The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school custodian based on the allegations contained in the Notice of Specific Charges filed June 21, 2001.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public education within the school district of Miami-Dade County, Florida. See Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a custodian at Miami Edison Middle School (Miami Edison) and Horace Mann. Both schools are public schools located in Miami-Dade County, Florida. On May 16, 2001, Petitioner voted to suspend Respondent's employment as a school custodian and to terminate that employment. 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 is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person 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 is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME). AFSCME and Petitioner have entered into a Collective Bargaining Agreement (the Agreement) that includes provisions for the discipline of unit members. Article II of the Agreement provides that Petitioner may discipline or discharge any employee for just cause. Article XI of the Agreement provides specified due process rights for unit members. Petitioner has provided Respondent those due process rights in this proceeding. Article XI of the Agreement provides for progressive discipline of covered employees, but also provides that ". . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. " Article XI, Section 4C of the Agreement provides that employment may be terminated at any time for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. On February 6, 1996, Respondent was issued a memorandum from the principal of Miami Edison involving Respondent's use of profanity in the presence of students. In the memorandum, the principal directed Respondent not to use profanity on school grounds. On May 21, 1998, Respondent, Mark Wilder, Clarence Strong, and a student were in the cafeteria of Horace Mann preparing for a fund raising activity. Respondent spouted profanities directed towards Mr. Wilder and threatened him with a mop handle. Respondent feigned a swing of the mop handle, causing Mr. Wilder to reasonably fear he was about to be struck by the mop handle. Mr. Wilder had done nothing to provoke Respondent. Mr. Strong knew Respondent and was able to defuse the situation. Mr. Wilder reported the incident to Senetta Carter, the principal of Horace Mann when the incident occurred. Ms. Carter reported the incident to Petitioner's director of region operations. Respondent received a copy of the School Board rule prohibiting violence in the workplace. After investigation, the school police substantiated a charge of assault against Respondent. On March 15, 1999, Petitioner's Office of Professional Standards held a Conference for the Record (CFR) with Respondent pertaining to the incident with Mr. Wilder. Respondent was specifically directed to refrain from using improper language and from displaying any action that another person could interpret as being a physical threat. On October 25, 2000, during the evening shift, Respondent physically assaulted William McIntyre and Noel Chambers while all three men were working as custodians at Horace Mann. Respondent shouted profanities towards both men, threatened them, and violently grabbed them by their shirt collars. Respondent punched Mr. McIntyre in the area of his chest and broke a chain Mr. Chambers wore around his neck. Mr. Chambers and Mr. McIntyre reported the incident to Robin Hechler, an assistant principal at Horace Mann. Respondent came to Ms. Hechler's office while she was interviewing Mr. McIntyre about the incident. When Ms. Hechler attempted to close the door to her office so she could talk to Mr. McIntyre in private, Respondent put his hand out as if to move Ms. Hechler out of his way. Ms. Hechler told Respondent not to touch her and instructed him to wait outside her office. Ms. Hechler later told Respondent to come in her office so she could interview him. Respondent was acting irrationally. Ms. Hechler told him if he could not control himself she would call the school police. Respondent replied that was fine and walked out of her office. Ms. Hechler reported the incident to the school police, who ordered Respondent to leave the premises. Following the incident, neither Mr. Chambers nor Mr. McIntyre wanted to work with Respondent because they were afraid of him. In response to the incident involving Mr. McIntyre and Mr. Chambers, the principal of Horace Mann referred Respondent to the Petitioner's Employee Assistance Program on November 2, 2000. Respondent's shift was changed so he would not be working with Mr. Chambers or Mr. McIntyre. On November 7, 2000, Respondent attacked J. C., a student at Horace Mann, in the cafeteria area of Horace Mann to punish J. C. for something Respondent thought J. C. had said or done. Respondent shouted profanities towards J. C. and choked his neck. J. C. was very upset and injured by Respondent's attack. Respondent was arrested on November 7, 2000, on the offense of battery on a student. On February 21, 2001, he was adjudicated guilty of that offense, placed on probation for six months and ordered to attend an anger control class. Respondent was also ordered to have no contact with J. C. School Board Rule 6Gx13-4-1.08, prohibiting violence in the workplace, provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools [sic] employees have a right to work in a safe environment. Violence or the threat of violence will not be tolerated. School Board Rule 6Gx13-5D-1.07, provides that corporal punishment is strictly prohibited. Respondent's attack on J. C. constituted corporal punishment. School Board Rule 6Gx13-4A-1.21, provides as following pertaining to employee conduct: 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 workplace is expressly prohibited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ORDERED this 12th day of December, 2001, 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 12th day of December, 2001. COPIES FURNISHED: Frank Ferguson 7155 Northwest 17th Avenue, No. 9 Miami, Florida 33147 John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issues concern the claim by the Petitioner to relief for alleged age discrimination. See Section 760.10, Florida Statutes. In particular, it is alleged that the Respondent dismissed the Petitioner from employment with the Duval County School Board based solely upon his age, in violation of the aforementioned statute. There is presented the collateral issue, which is the claim by the Respondent that this dismissal based upon age was authorized by Section 231.031, Florida Statutes.
Findings Of Fact This cause is presented through the petition for relief from an alleged unlawful employment practice which the Petitioner filed with the Florida Human Relations Commission. The service date of that petition was May 9, 1984. Duval County School Board, Duval County, Florida, was the named respondent. Through the petition document Petitioner claims that the Respondent committed an unlawful employment practice by forcing the Petitioner to take an involuntary retirement due to his age. There being no successful informal resolution of this dispute, the matter was referred to the Division of Administrative Hearings for a formal Section 120.57(1), Florida Statutes, hearing, which was held on August 20, 1984. The petition is brought under the authority of Chapter 760, Florida Statutes, formerly Chapter 23, Florida Statutes. Petitioner is an individual within the meaning of Section 760.02(5) and .10(1), Florida Statutes. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner, Robert P. Morrow, was continuously employed as a teacher by Respondent, Duval County School Board, from September, 1962, through June, 1983. During his employment he held tenured status or continuing contract status through the close of the 1981-1982 school year. The balance of the time in which he served as a teacher in the system was in the capacity of an employee on an annual contract basis. This latter arrangement pertains to the school year 1982-1983. Petitioner celebrated his seventieth birthday on September 26, 1981, which was shortly after the beginning of the 1981-1982 school year. In early 1982 Petitioner received a memorandum from Dalton D. Epting, Director of Certificated Personnel of the Duval County Schools, indicating that in view of the fact that the Petitioner would reach 70 years of age within the school year, and in keeping with Section 231.031, Florida Statutes, Petitioner should request an appointment with his principal, one Ronel J. Poppell. Epting had prepared the memorandum based upon information he had been given indicating that the Petitioner would reach 70 years of age within the 1981-1982 school year. In keeping with the suggestion of the memorandum from Epting, Petitioner spoke with Principal Poppell and in that conversation indicated a desire to teach for another year or two beyond the 1981-1982 school year. Poppell spoke to Epting and was reminded of the existence of Section 231.031, Florida Statutes, pertaining to teachers who have obtained 70 years of age. Epting did not advise Poppell on the question of whether to retain the Petitioner as a teacher in the Duval County high school where Poppell served as principal and Petitioner acted as a teacher. Out of the conversation between the Petitioner and Poppell, Poppell determined to allow the Petitioner to remain as a teacher at the subject school for one more year, i.e., the school year 1982-1983. As alluded to before, this arrangement was consummated and Petitioner served as a teacher at Nathan Bedford Forrest Senior High School in the school year 1982-1983 based upon an annual contract arrangement, as opposed to continuing contract. While Section 231.031, Florida Statutes, refers to the superintendent making the decision for retention, in fact Poppel caused the retention of Petitioner in the school year 1982-1983. The effects of such retention were to cause another teacher to be "surplused" who had been involved in the overall program at the school. This arrangement lasted for the 1982-1983 school year. Generally speaking Herb A. Sang, Superintendent of Schools in Duval County, Florida, makes the decision on the question of retention of 70year-old teachers based upon the recommendation of the principal and other school board staff members. Normally, according to Sang, a teacher who has reached 70 years of age would be retired as provided by Section 231.031, Florida Statute. If retained, per Sang, that retention is based upon the needs of the school system and not the record of achievement of the individual teacher in question. In application, teachers who are 70 years old will not be retained unless there is a specific need within the school system for services which they can provide, i.e., a specialty which cannot be filled by teachers under 70 years of age or for reasons of continuity of student projects in which the teacher is involved over more than one school year. On March 3, 1983, Principal Poppell completed an annual evaluation of the Petitioner's performance and on that occasion, as had been the case in all evaluations made of the Petitioner as an employee of the Duval County School System, Petitioner was found to be a satisfactory teacher, the highest possible rating that could have been given. Nonetheless, Poppell noted in the evaluation form that the Petitioner would not be recommended for an extension of his annual contract based upon Section 231.031, Florida Statutes. This opinion was expressed in a March 4, 1983, letter from Poppell to the Petitioner in which it was indicated that Poppell would not recommend that Superintendent Sang renew the annual contract of the Petitioner. In that correspondence Poppell indicated that he felt no further obligation to the Petitioner reference extension of his contract beyond 1982-1983, which extension was based upon Poppell's understanding of the discussion with the Petitioner in 1981-1982 in which the Petitioner had indicated that he would wish to teach for another year or two. In furtherance of Poppell's suggestion, Petitioner was not renewed as a teacher in Duval County and that decision was reached based upon the fact that the Petitioner was over 70 years old. No attempt was made to compare the relative merits of the Petitioner's performance with that of persons younger than 70 years of age, in deciding who to employ on annual employment as teachers for the school year 1983-1984.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges (as finally amended)? If so, whether such conduct provides the School Board of Dade County with just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent: School Board Employment Respondent has been employed by the School Board since March 23, 1979. He is currently under suspension pending the outcome of these disciplinary proceedings. For the duration of his employment with the School Board until his suspension, Respondent was a custodial worker assigned to the D.A. Dorsey Educational Center (Center). At the time of his suspension, he was a lead custodian at the Center and, in the opinion of the principal of the Center, Stella Johnson, "do[ing] a fine job" performing his custodial duties. As the lead custodian, Respondent occupied a position of trust inasmuch as he had the keys to the Center and ready access to School Board property inside the building. Furthermore, at times, the performance of his custodial duties brought him in direct contact with students. Respondent: Post-Hire "Criminal History" and School Board Reaction to Reports of His Criminal ConductThe 1985 Warning In the summer of 1985, Respondent was the subject of a School Board police investigation. The results of the investigation were set forth in an investigative report prepared by the School Board police. Upon receiving the investigative report, which indicated that Respondent had been arrested after a purse snatching incident and charged with armed robbery, Henry Horstmann, a director in the School Board's Office of Professional Standards, scheduled a conference-for-the-record with Respondent. At the time of the conference, according to the information Horstmann had received, the armed robbery charge against Respondent had not been resolved. Horstmann warned Respondent at this 1985 conference- for-the-record that criminal activity on Respondent's part, whether occurring on or off the job, could lead to Respondent's dismissal. Approximately a year later, Horstmann was advised that the criminal proceeding against Respondent had ended with Respondent pleading guilty to, and being convicted of, the crime of "attempting to solicit." Because Respondent was "a good employee insofar as his performance at the work site," the principal of the Center02 wanted him to remain in his position. Consequently, he was not terminated. The Thefts at the Pembroke Lakes Mall In the fall of 1994, while working a second job that involved helping in the cleaning of the Pembroke Lakes Mall in Pembroke Pines, Florida, Respondent stole merchandise from stores in the mall (after business hours when the stores were closed). On November 28, 1994, Respondent gave a statement to Pembroke Pines police confessing to these crimes.03 Criminal charges were filed against Respondent. On April 25, 1995, based upon guilty pleas that he had entered, Respondent was adjudicated guilty of: one count of burglary in Broward County 02 Stella Johnson was not the principal of the Center at the time. It was not until August of 1991 that she became principal of the school. 