vouch for Respondent's professionalism and many stated that Respondent never was observed to engage in improper conduct or exhibit inappropriate speech or tone of voice. Throughout the second semester of the 1996-1997 school year, Respondent worked 2 class periods as a teacher's aide for Erin Berg-Hayes. Ms. Berg-Hayes was a sixth grade ESE teacher. Ms. Berg-Hayes testified that Respondent's job performance during the 1996-1997 school year was satisfactory. Respondent did not receive annual evaluation for the 1996-1997 school year. Since Respondent was not told otherwise, Respondent assumed she had improved her performance to Mr. Allen's satisfaction. Respondent received a letter of appointment at the end of the 1996-1997 school year and was reappointed for the 1997-1998 school year. For the 1997-1998 school year, the sixth grade students at LMS were moved to the Sixth Grade Center (SGC). Jodi Bell assistant principal at LMS was assigned to administer the SGC. Mr. Allen remained as principal at the LMS which consisted of seventh and eighth grade students. Respondent worked as Erin Berg-Hayes' full-time aide for the 1997-1998 school year. Respondent and Ms. Berg-Hayes were assigned to the SGC. Ms. Berg-Hayes characterized Respondent's job performance during the 1997-1998 school year as "good." When Ms. Bell prepared Respondent's annual evaluation, Ms. Berg-Hayes advised Ms. Bell that she was "pleased" with Respondent's performance and "on the overall [Respondent's] performance was good and satisfactory." Ms. Bell prepared Respondent's 1997-1998 annual evaluation for the 1997-1998 school year. Ms. Bell checked off "satisfactory" in the 8 areas designated for assessment. There were no check marks in the "Needs Improvement" column. On the 1997-1998 annual evaluation, Ms. Bell checked the box for "Satisfactory" as Respondent's "Overall Evaluation," and also checked the box for "Reappoint for next year." In the section entitled "Comments by Evaluator," Ms. Bell wrote: "I have appreciated your willingness to go above what is expected and help wherever help is needed. Keep up the good work!" Respondent returned to the SGC as Ms. Berg-Hayes' Aide in the 1998-1999 school year. Ms. Berg-Hayes and Respondent worked together for the fall semester after which Respondent requested to be reassigned. Respondent attributed this to a personality clash with Ms. Berg-Hayes that started in July 1998. Ms. Berg-Hayes testified that Respondent's performance declined in the 1998-1999 school year. Cathy Lipford, teacher's aide at SGC, who worked together with Ms. Berg-Hayes and Respondent for one period during the entire fall semester in the 1998-1999 school year did not observe a problem with Respondent's work performance. This teachers' aide was aware of some tension between Respondent and Ms. Berg-Hayes. However, this aide testified that Respondent appeared to take the initiative, and assisted students, and the aide never observed Respondent speaking inappropriately to students. Ms. Berg-Hayes did not prepare any documentation of Respondent's alleged performance deficiencies during the fall semester of the 1998-1999 school year. Ms. Berg-Hayes was not consulted about Respondent's performance by Mr. Allen, the former principal of LMS or Mr. Cooper, the current principal of LMS at the time Respondent's performance was evaluated for the 1998-1999 school year, when it was decided to recommend dismissal of Respondent for failure to perform her assigned duties or other sufficient cause. During the spring semester of the 1998-1999 school year, Respondent was assigned as an aide to Dorothy Lomago, a varying exceptionalities teacher for seventh and eighth grade students. Respondent and Ms. Lomago worked together from January 1999 through May 1999. Ms. Lomago had been employed by the Board for 25 years. Prior to Respondent, Ms. Lomago only had had 2 other teaching assistants. Ms. Lomago considers compassion for children and initiative as the most important characteristics for a teacher's aide in special education. Ms. Lomago rated Respondent's performance in those areas as "ineffective." Ms. Lomago considered Respondent adequate in performing clerical tasks such as copying papers and grading papers. Ms. Lomago did not document Respondent's performance deficiencies. Ms. Lomago neither counseled nor corrected Respondent. Likewise, Ms. Lomago never brought to Respondent's attention the things she believed Respondent failed to do or did wrong. Ms. Lomago merely did what she was told to do by Mr. Cooper when he arrived at LMS in March 1999. On March 31, 1999, Respondent