03 In response to a question asked by the interrogating officer, Respondent stated that he committed these crimes because he had "[p]roblems . . . marriage, jobs, Circuit Court Case No. 95000607CF10A; one count of burglary and one count of grand theft in the third degree in Broward County Circuit Court Case No. 95000609CF10A; one count of burglary and one count of grand theft in the third degree in Broward County Circuit Court Case No. 94020151CF10A; and one count of burglary and one count of grand theft in the third degree in Broward County Circuit Court Case No. 95000671CF10A. In each of these cases, he was sentenced to 90 days in the Broward County Jail and one year of probation. The sentences were to run concurrently. In August of 1995, Johnson received a telephone call from Respondent's probation officer, who was seeking verification of Respondent's employment status. It was during this telephone conversation with Respondent's probation officer that Johnson first learned of the thefts that Respondent had committed while working at the Pembroke Lakes Mall. Immediately after the conclusion of the conversation, Johnson telephoned the Office of Professional Standards for guidance and direction.04 In accordance with the advice she was given, Johnson requested the School Board police to conduct an investigation of Respondent's criminal background. Pursuant to Johnson's request, on or about October 25, 1995, School Board police conducted such an investigation and apprised her, in writing, of the preliminary results of the investigation. Johnson passed on the information she had received from the School Board police to the Office of Professional Standards. Thereafter, a conference-for-the-record was scheduled to address Respondent's "future employment status with Dade County Public Schools." The conference-for-the-record was held on February 7, 1996. Dr. James Monroe, the executive director of the Office of Professional Standards, prepared, and bills, drugs, just problems." 04 Johnson advised the Office of Professional Standards during this telephone call that there had been a series of thefts of school property at her school and that, in some instances, it appeared that one or more school employees might be responsible because of the absence of any signs of forced entry. Johnson, however, had insufficient evidence to prove that Respondent was the perpetrator of any of these thefts. subsequently furnished to Respondent, a memorandum (dated February 28, 1996) in which he summarized what had transpired at the conference. The memorandum read as follows: On February 7, 1996, a conference-for-the-record was held with you [Respondent] in the Office of Professional Standards conducted by this administrator. In attendance were Ms. Stella Johnson, Principal, Dorsey Educational Center, Mr. Nelson Perez, District Director, Ms. Chris Harris, Bargaining Agent Representative, American Federation of State, County, [and] Municipal Employees, and this administrator. The conference was held to address Investigative Report No. A00007 concerning your prior arrest, and your future employment status with Dade County Public Schools. Service History As you reported in this conference, you were initially employed by Dade County Public Schools as a Custodian on March 23, 1979 and assigned to D.A. Dorsey Educational Center to the present. Conference Data Reviewed A Review of the record included reference to the following investigative issues: This administrator presented to and reviewed with you a copy of the investigative report in its entirety. In reference to your arrest of November 28, 1994, you reported having been detained by police authorities and that you remain on probation through April 4, 1996.05 You declined to make a comment when asked about your arrest of August 18, 1990 for purchase/possession of cocaine. This administrator noted a similar arrest of May 30, 1986 for possession of marijuana for which you declined to make a comment. In reference to your arrest of June 22, 1985, I noted that you had been arrested (May 30, 1986) while under a three year probation during the period of September 17, 1985 through September 17, 1988. Ms. Harris raised a question as to the need to address prior arrests. Ms. Johnson expressed concern relative to recurring incidents of theft during time periods for which you had been granted permission to enter the facilities during off duty hours. Ms. Johnson reported having previously discussed these incidents with you. Ms. Johnson noted that your second arrest had adversely impacted your overall effectiveness as an employee inasmuch as your assigned duties and responsibilities include making provisions for the maintenance, cleaning and security of School Board equipment and property. 0 5 It appears that, at the time of this 5 Cont. February 7, 1996, conference-for-the-record, the School Board administration knew that Respondent had been adjudicated guilty of, and sentenced for, the crimes (of burglary and grand theft) he had committed at the Pembroke Lakes Mall. This administrator presented to you and reviewed with you memoranda dated March 13, 1984, February 17, 1984, February 9, 1984, December 12, 1983 and November 2, 1983 in their entirety. I specifically reviewed with you the principal's notation of your unacceptable performance relative to your failure to secure gates and doors as required. Ms. Johnson noted that she has discussed similar occurrence with you on a recurring basis. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Associate Superintendent in the Bureau of Professional Standards and Operations, the Assistant Superintendent of the Office of Applied Technology, Adult, Career and Community Education, and the Principal of Dorsey Education[al] Center. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendations will compel formal notification of the recommended action or disciplinary measures to include: a letter of reprimand, suspension or dismissal. You were apprised of your rights to clarify, explain and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. On or about July 2, 1996, the School Board police supplemented its previous report of the results of its investigation of Respondent's criminal record. On September 25, 1996, another conference-for-the-record was held concerning Respondent's "future employment status with Dade County Public Schools." Dr. Thomasina O'Donnell, who had conducted the September 25, 1996, conference-for-the-record on behalf of the Office of Professional Standards, prepared, and sent to Respondent, a summary of the conference. The summary, which was dated September 30, 1996, read as follows: On September 25, 1996, a conference-for-the-record was held with you [Respondent] in the Office of Professional Standards, In attendance were Ms. Stella Johnson, Principal, Miami Skill Center, Mr. Herman Bain, Board Member, AFSCME, and this administrator. The conference was held to address your noncompliance with School Board policy and rules regarding Conduct Unbecoming a School Board Employee and your future employment status with Dade County Public Schools. Service History As you reported in this conference, you were initially employed by Dade County Public Schools as a Custodian in 1979 and assigned to Dorsey Education Center where you have remained. I began by reviewing the reason for this conference which is to discuss a Records Check that revealed a total of four arrests. The last arrest was in 1994 for burglary and grand theft and it resulted in an adjudication of guilty. You said that during that period of time when you had been arrested, you had personal problems. However, currently that is no longer the case and you have your life under control. Ms. Johnson, your principal, said that your work performance is good and you do a fine job. Your attendance is also good. Your union representative requested a copy of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, Employee Conduct, which was provided. I explained that although your arrests were not directly related to your Dade County Public Schools job, there is a level of expectation regarding employee conduct and your arrests place you in violation of that expectation. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendation will compel formal notification of the recommended action of disciplinary measures to include: a letter of reprimand, suspension, dismissal, or the imposition of community service. You were apprised of your rights to clarify, explain and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. Since there were not further questions or comments, the conference was adjourned. At its October 23, 1996, meeting, the School Board suspended Respondent and initiated dismissal proceedings against him "for just cause, including violation of employee conduct rule and conviction of a crime involving moral turpitude." The Collective Bargaining Agreement As a lead custodian employed by the School Board, Respondent is a member of a collective bargaining unit represented by AFSCME and covered by a collective bargaining agreement between the School Board and AFSCME, effective July 1, 1994, through June 30, 1997 (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides 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, 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: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees for just cause; (3) the designation of the organizational structure of the DCPS and lines of administrative authority of DCPS. It is understood and agreed that management possess 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: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; Contract out for goods or services; and, Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Article IX of the AFSCME Contract addresses the subject of "working conditions." Section 11 of Article IX is entitled "Personal Life." It provides as follows: The private and personal life of an employee, except for such incidents and occurrences which could lead to suspension and dismissal as provided by statute, shall not be within the appropriate concern of the Board.06 0 6 This provision of the AFSCME Contract does not protect employees who engage in criminal conduct inasmuch as the commission of a crime Article XI of the AFSCME Contract addresses the subject of "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: 1. verbal warning; 2. written warning (acknowledged); and, 3. A. Conference-for-the-Record. Conference-for-the-Record shall be held as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation. 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 bargaining unit members shall be is not a "private and personal" matter. Rather, it is "an offense against the public." Shaw v. Fletcher, 188 So. 135, 136 (Fla. 1939). consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, 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 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. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification 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. 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. 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. Dismissal, suspension, reduction-in-grade, and non- reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows: In those cases 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. Section 4 of Article XI is entitled "Types of Separation." It provides, in part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four 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 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 10 working days after the first day of notification of the unauthorized absence. 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-- The employee is separated by management's decision not to offer another annual contract. However, such non-reappointment shall not be in lieu of discipline or lay-off. Employees whose performance has been deemed marginal by the supervising administrator, who have been counseled during the school year concerning performance, and have failed to perform acceptably shall not be reappointed. Such employees and the Union shall be put on written notice of possible non-reappointment. Counseling and written notice of non- reappointment shall be provided in a timely manner. This action shall not be arbitrary or capricious, but based upon reason for the best interest of the employer. AFSCME bargaining unit members employed by the school district in excess of five years shall not be subject to non-reappointment. Such employees may only be discharged for just cause. Layoff-- . . . The factors most important in determining what type of separation occurred for a given employee are: which party initiated the action; what time of the work year the action occurred; and the employer's expressed intent. Appendix III of the AFSCME Contract addresses the subject of "classification plan and procedures." Section R of Appendix III is entitled "Custodial Services." It provides, in part, as follows: The following guidelines and procedures will be implemented regarding the organization and provision of custodial services. 1. SUPERVISION The site administrator (e.g., principal) shall have overall responsibility and supervisory authority for all custodial activities and resultant facility condition. The principal's responsibility in this area is typically and properly delegated to the site Head custodian (or, in a few very large facilities, to a Plant Foreman). The Head Custodian (or Plant Foreman) shall be responsible for all custodial activities on all shifts. Custodians who lead other custodial workers in a group or team shall be designated as Lead Custodians. Lead Custodians would be limited to one per shift, per site. Where a single custodian is assigned to a shift and is responsible for closing and securing the facility at the end of that shift, that custodian would also be designated as a Lead Custodian. . . . CAREER LADDER The custodial career ladder shall include criteria/guidelines, as outlined below: Job Classification . . . Site Custodian . . . Lead Custodian . . . Head Custodian . . . Plant Foreman . . . Master Custodian . . . TRAINING . . . Site Custodian (1) Works at a school or facility site . . . Lead/Head Custodian or Plant Foreman (1) This is a leadership position at a school or facility site. . . . The School Board's Rules 6Gx13-4A-1.21, 6Gx13-4C-1.02, and 6Gx13- 4C-1.021 As a School Board employee, Respondent was obligated to act in accordance with School Board rules and regulations,07 including Rules 6Gx13-4A-1.21(I), 6Gx13-4C-1.02, and 6Gx13- 4C1.021,08 which provide as follows: Rule 6Gx13-4A-1.21(I) Permanent Personnel RESPONSIBILITIES AND DUTIES 07 These rules and regulations are referred to in Article XI of the AFSCME Contract. Pursuant to Article XI, violation of these rules and regulations can lead to disciplinary action. 08 An employee who does not meet his responsibility of complying with School Board rules and regulations is guilty of "non- performance of job responsibilities," as that term is used in Article XI, Section 4.C., of the AFSCME Contract. I. EMPLOYEE CONDUCT All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves 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. 6Gx13-4C-1.02 Activities NON-INSTRUCTIONAL PERSONNEL The Board recognizes and appreciates the important supporting role played by non- instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons of the highest quality to fill vacancies as they occur. One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms its wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state. Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community. 6Gx13-4C-1.021 FINGERPRINTING OF ALL EMPLOYEES UPON APPLICATION AND EMPLOYMENT Pursuant to Florida Statute 231.02, it is the intent of the School Board to insure that only individuals of good moral character09 be employed by the school system. The Dade County Public Schools work force is mobile and an employee in the course of a career may be assigned to various work locations where students are present. It is thus necessary to perform the appropriate security checks on all newly hired personnel. All applicants for full-time and part- time jobs shall be fingerprinted at the time of application for employment. When the applicant is hired, the district shall file a complete set of fingerprints on the new hire with the Florida Department of Law Enforcement (FDLE). FDLE will process and submit the fingerprints to the Federal Bureau of Investigation (FBI) for federal processing. The cost of fingerprinting and the fingerprint processing shall be borne by the employee. All new employees, full and part-time, shall be on probationary status pending fingerprint processing and determination, based on results of the fingerprint check, of compliance with standards of good moral character. Employees not found to be of good 0 9 Individuals who engage in "immorality," as defined in Rule 6B-4.009(2), Florida Administrative Code, (i.e., conduct "inconsistent with the standards of public conscience and good morals [which is] sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community") are not "individuals of good moral character," within the meaning of School Board Rule 6Gx13-4C-1.021. moral character will have their probationary employment terminated. For purposes of this rule, good moral character means exemplifying the acts and conduct which could cause a reasonable person to have confidence in an individual's honesty, fairness and respect for the rights of others and for the laws of the state and nation. The Dade County Public Schools shall review fingerprint reports and determine if an employee's criminal record contains crimes involving moral turpitude. For purposes of this rule, moral turpitude means "a crime that is evidenced by an act of baseness, vileness, or depravity in the private and social duties, which, according to the accepted standards of the time, a person owes to other people or to society in general, and the doing of the act itself and not its prohibition by statutes, fixes moral turpitude." Rule 6B-4.009(6), FAC. Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude will be terminated from employment. Crimes which may demonstrate moral turpitude include but are not limited to: Murder (Section 782.04 F.S.) Manslaughter (Section 782.07 F.S.) Vehicular homicide (Section 782.071 F.S.) Killing an unborn child by injury to the mother (Section 782.09 F.S.) Assault upon a minor (Section 784.011 F.S.) Aggravated assault (Section 784.021 F.S.) Aggravated assault relating to battery upon a minor (Section 784.03 F.S.) Aggravated battery (Section 784.045 F.S.) Kidnapping (Section 787.01 F.S.) False imprisonment (Section 787.02 F.S.) Removing children from the state or concealing children contrary to court order (Section 787.04 F.S.) Sexual battery (Section 794.011 F.S.) Carnal intercourse with an unmarried person under 18 years of age (Section 794.05 F.S.) Prostitution (Chapter 796 F.S.) Arson (Section 806.01 F.S.) Robbery (Section 812.13 F.S.) Incest (Section 826.04 F.S.) Aggravated child abuse (Section 827.03 F.S.) Child abuse (Section 827.04 F.S.) Negligent treatment of children (Section 827.05 F.S.) Sexual performance by a child (Section 827.071 F.S.) Exploitation of an elderly person or disabled adult (Section 825.102 F.S.) Drug abuse if the offense was a felony or if any other person involved in the offense was a minor (Chapter 893 F.S.) If the administration finds it appropriate upon consideration of the particular circumstances of an applicant's/employee's case (timing, persons involved, specific mitigating facts), a determination may be made finding that such crime as applied to the applicant/employee does not involve moral turpitude. A probationary employee terminated because of lack of good moral character including but not necessarily limited to conviction of a crime involving moral turpitude shall have the right to appeal such decision to Labor Relations and Personnel Management. The request for appeal must be filed within 15 days following notification of termination. Personnel who have been fingerprinted and processed in accordance with this rule and who have had a break in service of more than 90 days shall be required to be re- fingerprinted in order to be re-employed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order finding that, for the reasons set forth above, "disciplinary action" against Respondent is warranted and imposing upon Respondent the "disciplinary action" described in paragraph 61 of this Recommended Order. 016 Failure to do so may result in further "disciplinary action" being taken against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of March, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997.
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the violations alleged in the Petition for Suspension Without Pay and Dismissal from Employment, as clarified at hearing, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at 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) in Palm Beach County, Florida (including, among others, H. L. Watkins Middle School (HLWMS)), and for otherwise providing public instruction to school-aged children in the county. The School Board has entered into a collective bargaining agreement with the collective bargaining representative of its instructional staff. Pursuant to Article II, Section M., of that agreement, the School Board "has the burden to prove each and every charge by clear and convincing evidence" in disciplinary proceedings such as the instant one.2 At all times material to the instant case, Respondent was employed as an annual contract teacher by the School Board. The last day for which she was paid by the School Board was March 3, 2010. From March 4, 2010, until June 4, 2010, Respondent was under suspension (without pay) pending the outcome of these disciplinary proceedings. By letter dated March 22, 2010, Respondent was advised by the School Board's Chief of Human Resources that she would not be "reappointed" and that, as a result, her employment with the School Board would terminate "on the last day of [her] current contractual period" (which was June 4, 2010). During the 2007-2008 and 2008-2009 school years, Respondent taught Spanish at HLWMS (to seventh and eight graders during the 2007-2008 school year; and to sixth, seventh, and eighth graders during the 2008-2009 school year). Respondent was responsible, not only for the delivery of instruction to her students, but also for the management of her classroom. Furthermore, she was expected to be a "role model" for her students and to conduct herself accordingly, particularly when on campus. At all times that Respondent was teaching at HLWMS, Ann Wark was the principal of the school, and Respondent's department head was Ann Panse. In each of the two annual evaluations Ms. Wark gave her, Respondent received an "overall" rating of "satisfactory" and was rated "acceptable" in each of the 15 performance categories listed on the evaluation form. In the "comments" section of the 2007-2008 school year evaluation, Ms. Wark wrote: Beth has been such a positive addition to the Watkins Team. She does a great job working with her students. She is also a wonderful team player, assisting others whenever needed. The "comments" section of the 2008-2009 school year evaluation (which Ms. Wark signed on May 13, 2009) contained the following remarks made by Ms. Wark: Ms. Stuglik is a very creative teacher. She always has detailed lesson plans that are effectively presented in the classroom. Respondent was a 22-year-old beginning teacher when she arrived at HLWMS in August 2007. She and her husband had just moved from Indiana, away from the family3 and friends who comprised her "support system." Aside from her husband (who was not supportive of her decision to teach at HLWMS),4 Respondent was not close with anyone at the school or in the area. Respondent's classroom her first year at HLWMS was the "chorus room," which was located in a building (Auxiliary Building) that was separate from the main school building. There were only two other teachers with classrooms in the Auxiliary Building (which also housed the school's cafeteria): an ESE teacher and a band teacher. The ESE teacher was infrequently in her room, having one class there every other day. The remainder of her teaching time was spent servicing the school's exceptional education students in their general education settings. The band teacher was Heath Miller. Mr. Miller taught his students in the "band room." Mr. Miller's classroom (the "band room") and Respondent's classroom (the "chorus room") were connected by an unoccupied office. Mr. Miller was a popular and "well respected" member of school's instructional staff, as evidenced by the multiple "teacher of the year" awards he had received. Before classes started that school year (the 2007-2008 school year), during orientation, Respondent was told by other teachers that Mr. Miller "was the go-to guy; that if [Respondent] ever needed help with students, [Mr. Miller] was the guy to see; that he was just absolutely wonderful." Acting on this advice, Respondent sought out Mr. Miller's assistance on various occasions, and he became her trusted, informal teaching mentor (albeit one without any supervisory authority over her). Over a period of approximately a month, Respondent's relationship with Mr. Miller, which began as a purely professional one, evolved into a sexual relationship, against Respondent's will. From the end of September 2007, until sometime in November that year before the Thanksgiving break, Mr. Miller and an unwilling Respondent engaged in sexual intercourse a handful of times in a large storage closet in the "chorus room." These incidents (numbering approximately three or four altogether) occurred during the morning (sometime between 8:45 a.m. and 9:30 a.m.) before classes started.5 On each occasion, over Respondent's verbal protestations, Mr. Miller, who was "very muscular" and physically stronger than Respondent, forcefully maneuvered Respondent to the desired location in the closet, undid her clothes, and then directed her what to do. At no time did Mr. Miller strike Respondent, nor did he make any express verbal threats of harm to Respondent if she resisted his advances. Respondent, however, did not know what Mr. Miller would do to her if she did resist. She therefore complied with Mr. Miller's demands. Respondent did not tell anyone about these nonconsensual sexual encounters with Mr. Miller until approximately a year and half later, on April 27, 2009, when she was interviewed a second time during the "School Police investigation" described in the Petition. Respondent's post-encounter silence was the product of her wanting to forget about what had happened, coupled with her conviction that, if she did report what had happened, no one would believe her because Mr. Miller was so "well respected." Notwithstanding what Mr. Miller had done to her, Respondent continued to be "cordial" towards him, acting as if, at least to the casual, lay observer, nothing untoward had happened. In addition to conversing in person with Mr. Miller during the course of the school day, Respondent communicated with him by text and telephone, and several times even socialized with him outside of school (but always in a group situation where there were others present). Respondent's conduct following Mr. Miller's transgressions against her (as described above) was not atypical for a sexual assault victim.6 During the 