went to Mr. Allen's office for her 1998-1999 annual evaluation. R. Scott Cooper, assistant principal, Ms. Jodi Bell, assistant principal, Mr. Allen, and Ms. Davis, assistant principal were present in Mr. Allen's office upon Respondent's arrival. This meeting was terminated after Mr. Allen indicated there was a problem and asked Respondent if she wanted union representation. Respondent replied that she thought it would be wise. Before the meeting on March 31, 1999, Respondent was not aware that her job performance was considered deficient. Respondent had not been told of any deficiencies and had not received any counseling. In March/April 1999, Mr. Allen retired, and was replaced as principal of LMS by Mr. Cooper. Mr. Cooper arrived at LMS some time in the last 2 weeks of March 1999. Respondent and Mr. Cooper had had no professional contact before March 1999. Mr. Cooper met with Respondent on April 16, 1999, for Respondent's 1998-1999 annual evaluation. Mr. Cooper gave Respondent 4 separate Procedures for Improvement forms and an Annual Non-Instructional Personnel Evaluation form. This was Respondent's first notice of her specific performance deficiencies for the 1998-1999 school year. Mr. Cooper never conducted a formal observation of Respondent's job performance. Mr. Cooper based the annual evaluation predominantly on a review of the school board records, and on discussions with Mr. Allen, Ms. Bell, and Ms. Davis. The Procedures for Improvement forms specified the following deficiencies: "Work Attitude - able to successfully work with co-workers and students"; "Initiate Resourcefulness - ability to identify what needs to be done"; ""Dependability"; and "Quality of Work." The forms identified the following means of judging success in overcoming the foregoing deficiencies, respectively. "Supervisors will observe appropriate student/aide interactions in all circumstances"; "decreased necessity for teacher/supervisor to redirect Ms. Bennett's activities"; "Ms. Bennett will demonstrate the ability to effective [sic] facilitate school functions - adhere to work requirements"; and "Higher quality of work - decrease in errors." As a Statement of Assistance Offered, all of the forms provided: "Ms. Bennett may meet with Mr. Cooper weekly to obtain suggestions and assistance" Respondent was given until May 10, 1999, to improve her deficiencies. This was a period of 3 weeks or 15 school days. On Respondent's Annual Non-Instructional Personnel form, Mr. Cooper checked-off 4 out of 8 areas for "Needs Improvement" with "Satisfactory" checked for the remaining 4 areas. Mr. Allen checked "Unsatisfactory" for the "Overall Evaluation" and checked the box "Dismissal." Respondent noted her disagreement with the evaluation. On May 19, 1999, Mr. Cooper formally recommended dismissal of Respondent. Respondent received a Notice of Recommendation of Dismissal on that date. The Board approved Respondent's dismissal on May 25, 1999. During the 3 week period Respondent was given to improve her performance, neither Mr. Cooper nor any other administrator met with Respondent to advise her as to whether she was improving. There is no documentation whatsoever of Respondent's lack of improvement. During the 3 weeks Respondent was to improve her performance, she received repeated assurance from Ms. Lomago that they would be working together the following year. Ms. Lomago never advised Respondent that her performance continued to be unsatisfactory. Likewise, no one from the Board or any school administrator advised Respondent that she was not complying with the Procedures for Improvement or that her work continued to be unsatisfactory. Not hearing otherwise, Respondent considered her work to be satisfactory and did not meet with Mr. Cooper to obtain suggestions and assistance. The evidence does not establish that Respondent failed to perform her assigned duties in a satisfactory manner during the 1998-1999 school year or that the Board had just cause or any other sufficient cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board reinstate the employment of Annette Bennett-Edwards and provide for back pay and benefits retroactive to May 25, 1999. DONE AND ENTERED this 6th of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 6th day of March, 2000. COPIES FURNISHED: Edward A. Upthegrove Superintendent Hendry County School District Post Office Box 1980 LaBelle, Florida 33935-1980 Richard G. Groff, Esquire Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206 Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2989 Fort Myers, Florida 33902-2089