2007-2008 school year and, to a lesser extent, during the 2008-2009 school year (when Respondent occupied the classroom in the Auxiliary Building that the ESE teacher had been in the year before7), an unaccompanied Mr. Miller, on occasion, came into Respondent's classroom while she was teaching a class (towards the end of the period,8 when the students were working, independently, on class assignments) and, with Respondent's permission, removed students from her class, a practice not prohibited by any School Board rule or policy. The students he removed were all female band students. Respondent would let the students go with Mr. Miller only if they were done with their work.9 The students would be gone from Respondent's class for approximately ten to twenty minutes. Allegations were subsequently made that Mr. Miller had (at various unspecified times) engaged in sexual misconduct with three of the students he had removed from Respondent's class (plus another student whom Respondent did not teach), and criminal charges were filed against Mr. Miller based on these allegations.10 Mr. Miller is currently in jail and is being held without bond on these criminal charges. At the time of the removals, however, Respondent had no knowledge, nor even any idea, that Mr. Miller was engaging in any inappropriate conduct with students. She believed (based on what Mr. Miller had told her when he came into her room to get the students) that he was taking them from her class so they could participate in band-related activities.11 Mr. Miller was arrested on April 20, 2009.12 The following day, School Police Detective Vincent Mintus interviewed Respondent as part of his ongoing investigation of the allegations that had been made against Mr. Miller. During this April 21, 2009, interview, Respondent was not forthright with Detective Mintus. She was asked about her relationship with Mr. Miller and, in response, failed to disclose that there was a sexual component to the relationship. Following the interview, Detective Mintus discovered information causing him to question whether Respondent had been entirely truthful with him. He therefore made arrangements to interview Respondent again. This second interview was conducted on April 27, 2009. When told by Detective Mintus that he had reviewed text messages and telephone records and, based upon this review, had doubts concerning how honest she had been during her April 21, 2009, interview,13 Respondent acknowledged that, contrary to what she had intimated in her previous interview, she had had a sexual relationship with Mr. Miller. She added, however, that this relationship had been a nonconsensual one in which she had not been a willing participant. The interview was cut short when Respondent asked for a union representative to be present. Following her April 27, 2009, interview, Respondent, with Detective Mintus' assistance, made contact with the Palm Beach County's Victim Advocate's Office, through which she subsequently received therapy and counseling enabling her to better deal with the emotional and psychological effects of having been sexually victimized by Mr. Miller. Upon being advised by Detective Mintus of what Respondent had related to him during the April 27, 2009, interview, Ms. Wark went to see Respondent. She tried to console Respondent and offered Respondent her support. Aided by newspaper articles on the subject, word quickly spread through the school and the community about Detective Mintus' investigation of Mr. Miller's on-campus sexual activity with HLWMS students and teachers. As a result, "things at the school came to a standstill." Students openly discussed Respondent's having been sexually involved with Mr. Miller and expressed their anger with Respondent for her having engaged in such activity.14 Ms. Wark sensed that Respondent had lost the respect of the student population as a whole, and their parents. Because it was towards the end of the school year, Ms. Wark took no action to have Respondent removed from her classroom assignment while Detective Mintus' investigation was still ongoing; however, she did instruct Respondent not to attend any school functions (including graduation) to which parents were invited. It was not until the beginning of the following school year (the 2009-2010 school year) that Respondent was taken out of the classroom and assigned administrative duties.15 Respondent had left the April 27, 2009, interview with the understanding that Detective Mintus would contact her to make arrangements for a follow-up interview. Detective Mintus, though, expected Respondent to contact him. After not hearing from Respondent for a couple of months, he sent Respondent a letter, dated July 1, 2009, asking her to get in touch with him so that he could set up another interview. Respondent did not receive Detective Mintus' letter until July 20, 2009.16 She immediately contacted her attorney and read the letter to her. Respondent's attorney then contacted Detective Mintus. Respondent was interviewed a third time by Detective Mintus on July 29, 2009. She was accompanied to the interview by her attorney. Immediately before the interview began, Respondent's attorney told Detective Mintus, on Respondent's behalf, that Respondent did not want to press charges against Mr. Miller because she desired "to get on with her life and not have any notoriety." During the interview, Respondent gave details regarding her relationship with Mr. Miller. She acknowledged that she had engaged in sexual activity with Mr. Miller on the HLWMS campus, but continued to maintain (truthfully) that she had not willfully participated in this activity. After completing his investigation, Mr. Mintus issued an Investigative Report, in which he found, among other things, that Respondent and Mr. Miller had had "mutually agreed upon sexual intercourse together on multiple occasions" on the HLWMS campus. On August 14, 2009, Detective Mintus' Investigative Report was forwarded to the School Board's Department of Employee Relations. The matter ultimately was brought to the attention of the School Superintendent, who, on February 12, 2010, advised Respondent that a determination had been made that there was "sufficient evidence to warrant [her] termination from [her] position as Teacher" and that he therefore would "recommend her suspension without pay and termination at the March 3, 2010 School Board Special Meeting." The School Board followed the School Superintendent's recommendation, and it suspended Respondent without pay effective March 4, 2010, pending the outcome of termination proceedings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board issue a final order finding that the charges against Respondent have not been sustained and awarding Respondent "back salary" for the period she was under suspension without pay. DONE AND ENTERED this 2nd day of August, 2010, 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 2nd day of August, 2010.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Petition.
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) in Palm Beach County, including Boca Raton Community High School (BRCHS). Respondent is employed by the School Board as a custodian, but is currently under suspension pending the outcome of these proceedings. As a custodian employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the 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 in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." Article 17 of the SEIU Contract provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph # 7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee's personnel file and shall not be used to the further detriment of the employee, unless, there is another reasonably related act by the same employee within a twenty four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee's personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable law. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Prior to her suspension pursuant to Article 7, Section 2, of the SEIU Contract in December 2008, Respondent was assigned to BRCHS. Respondent started working as a custodian at BRCHS in or around 2006. At the time, she was a full-time employee, with hours from 2:30 p.m. to 11:00 p.m. Respondent had poor attendance as a full-time employee. In or around December 2007, at Respondent's request, the School Board changed her status to a permanent part-time employee, with a four-hour, instead of an eight-hour, work day, five days a week. She continued to work an evening shift. It was hoped that the change to part-time status would result in improvement in Respondent's attendance. Respondent's attendance, however, did not improve. Consequently, on December 3, 2007, Cheryl Lombard, an assistant principal at BRCHS, sent Respondent the following memorandum concerning "[e]mployment [e]xpectations": In order to improve your job performance the following directives must be adhered to in order for the school operations to run efficiently: You are directed to report to duty at your assigned time 4:00 p.m. Monday through Friday, April 10, 2009. You are directed to work your complete four-hour shift from 4:00-8:00 p.m. Monday through Friday. You are directed to bring a doctor's note for every absence stating the dates you were under the doctor's care and that you have been released to perform all job responsibilities without restrictions. You are directed to notify the lead custodian/night administrator anytime you must leave campus during duty hours. You are directed to complete a TDE for all absences, late arrivals, and early dismissals from work. You are directed to follow your duty schedule. You are directed to clean all assigned areas in accordance with the procedures outlined by the District. You are directed to complete all assignments given in accordance with directions given. You are directed to refrain from using your cell phone except during your fifteen- minute break. In case of emergency, please contact Dr. Lombard. You are to report to the head custodian/designee upon your arrival on duty. You are directed to sign out with the lead custodian every night. You are directed to speak to all staff members and others in a professional manner while on District property or on duty. You are directed to refrain from threatening fellow custodians. Failure to follow any of the above mentioned directives will be considered insubordination and may result in disciplinary action up to and including termination. In December 2007, Respondent was absent without leave and/or pay a total of 9.75 hours. She was also out on medical/sick leave a total of 9.5 hours. On January 25, 2008, Ms. Lombard issued Respondent a verbal reprimand (which was followed-up by a "written notation"). The written notation read as follows: This correspondence is being given to you as a Written Notation of a Verbal Reprimand for Violation of School Board Policy 1.013 as it pertains to insubordination for failure to follow Directives Re: Attendance. Specifically, you have had excessive tardies and absences. Furthermore, you have failed to produce a doctor's note stating that you were under his/her care, as was required per the memo you received on December 3, 2007. You are directed to cease such conduct immediately. Further, you are to desist from engaging in the same or similar conduct in the future. Failure to do so will result in further disciplinary action up to and including a recommendation for termination. In January 2008, Respondent was absent without leave and/or pay a total of 22 hours. On February 6, 2008, Ms. Lombard issued Respondent a written reprimand, which read as follows: This correspondence is being given to you as a Written Reprimand for insubordination Re: Attendance after our January 25, 2008 meeting. Specifically, on January 28 and February 4 you were absent and on January 30 you were 30 minutes late for your four (4) hour shift. Your conduct violated School Board Policy 1.013. Regardless of the circumstances that may have brought them about, such inappropriate actions and/or inactions on your part do not reflect positively on your position. You are directed to cease such conduct immediately. Furthermore, you are to desist from engaging in the same or similar action in the future. Failure to do so will result in further disciplinary action up to and including termination. Respondent was out on medical/sick leave for a total of approximately six weeks in February and March 2008. On April 17, 2008, Ms. Lombard issued Respondent another written reprimand. This written reprimand read as follows: This correspondence is being given to you as a Written Reprimand for insubordination regarding attendance after our April 15, 2008, meeting. Specifically, on April 16, you were absent for two and one half hours of your four hour shift. Your conduct violated School Board Policy 1.013. Regardless of the circumstances that may have brought them about, such inappropriate actions and/or inactions on your part do not reflect positively on your position. You are directed to cease such conduct immediately. Furthermore, you are to desist from engaging in the same or similar action in the future. Failure to do so will result in further disciplinary action up to and including termination. In April 2008, Respondent was absent without leave and/or pay a total of 21 hours. In May 2008, Respondent was absent without leave and/or pay a total of 36 hours. Respondent's brother and father passed away in April and May 2008, respectively. In June 2008, Respondent was absent without leave and/or pay a total of 51.5 hours. In July 2008, Respondent was absent without leave and/or pay a total of 21 hours. She was also out on medical/sick leave a total of 15 hours. 24, Up to and including August 6, 2008, Respondent was absent without leave and/or pay a total of 7.5 hours that month. On August 6, 2008, the principal of BRCHS issued Respondent a written directive, which read as follows: On August 6, 2008, you met with Ms. Lombard, Assistant Principal, and HR Manager Bob Pinkos to discuss the seriousness of your chronic absenteeism and tardiness. During that meeting the Written Directive provided you on December 3, 2007 addressing attendance at work and compliance [with] the duty schedule was discussed. Furthermore, the following disciplinary actions have been issued related to insubordination for failure to adhere to the December 3, 2007 directives. January 28, 2007 [sic] Verbal Reprimand with Written Notation issued for failure to follow the December 3, 2007 directive. February 6, 2008, Written Reprimand issued for insubordination for failure to follow the December 3, 2007 directive. April 17, 2008, a second Written Reprimand issued for insubordination for failure to follow the December 3, 2007 directive. A copy of the December 3, 2007 directive is enclosed for your review. Although you have received several disciplinary actions advising you to comply with the December 3, 2007 [directive] your behavior with respect to attendance at work and compliance [with] your duty schedule continues to fail to meet expectations. Future similar incidents, to include those that may occur beyond the date of this directive and related to failing to follow the December 3, 2007 directive, will be considered insubordination and subject to disciplinary action up to and including termination of employment. Your immediate attention to this matter will be appreciated as it would positively impact the operation at Boca Raton Community High School. The remainder of the month of August 2008, Respondent was absent without leave and/or pay a total of 22.25 hours and out on medical/sick leave a total of 3.5 hours. In September 2008, Respondent was absent without leave and/or pay a total of 33.25 hours. She was also out on medical/sick leave a total of 4 hours. In October 2008, Respondent was absent without leave and/or pay a total of 23.25 hours. She was also out on medical/sick leave a total of 5 hours. At the end of October 2008, following the completion of an "administrative personnel investigation of Respondent's "behavior with respect to attendance at work and compliance [with her] duty schedule," a "pre-disciplinary meeting" was held at which Respondent was given the opportunity to "explain or rebut the outcome of the investigation." At the meeting, Respondent acknowledged that she had "missed lots of time from work," but she claimed that she had "been trying to improve her attendance." In November 2008, Respondent was absent without leave and/or pay a total of 24.25 hours. Respondent was out on medical/sick leave for her entire four hour shift on December 1, 2008. On December 2, 2008, she was absent without leave and/or pay .25 hours. The following day, she was suspended. Respondent's poor attendance has adversely affected others at BRCHS. Sometimes, the work Respondent was responsible for was done, in her absence, by the other custodians at the school, which "created a bit of unrest" because these custodians also had their own work to do. On other occasions, when Respondent was absent, the work she was assigned went undone, which created a "problem for teachers [and their students] when they c[a]me in the next morning" and had to deal with classrooms that were not cleaned.
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. DONE AND ENTERED this 13th day of April, 2009, 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 13th day of April, 2009. COPIES FURNISHED: Sonia E. Hill-Howard, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Karen Gadson 1711 Wedgewood Plaza Drive Riviera Beach, Florida 33404 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether there is just cause to terminate the Respondent's employment on the grounds stated in the School Board's Notice of Specific Charges.
Findings Of Fact At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Respondent has been employed by Petitioner since 1995. At all time material hereto, Respondent was a data input specialist at Miami Carol City Adult Education Center (Carol City), Robert Renick Educational Center (Renick), Petitioner's Office of Exceptional Student Education and Psychological Services (ESE Office), or assigned to a paid alternative placement at her residence. Miami Carol City Adult Education Center Respondent began part-time work at Carol City around 1995. Her work was satisfactory at first. Once she began full- time employment, her work declined. The work hours at Carol City are 2:00 p.m. - 10:00 p.m., Mondays through Thursdays, and 9:00 a.m. - 5:00 p.m., on Fridays. From July 1996 through June 1997, Respondent had a pattern of absences that adversely impacted the education and work environment, particularly the effective operation of Carol City's office. Respondent had been absent for 44 days, six of which were unauthorized leave without pay. On May 21, 1997, Respondent was directed to comply with work requests from her assistant principal and was warned that failure to do so was insubordination. On June 12, 1997, Respondent was directed to arrive at work on time. On June 13, 1997, Respondent, along with staff, was directed to follow sign in/out procedures. On June 24, 1997, Respondent was referred to Petitioner's Employee Assistance Program (EAP). Respondent refused to sign the referral document. On June 25, 1997, Respondent was given the following directives: (1) communicate intent to be absent or tardy directly to the principal or designee; and (2) document absences for illness with a written medical note from Respondent's treating physician, presented to the principal or designee. Respondent was warned that future absences would be reported as unauthorized leave without pay until Respondent provided the required documentation and that non-compliance with these directives would be considered a violation of Respondent's professional responsibilities. On June 26, 1997, Respondent refused to work on a priority work assignment as directed by her assistant principal. Further, Respondent typed a non-work related memo during work hours. Respondent failed to comply with the principal's directives to stop and not xerox it. In addition, Respondent took a half-day off without obtaining permission from her principal. On June 27, 1997, Carol City's registrar complained that Respondent refused to do what the register asked her to do. On June 30, 1997, Respondent removed folders from the assistant principal's desk without permission. On July 2, 1997, Respondent was typing non-work related material during work hours. Respondent was directed not to do this. On July 7, 1997, Respondent again did non-work related activity, taking down the principal's conversation with another worker, during work hours. On July 11, 1997 a Conference-for-the-Record (CFR) was held with Respondent to address Respondent's insubordination, excessive tardiness, and absences, off-task time, and her failure to follow office procedures, directives, and the chain of command, including, but not limited to dates on or about May 21, 1997 through July 7, 1997. At the July 11, 1997, CFR, Respondent was given the following directives: (1) not to leave school without written permission from the principal; (2) when told to do something, Respondent was to do it whether or not she agreed with it. If she felt the directive violated her contract, rather than her personal beliefs, she was to file a grievance with the union; (3) comply with the requests and directions of the assistant principal, whether or not she agreed; (4) take direction from the registrar and complete the work that the registrar asked her to do; (5) use work hours for work tasks, not personal tasks; (6) not go to anyone's desk or touch or read anyone's paper without prior permission; (7) follow office procedures for telephone calls; and (8) comply with the directives given by memorandum of June 25, 1997. (Paragraph 7 above) At the July 11, 1997, CFR, Respondent was warned that if she continued to fail to follow directives and established procedures, further disciplinary action would be warranted. On May 18, 1998, Respondent, along with staff, was reminded to follow sign in/out procedures. On August 20, 1998, Respondent arrived late to work. On September 2, 1998, the meal schedule was distributed to Respondent, along with staff. On September 3, 1998, Respondent arrived late to work. On September 9, 1998, Respondent left work without authorization from the principal. Respondent failed to sign in and out. On September 14, 1998, Respondent was directed not to leave school without prior approval and to bring the original note from the doctor. On September 17, 1998, Respondent left work without permission from an administrator. On September 18, 1998, Respondent did not adhere to the school's meal schedule and failed to sign out when she departed. Respondent was directed to comply with school site schedules and procedures. On September 29 and 30, 1998, Respondent failed to sign in and out at the start and conclusion of her workday. On October 1, 1998, Respondent was tardy. She was directed to follow the previous directives as to signing in and out. On October 5 and 6, 1998, Respondent was late to work. On October 16, 1998, Respondent left work early without prior approval. On October 20, 1998, Respondent engaged in unprofessional, loud conduct and refused to sign her leave card. On October 23, 1998, Respondent was late to work. Respondent ended her workday early and engaged in a personal phone call. Respondent was directed to arrive on time, depart, and return from meals on time, and to remain on task at the worksite during her scheduled work hours. On October 30, 1998, Respondent behaved in an unprofessional manner, shouting and screaming loudly at her principal. On November 2, 1998, Respondent was late to work and failed to sign in and out. On November 19, 1998, Respondent was engaged in an off-task telephone conversation. She was not using established procedures as to maintaining attendance rosters in individual folders. Respondent was defiant in her assistant principal. Further, Respondent screamed at her principal, displaying unprofessional behavior. Respondent was warned that any similar outburst would be addressed by disciplinary action. On November 20, 1998, Respondent again engaged in a personal phone call, for approximately 20 minutes of her work time. On November 23, 1998, Respondent was not using the established procedures for attendance reports. On November 24, 1998, Respondent was late to work. On November 25, 1998, Respondent was late to work and returned late after dinner. On November 30, 1998, Respondent took vacation leave without approval. On December 1, 1998, Respondent did not follow the meal schedule. On December 3, 1998, Respondent was directed to report to a CFR on December 9, 1998. Respondent refused to attend. She was also referred to Petitioner's EAP due to excessive tardiness, prolonged lunch hours, and frequent trips to the restroom. Respondent refused to sign the referral document. She also received her evaluation which was unsatisfactory in efficiency, attendance, and punctuality, and adherence to rules and procedures. Respondent was placed on a prescription for performance improvement. On December 9, 1998, Respondent was directed to report to a CFR on December 11, 1998. Respondent refused to sign for receipt of the notice. Respondent said she could not attend at the scheduled time. On December 11, 1998, Respondent was directed to report to a rescheduled CFR on December 15, 1998. On December 15, 1998, a CFR was held with Respondent to address her unsatisfactory evaluation. The conferees discussed Respondent's deficiencies from August 1998 through December 1998. At the December 15, 1998, CFR, Respondent was given directives to: (1) be on time, be in her work area during scheduled work hours and to depart for and return from meals according to the published schedule; (2) limit conversations to business and conduct each business call within two to three minutes; (3) maintain attendance rosters in accordance with established procedures; (4) cease insubordination towards any administrator and follow all directions given by a principal or assistant principal; and (5) not to leave the worksite without written authorization from her principal or assistant principal. Further, Respondent was advised that performance and attendance are requirements of her job. At the December 15, 1998, CFR, Respondent was placed on a prescription for performance improvement. Robert Renick Education Center On January 26, 1999, Respondent transferred to the Robert Renick Education Center. On November 29, 1999, Respondent was warned in writing that her frequent tardiness was impeding the operations of her work site. She was warned that if her tardiness continued, further disciplinary action would be taken. Respondent did not show improvement after receiving the memorandum. From July 1999 through April 2000, Respondent accumulated approximately 29 days of absences. On April 25, 2000, Respondent received a directive to report to a CFR on April 28, 2000, to address her attendance, tardiness, declining work and future work status, inter alia. After Respondent was given the notice, she returned to the principal's office and exhibited erratic, impulsive behavior with minimal anger control, resulting in an altercation with her principal and assistant principal over an envelope. Respondent had reached over the principal and under her desk to grab the envelope. She was yelling, "I knew you had it. It's mine." Respondent thought the envelope contained some of her personnel records that had been expunged, but it did not. There was a tug-of-war over the envelope and Respondent held on to it, refusing to return it. The police were called and they escorted Respondent out of the building. As a result, a preliminary investigation was requested and Respondent's principal requested an alternative worksite for her. On April 26, 2000, Respondent's principal postponed the April 28th CFR pending the investigation of the incident that occurred the previous day. On April 27, 2000, Respondent was referred to Petitioner's EAP for excessive absences, excessive tardiness, prolonged lunch hours, marked changes in mood and activity level, altercations with staff, and poor judgment. Respondent did not participate. Office of Exceptional Student Education And Psychological Services (ESE Office) On April 27, 2000, Respondent was reassigned to the ESE Office as her alternative work site. Respondent was given directives concerning her hours of work, sign-in procedures, duties, and absences. She was supervised by Ms. Ball. She did not report to her work site until May 18, 2000. On August 3, 2000, Respondent was advised that her 67.5 absences from the work site, 22 of which were unauthorized leave without pay, between July 20, 1999, and July 18, 2000, were adversely impacting the work environment. Respondent was directed to: (1) be in regular attendance and on time; (2) communicate intent to be absent directly to her supervisor or designee; (3) document absences for illness with a medical note from Respondent's treating physician, presented to her supervisor or designee; (4) upon return to the work site, provide an unconditional medical release to return to full duties; and (5) if future absences are imminent, Respondent was directed to request leave and implement School Board procedures for approved leave. Respondent was warned that future absences would be reported as unauthorized leave until the required documentation was presented and that non-compliance with these directives would be considered a violation of her professional responsibilities. Nevertheless, Respondent did not improve her attendance or follow the directives. On August 29, 2000, a CFR was held with Respondent to address Respondent's attendance, performance, and future employment status. Between August 2, 1999, and August 17, 2000, Respondent had been absent 75.5 days, 27.5 of which were unauthorized leave without pay. During the August 29, 2000, CFR, Respondent was directed to: (1) be in regular attendance and on time; (2) communicate intent to be absent to her supervisor or designee; (3) document absences for illness with a medical note from Respondent's treating physician, presented to her supervisor or designee; (4) upon return to work site, provide an unconditional medical release to full duties; and (5) if future absences are imminent, Respondent was to request leave and implement School Board procedures for approved leave. Respondent was warned that future absences would be reported as unauthorized leave until the required documentation was presented and that non-compliance with these directives would be considered a violation of her professional responsibilities. Further, Respondent was reminded that unauthorized absences for three (3) consecutive workdays are evidence of abandonment of position and that unauthorized absences totaling ten (10) or more workdays during the previous twelve-month period are evidence of excessive absenteeism, which could result in future disciplinary action, including termination of employment. Nevertheless, there was no improvement after the CFR. On August 31, 2000, Respondent was again referred to Petitioner's EAP for excessive absences and tardiness, unauthorized absences, marked changes in mood, and assignment failures. Respondent refused to sign the referral document and declined to participate in the EAP. On October 24, 2000, a CFR was held with Respondent to discuss her inefficiency related to her work assignments, her attendance record and punctuality, and her future employment status. Between July 20, 1999, and October 20, 2000, Respondent had been absent from work 102 days, 82 of which were unauthorized leave without pay. Respondent's interim evaluation was unsatisfactory in the categories of efficiency and attendance/punctuality. Respondent was placed on a prescription of performance improvement. Her prescriptive activities were to be completed by November 21, 2000. On October 24, 2000, Respondent was again referred to Petitioner's EAP due to excessive absences and tardiness, absences on Mondays and/or Fridays, changes in personal appearance, marked changes in activity level, and assignment failures. Respondent refused to accept the supervisory referral to the EAP. There was no improvement after that CFR and Respondent failed to complete her prescription by November 21, 2000, as directed. On December 8, 2000, Respondent was directed to complete her prescription activities within 24 hours. She was warned that failure to do so would be considered insubordination. Respondent failed to comply with this directive. On December 19, 2000, Respondent was directed to attend a CFR on January 4, 2001. On January 4, 2001, the CFR was held, as scheduled. Respondent failed to attend the CFR; however, the meeting proceeded in her absence. Since Respondent's last CFR on October 24, 2000, Respondent has been absent an additional 26.5 days out of 44 work days. The purpose of the January 4 conference was to address Respondent's inefficiency related to work assignments, her daily work performance, her difficulty with interpersonal skills with staff members, her lack of dependability in completing assignments, her judgment, her sporadic attendance and punctuality, her non-adherence to office procedures and daily schedules, her 38 personal long-distance phone calls for which she did not reimburse the school district, her failure to complete her prescription, her January 4, 2001, interim evaluation, and to explain the deficiencies resulting in her January 4, 2001, prescription plan. On January 4, 2001, Respondent's interim evaluation was unsatisfactory in the categories of efficiency, interpersonal skills, dependability and judgment, attendance and punctuality, and adherence to rules and procedures. A prescription for performance improvement was issued with a completion deadline of January 31, 2001. On January 8, 2001, a review of the summary of the CFR, Respondent's evaluation, and Respondent's prescription was scheduled but did not take place because Respondent was absent from work. On January 11, 2001, a meeting was held to review the summary of the CFR, Respondent's evaluation, and Respondent's prescription. Respondent refused to sign to acknowledge receipt of copies of the documents she was given. On January 17, 2001, Respondent was reminded that her timeline for completion of her prescriptive activities was January 31, 2001, and a meeting to review the summary of the CFR, Respondent's interim evaluation, and Respondent's prescription was re-scheduled for January 18, 2001. Respondent failed to complete her prescriptive activities by January 31, 2001, as directed. On February 2, 2001, Respondent was notified that she had failed to comply with her prescriptive activities and had failed to remediate her deficiencies. She was directed to comply with her prescriptive activities within 24 hours and was warned that failure to do so would be considered gross insubordination. Respondent failed to comply with this directive. On February 2, 2001, Virginia Bradford, executive director of Petitioner's Office of Professional Standards (OPS), directed Respondent to report to a CFR on February 13, 2001. On February 8, 2001, Respondent called Ms. Bradford and threatened to kill Ms. Bradford, Ms. Ball, and Ms. Ball's supervisor, Mr. Felton. During the time that Respondent was under Ms. Ball's supervision, she was absent 123 days out of 207 workdays, 94.5 of which were unauthorized. Even when present at work, Respondent frequently did not work the full work day. On February 9, 2001, Respondent was assigned to a paid alternative placement at her residence and was advised that the CFR scheduled for February 13, 2001, would take place by mail. On February 13, 2001, a CFR was conducted by mail to address Respondent's performance assessments to date, her non- compliance with site directives regarding attendance and performance, her attendance to date, her violation of the Code of Ethics and the Principles of Professional Conduct of the Education Professional in Florida and professional responsibilities, her violation of the School Board rules concerning responsibilities and duties, a review of her record, and her future employment status. Respondent was advised that since her last CFR, on January 4, 2001, she had been absent an additional twenty-five days, twenty-four of which were unauthorized leave without pay. Further, since July 5, 1999, Respondent had been absent from work for approximately 177.5 days, 101 of which were recorded as unauthorized leave without pay. On March 14, 2001, Petitioner took action to suspend and initiate dismissal proceedings against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, issue a final order sustaining the suspension without pay of Patricia A. Young, and dismissing her as an employee of the School Board of Miami-Dade County, Florida, without back pay, for just cause, including excessive absenteeism, unauthorized absences, neglect of duty, gross insubordination, incompetency, and violation of School Board rules pertaining to employee conduct and violence in the workplace. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2001.
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with operating, controlling, and supervising all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as a teacher in the Miami-Dade County Public Schools District pursuant to a professional services contract. In the 2011-2012 school year, Respondent was employed as a science teacher at Homestead Middle School. In the 2012-2013 school year, until she was suspended pending the outcome of this proceeding, Respondent was employed as a math teacher at the Alternative Outreach Program, 5000 Role Models location.1/ At all times relevant to these proceedings, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Events Giving Rise to these Proceedings The 2011-2012 School Year Respondent began teaching eighth grade science at Homestead Middle School ("HMS") in August 2011. The 2011-2012 school year for students began on August 22, 2011. The workday hours for teachers at HMS for the 2011-2012 school year were from 7:25 a.m. to 2:45 p.m., Monday through Friday. The persuasive evidence establishes that Respondent was informed of this schedule when she was interviewed for her teaching position, and again so informed during the first faculty meeting of the school year. Pursuant to the UTD contract, the teacher work hours per day in the Miami-Dade Public Schools consist of seven hours and 20 minutes, including a one-hour planning period. The UTD Contract provides that teachers may, with the approval of the work-site administrator (i.e., the principal) modify their workday schedule, such as adjusting the beginning time of the teacher's workday, provided that such modification does not interfere with the overall number of hours worked. This provision affords a principal the authority and discretion to modify a teacher's workday schedule. The student school day hours for HMS began at 7:35 a.m., when the first bell rang and students began entering their classrooms, and ended at 2:20 p.m. Students were to be in their classrooms by 7:40 a.m. for a homeroom period, immediately followed by the first instructional period consisting of a literacy block. The student school day schedule is set by the Miami-Dade County School Board and the school principal is not authorized to change it. Pursuant to HMS's established procedure, if a teacher was going to be absent, he or she must call the absence hotline at least 30 minutes prior to the start of the teacher workday. Shortly after the beginning of the 2011-2012 school year, Respondent began being tardy to work. HMS Principal Rachelle Surrancy or one of the HMS assistant principals would note Respondent's arrival time, either by being in the front of the school when she arrived2/ or by having to open the door to her classroom to let her homeroom class students in if she arrived after the late bell had rung. Surrancy verbally reminded Respondent of the school's starting time, then held an informal meeting with her on or about September 7, 2011, to remind her of the same. Respondent's young son suffers from a range of significant health conditions, including asthma, gastrointestinal reflux, apnea, pneumonia, lactose intolerance, allergic rhinitis, and eczema. He requires extensive care for these conditions, and Respondent was required to administer breathing treatments and other care on a daily basis. During flare-ups of her son's conditions, Respondent needed to take medical leave to provide that care. On or about September 20, 2011, Respondent submitted to Surrancy an Intermittent Leave Request Medical Certification form under the Family and Medical Leave Act ("FMLA") (hereafter "FMLA Form")3/ requesting approval for Respondent to periodically take leave due to the intermittent illness of her young son. The FMLA form was completed and signed by Respondent's son's physician. Based on the child's medical history, the physician estimated that Respondent would need to take FMLA leave every two to three months, for a period lasting two to three days. Notwithstanding Surrancy's admonitions, Respondent continued to be tardy to work. During the first 25 days of the school year, Respondent was tardy 16 of those days. Most of the tardies entailed an arrival time of between two and five minutes late, but some entailed arrival times as much as 25 to 35 minutes late. When Respondent arrived after 7:40 a.m. (15 minutes late), her colleagues in the science department were placed in the position of having to cover her class until she arrived. As a result of Respondent's continued tardiness, on September 28, 2011, Surrancy issued a Punctuality to Work Directive ("Directive") to Respondent regarding her punctuality and attendance.4/ The Directive reminded Respondent that punctuality and attendance were essential components of her teaching position, and that as a faculty member, she served as a role model to other employees and student. Respondent was apprised that she was to arrive at work on time and sign in daily by 7:25 a.m. If she was going to be tardy, she was to communicate that to an assistant principal or to Surrancy. Surrancy explained that compliance with these directives was necessary to prevent adverse impact to the students and their academic progress, to ensure continuity of the educational program, and to maintain effective worksite operations. The memo advised Respondent that she could obtain assistance to facilitate her punctuality. Respondent was notified that noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. Respondent told Surrancy that the reason she was tardy was that she had to take her son to his daycare center. The daycare center did not open until 7:00 a.m., making it difficult for her to arrive at HMS by 7:25 a.m. due to the commute in morning traffic. On October 5, 2011, Surrancy evaluated Respondent's instructional performance for the 2011-2012 school year pursuant to the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used in the Miami-Dade County Public School District to evaluate instructional personnel. Surrancy rated Respondent as "effective" for each IPEGS standard other than Performance Standard ("PS") 7, "Professionalism."5/ For that standard, she rated Respondent's performance as "unsatisfactory" on the basis that due to her tardies, Respondent violated the School Board's Code of Ethics and Standards of Ethical Conduct policies.6/ After the September 28 meeting, Respondent continued to be tardy, so on October 10, 2011, Surrancy again met with her. Respondent explained that each day, her son required a breathing treatment regimen that she had to administer and that she had to take her son to daycare. Respondent told Surrancy that she planned to enlist the assistance of a friend to take her son to daycare so that may assist her to arrive on time.7/ Surrancy offered to adjust Respondent's workday schedule to allow her to arrive five minutes later to accommodate her travel time from her son's daycare to HMS, contingent on Respondent arriving at work by 7:30 a.m. However, Respondent continued to be tardy, at times arriving later than 7:30 a.m. Surrancy held a follow-up meeting with Respondent on October 25, 2011, at which she notified Respondent that the adjusted workday schedule no longer was in effect and that she was again required to arrive at 7:25 a.m.8/ In the meantime, Respondent sought to transfer to a school having a workday schedule with which she could more easily comply, given her son's daycare start time and her travel time. She was offered, but declined, a position at Redland Middle School, which entailed a teaching assignment that was out of her field of certification. Respondent declined the position because it did not meet the condition of her loan forgiveness program that the assignment be in a critical subject area——such as science and math——and because she did not believe she would be as proficient a teacher in teaching out of her subject area. Following the October 25 meeting, Respondent continued to be tardy. Several of these tardies necessitated coverage for her homeroom class. On December 14, 2011, Surrancy held a Conference-for- the-Record ("CFR") with Respondent to address her continued tardiness. By that time, Respondent had been tardy 45 days since the beginning of the school year, and several of these tardies necessitated coverage of her homeroom class by her colleagues. Surrancy informed Respondent that her tardies had adversely affected the educational program and services provided to students. Respondent was again directed to be punctual and in regular attendance, to communicate any intent to be tardy before 7:00 a.m. by calling the assistant principals or her, and to provide physician documentation and/or recertification of her FMLA form as needed if she was going to use FMLA leave to cover her tardies. Respondent was provided copies of Petitioner's policies on Standards of Ethical Conduct, Code of Ethics, and Leaves of Absence; Department of Education rules 6B-1.001 and 6B- 1.006; another copy of the FMLA for recertification by her physician; and other documents to inform and assist Respondent in addressing her tardiness problem. Respondent was informed that noncompliance with the directives would constitute insubordination and compel district disciplinary action. Respondent continued to be tardy. Again, several of these tardies necessitated coverage of her homeroom class. On February 13, 2012, Surrancy conducted another CFR with Respondent. As of that date, Respondent had been tardy 69 days since the beginning of the 2011-2012 school year. Surrancy issued Respondent the same directives previously given and again furnished Respondent copies of pertinent School Board policies, applicable Department of Education rules, and other informational documents. Surrancy informed Respondent that failure to comply with these directives would constitute gross insubordination and necessitate further disciplinary action. Respondent explained that her tardiness was due to a variety of factors, including having to perform breathing and other medical treatments on her son and taking him to daycare. She expressed concern at having to call in by 7:00 a.m. if she was going to be tardy because, for unforeseen reasons such as her son's daycare being late in opening, she may not know whether she was going to be tardy until after 7:00 a.m. Surrancy informed Respondent that under any circumstances, calling in did not excuse tardiness. Respondent requested that Surrancy assign her homeroom to another teacher and allow her to report at 7:45 a.m., when her science classes commenced. Surrancy refused. As a result of Respondent's continued tardies, Surrancy determined that her conduct constituted insubordination and noncompliance with applicable School Board policies. Surrancy issued a written Reprimand to Respondent on March 5, 2012. The Reprimand directed Respondent to adhere to school board policies, be punctual, and call Surrancy or an assistant principal before 7:00 a.m. if she were going to be tardy. Respondent nonetheless continued to be tardy, necessitating another CFR, which was held on March 29, 2012. By this time, Respondent had been tardy 86 days and absent 8.5 days in the 2011-2012 school year. During the CFR, Respondent provided two FMLA leave request forms completed by her son's treating physicians certifying the frequency and duration of her son's flare-ups that necessitated leave. One of these, dated March 6, 2012, stated that flare-ups occurred at a frequency of every one to two months for a duration of two to three days, while the other, dated February 20, 2012, stated that the flare-ups occurred approximately once a month and did not specify a duration. Under any circumstances, Respondent was tardy more frequently than the number of days of leave documented as necessary by either of these FMLA forms. Respondent again was given directives, which included those previously provided regarding punctuality and attendance, calling in by 7:00 a.m. if tardiness was anticipated, physician documentation for leave requests, performance of her teaching duties, comporting herself in a manner that reflected credit on herself and Miami-Dade County Public Schools, and adherence to School Board policies and applicable Department of Education rules. Respondent was again provided copies of the policies, rules, and other documents previously given to her. Respondent was offered the option of resigning her position but declined. Surrancy recommended that Respondent be suspended from her teaching position. However, Respondent was not suspended during the 2011-2012 school year.9/ Although Respondent's tardiness during the 2011-2012 school year required coverage of her homeroom class by colleagues on several occasions, she did not miss any classroom instructional time.10/ 2012-2013 School Year For the 2012-2013 school year, Respondent was hired as a math and science teacher in the Educational Alternative Outreach Program's ("EAO") credit recovery program. She was assigned to the EAO's 5000 Role Models location. In this assignment, Respondent taught between 12 and 15 students in grades six through eight. The 5000 Role Models facility was located between 35 and 40 miles from Respondent's home. She had a commute of between one hour ten minutes and two hours one way from her home to 5000 Role Models. The teacher workday hours for this location were 8:20 a.m. to 3:40 p.m. Respondent was informed of this schedule when she was interviewed by EAO Principal Claire Warren, and by letter from Warren regarding her projected teaching assignment for the 2012-2013 school year. Warren credibly testified that at the time she was interviewed, Respondent did not express any concerns regarding this schedule. The student school day at 5000 Role Models started at 9:00 a.m. Shortly after the school year commenced, Respondent began being tardy. During the first week of the students' school year, Respondent was tardy twice, approximately 20 minutes each time. On August 31, 2012, Warren issued Respondent a written memorandum reminding her of the directives that were issued the previous school year and directing her to be punctual and in regular attendance; call before 8:00 a.m. to notify either Warren or the assistant principal if she was going to be absent or tardy; provide physician documentation for absences and tardies due to illness; timely submit updated FMLA forms if anticipated illness or tardies covered under the FMLA are anticipated; adhere to all School Board policies; and perform her job responsibilities. Respondent was placed on notice that noncompliance with these directives would constitute gross insubordination and would necessitate notification of the Office of Professional Standards for the imposition of discipline. Respondent continued to be tardy. As of October 1, 2012, Respondent had been tardy eight times11/ and absent three days.12/ On some of the days she was tardy, Respondent did not call to notify the administration, as she had been directed to do; on other days, she sent text messages but did not call. Warren conducted another conference with Respondent on October 1, 2012. She issued another memorandum documenting Respondent's tardies since the beginning of the 2012-2013 school year, reiterating the directives previously issued on August 31, and notifying Respondent that failure to comply with the directives would constitute gross insubordination. Warren also provided a letter to Respondent regarding FMLA coverage of her tardies and absences. The letter informed Respondent that only absences, i.e., time away from the worksite, and not tardies were covered by the FMLA, and that it was her responsibility to notify the school if she were going to be absent pursuant to an FMLA-certified illness event. Attached to the letter was an FMLA Form to enable Respondent to update her FMLA-covered illness certification as necessary. Respondent's tardies continued. She was tardy on October 2, 5, 8, and 9——on some of these days as much as 45 to 70 minutes late. On the days when she was tardy by 40 or more minutes, she missed classroom instructional time and her students had to be placed in another teacher's classroom. On October 10, 2012, Petitioner took action to suspend Respondent for 30 workdays without pay,13/ for gross insubordination and for violating School Board policies regarding the Code of Ethics (policy 3210), Standards of Ethical Conduct (policy 3210.01), and Leaves of Absence (policy 3430), and rules 6B-1.001, 6B-1.006, and 6B-4.009.14/ Respondent served her suspension and returned to work on November 26, 2012. On that day, she was 11 minutes tardy; the following day, she was 40 minutes tardy. On November 29, 2012, Warren issued another memorandum to Respondent reiterating the directives previously given on August 31 and October 1. Respondent was informed that her failure to comply with the directives would constitute gross insubordination and would necessitate referral to the Office of Professional Standards for further discipline. Respondent continued to be tardy. In December 2012 and January 2013, Respondent was tardy 13 days, two of which required coverage of her class. Respondent did not call in to the school to notify them of her anticipated tardiness but she did notify the school by text message on some of these occasions. On February 1, 2013, Respondent was notified of a CFR scheduled for February 5, 2013. On February 4, 2013, Respondent notified Warren by electronic mail that she would not be at school that day or the following day. On February 6, 2013, Respondent notified Warren by electronic mail that she was taking a leave of absence "for at least the next few weeks." She also informed Warren that her absences the previous two days had been due to her own illness. Respondent did not submit a leave request form to Warren prior to taking sick leave. Respondent did submit a Leave of Absence Medical Documentation Form to the Miami-Dade County Public Schools Office of Retirement/Leave/Unemployment Compensation ("Leave Office") on February 5, 2013, containing her physician's certification that she was ill and recommending a leave of absence from February 4, 2013, to March 1, 2013. Because she was requesting approval of leave for less than 30 days' duration, under the UTD Contract, Respondent should have filed her leave request with Warren rather than with the Leave Office. UTD Contract Article XIV, section 2, paragraph A., governing notification in the event of teacher absence, states in pertinent part: When a teacher, for whom an emergency temporary instructor is employed, will be absent from work, due to illness or injury or due to personal reasons, he/she shall notify the supervising administrator (or designee), as soon as possible, but no later than one hour before the start of his/her scheduled workday, in order that an emergency temporary instructor can be employed or other arrangements made. If said absence/leave is for a specified period of time, no further notice is necessary. In the event of a change in this specified period of absence, the employee will proceed, pursuant to the stipulations herein. Where an absent teacher does not notify his/her supervising administrator, as stipulated herein, and where there are not extenuating circumstances, as determined by the supervising administrator, such teacher will have the option to utilize personal leave or leave without pay. However, such determination by the supervising administrator shall not be made arbitrarily. UTD Contract, art. XIV, § 2.A. (emphasis added). Article XIV, section 10, governs sick leave without pay for illness. Paragraph C. of that section states: "[e]mployees whose illness requires an absence of over 30 days must file an application for extended sick leave indicating the anticipated length of such absence and supported by a statement from competent medical authority." This leave request would be filed with the Leave Office. However, because Respondent did not request sick leave for a period exceeding 30 days, this provision was not applicable to her leave request. Notwithstanding, Respondent's leave request was reviewed by a medical consultant for Miami-Dade County Public Schools and ultimately was denied. Apparently, some time elapsed before the Leave Office forwarded Respondent's leave request and denial decision to Warren. Warren testified: "I didn't get the request until much afterwards, you know, after she had been out several days " Even after Warren received Respondent's leave request form and denial from the Leave Office, more time passed before she notified Respondent. It was not until March 1, 2013, that Warren sent Respondent a letter informing her that her leave request had been denied and that her absences for the entire month of February were unauthorized, thus warranting her dismissal on the basis of job abandonment. At approximately the same time Warren notified Respondent that her leave request was denied, Warren also notified Respondent, by separate email, that she had incorrectly submitted her leave request to the Leave Office, instead of submitting it to her (Warren). On the same day that Warren notified Respondent that her leave request had been denied, Respondent submitted another leave request form and a medical documentation form to Warren, retroactively requesting approval of her sick leave taken between February 4 to March 18, 2013, due to her own illness. Warren denied the request that same day, citing the medical consultant's determination as the basis for the denial. Warren's letter did not cite an independent basis for the denial. Petitioner did not present any competent evidence regarding the specific basis for the medical consultant's determination to deny the request. Respondent returned to work on March 4, 2013. She was tardy that day and the following day. On March 6, 2013, a CFR was held. The CFR originally had been scheduled for February 5, 2013, but when Respondent took leave, it was rescheduled. At the meeting, Respondent was apprised that her tardies and absences were excessive and that they, along with her failure to adhere to the other previously issued directives, constituted gross insubordination. On March 13, 2013, Petitioner took action to suspend Respondent without pay and terminate her employment as a teacher. Respondent's Criminal History Petitioner presented evidence that in August 2012, a records check for Respondent was generated after information was received from Petitioner's Fingerprinting Office indicating that Respondent had been arrested in January 2011 for violation of a protective injunction and in July 2011 for battery. However, this evidence consisted solely of hearsay. Petitioner did not present any non-hearsay evidence establishing that these arrests occurred. Respondent denied that she was arrested in January 2011. She acknowledged that she was arrested for battery in July 2011. She testified, credibly, that the arrest occurred over the July 4th holiday and that she timely reported this arrest by calling Petitioner's instructional staffing office. Respondent credibly testified that the charge was not prosecuted and ultimately was dismissed. Petitioner did not present any competent or credible evidence to refute Respondent's testimony on these points. Respondent's Defenses Respondent asserts that she was not tardy as frequently in the 2011-2012 school year as Petitioner asserts. She questions the accuracy of Surrancy's and others' recordkeeping regarding her tardiness. However, she did not present any specific evidence to show that Petitioner's records of her tardiness in the 2011-2012 were inaccurate; thus, her position on that point is essentially speculative. She also claims that Surrancy did not treat her fairly or equitably during the 2011-2012 school year. Specifically, she asserts that Surrancy had the authority and flexibility to adjust her workday schedule so that she did not have to cover a homeroom class, thus allowing her to arrive at work later, but that Surrancy unfairly chose not to do so. Respondent further asserts that Surrancy had provided such accommodation to another teacher in a previous school year. Thus, Respondent claims that Surrancy treated her unfairly.15/ However, Surrancy testified, persuasively, that she could not have relieved Respondent of having a homeroom in order to enable her to arrive later in the workday because instructional personnel, other than coaches and co-teachers, were assigned homeroom or other professional duties that required them to be at school during regular workday hours. Thus, there was no one else available to assume Respondent's homeroom class responsibilities.16/ Respondent also asserts that Surrancy treated her disparately and unfairly by singling her out for discipline for her tardies, while not disciplining others who also were often tardy. However, even if that were the case, it does not excuse Respondent's tardies or provide a basis for Surrancy to decline to enforce school policies with respect to Respondent. Respondent also asserts that she was not afforded the FMLA leave to which she was legally and contractually entitled. Specifically, she argues that she filed FMLA leave forms stating the need for intermittent leave to care for her son, so that for the days on which she was tardy, the number of minutes by which she was tardy should have been counted as leave under the FMLA. Respondent testified, credibly, that she did not purposely refuse to follow the directives given her by Surrancy, Warren, and the Office of Professional Standards, and that her tardies during both school years were the result of her having to provide medical care for her young son and take him to daycare, then commute in heavy traffic to the worksites. Moreover, to the extent Petitioner claimed that Respondent was insubordinate because she did not adhere to directives to call the school if she was going to be tardy, Respondent credibly countered that she often would call in, only to be put on hold for some time and then told that the administrator she was attempting to reach was not available; thus, she started sending text messages instead to ensure that her message was received. Regarding the arrest reporting issue, Respondent denied that she was arrested in January 2011, and testified that she timely reported her July 2011 arrest to the appropriate authority. Findings of Ultimate Fact In these consolidated proceedings, Petitioner seeks to suspend Respondent without pay and terminate her employment17/ as a teacher on the basis of just cause——specifically, gross insubordination and misconduct in office.18/ As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.33 and rules 6A-5.056; and 6B-1.001 and 6A-10.080; and 6B-1.006 and 6A-10.081. Gross Insubordination Pursuant to the foregoing findings of fact, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent's conduct in accruing an extensive number of tardies during the 2011-2012 and 2012-2013 school years constituted gross insubordination. Although Respondent did submit leave request forms estimating the frequency and duration of FMLA-covered leave she would need in order to care for her son, the evidence shows that she was tardy far more frequently than supported by any of the forms she submitted. In order to accommodate an employee's FMLA request, Petitioner must be able to rely on the information the employee provides on the FMLA leave form. If the information provided on the form is inaccurate, Petitioner is neither required nor authorized to consider undocumented time away from the work site as leave covered under the FMLA.19/ While it is admittedly difficult to precisely predict when illness will occur, under any circumstances, the forms Respondent submitted did not cover the frequency of her tardies incurred in the 2011- 2012 and 2012-2013 school years.20/ As addressed above, it appears that Respondent was the victim of a coalescence of unfortunate personal circumstances that interfered with her employment. Nonetheless, the fact remains that she was repeatedly put on notice by Surrancy, Warren, and the Office of Professional Standards that her continued tardiness would constitute gross insubordination. Any measures that Respondent purportedly took to rectify the circumstances, such as enlisting the help of a friend to take her son to daycare, apparently were unsuccessful. Respondent had the option in the 2011-2012 school year to transfer to another school to address the morning commute issues, but she chose not to. Although she had legitimate personal and professional reasons for choosing to remain at HMS, the fact remains that she elected not to pursue a course of action that may have addressed the problematic circumstances she found herself in. Under these circumstances, the undersigned concludes, albeit reluctantly, that Respondent's conduct——which took place over a period of two school years, after frequent admonitions, and after she had been placed on notice several times that her continued conduct would constitute gross insubordination——does, in fact, constitute gross insubordination. With respect to Respondent's absences in February 2013, the evidence indicates that Petitioner's Leave Office and Principal Warren unnecessarily delayed notifying Respondent that her leave request for February 2013 had been denied. The evidence gives rise to the inference that Respondent may have cut her leave short and returned to the work site had she been timely informed that her request had been denied. Moreover, Petitioner presented no competent evidence regarding the specific basis for the Leave Office's denial of Respondent's request, or for Warren's denial of Respondent's retroactive request on the same basis. Under these circumstances, the undersigned determines that Respondent's absences for the month of February 2013 should not be considered unexcused. However, even without considering these absences, Respondent's repeated tardiness over an extended period of time without proper leave documentation and after extensive prior notice of the consequences, is sufficient to establish gross insubordination. Misconduct in Office As more fully discussed below, Petitioner proved, by a preponderance of the evidence, that Respondent committed misconduct in office under both versions of rule 6A-5.056 in effect in the 2011-2012 and 2012-2013 school years, respectively. Specifically, Respondent's frequent and repeated tardiness during the 2011-2012 school year violated the Code of Ethics in the Education Profession because her conduct caused her to lose the respect and confidence of her colleagues. In particular, Respondent's frequent tardiness substantially undermined Surrancy's confidence in her reliability, and, thus, impaired her effectiveness in the school system. Respondent's frequent and repeated tardiness over the course of the 2012-2013 school year also constituted misconduct in office. Again, she violated the Code of Ethics in the Education Profession by failing to maintain the respect and confidence of her colleagues. Respondent's frequent tardiness adversely affected Warren's confidence in her reliability. Additionally, on the days when Respondent's tardiness necessitated her students being moved to another teacher's classroom, her students' learning environment was disrupted, and her own ability and that of her colleagues to effectively perform their duties was reduced. As a result, Respondent's effectiveness in the school system was impaired. Petitioner also charged Respondent with violating Policy 3210, Standards of Ethical Conduct, which provides that all employees are representatives of the Miami-Dade County School District and requires employees to conduct themselves in a manner that will reflect credit upon themselves and the school system. Respondent's frequent tardies over an extended period of time gave the appearance of disregard for school policies and did not reflect credit on her or on the school district. Moreover, Respondent did not protect her students from conditions harmful to learning on the days when they had to be moved to another teacher's classroom due to her tardiness.21/ Accordingly, Respondent violated Policy 3210. Respondent also violated Policy 3210.01, Petitioner's Code of Ethics. As found above, she did not protect her students from conditions harmful to learning on the days when she was so tardy that they had to be moved to another classroom. However, Respondent did not violate Policy 3430, Leaves of Absence. For the reasons discussed above, Respondent's absences in February 2013 should not have been determined unexcused; thus, she did not violate Policy 3430. Respondent also did not violate Policy 3121.01, Employment Standards and Fingerprinting of Employees. To the extent Petitioner argues that Respondent lacks good moral character based on having been arrested, Petitioner did not present any competent evidence regarding her arrests or failure to timely report them as required by school board policy. Respondent acknowledged that she had been arrested in July 2011 but testified that she had timely reported it, and that the charge ultimately was dismissed. Petitioner did not offer any competent evidence22/ to counter Respondent's testimony, which is deemed credible and persuasive. Factual Basis for Recommended Sanction The persuasive evidence establishes that Respondent did not purposely set out to violate school policies and Department of Education rules, but that circumstances coalesced such that Respondent found herself in the extremely difficult position of having to care for her very ill son and take him to daycare, then undertake a lengthy commute in morning traffic, without enough time to accomplish both. As unfortunate and trying as those circumstances were, they do not excuse Respondent from complying with the crucial and reasonable requirement that employees arrive to work on time.23/ Nonetheless, the evidence establishes that Respondent is an innovative, proficient teacher in the critical subject areas of science and math, and that she cares about performing her job well——to the extent that she declined an out-of-field teaching assignment, in part due to concern that she would not perform effectively in that assignment. As such, it is reasonable to infer that under less demanding circumstances, such as having a shorter commute or a later workday starting time, Respondent would perform her teaching duties proficiently and professionally. The circumstances in this case warrant upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013- 2014 school year, and denying back pay for the full period of her suspension. However, given the very trying circumstances Respondent faced in the 2011-2012 and 2012-2013 school years, and because the evidence indicates that under less oppressive circumstances Respondent likely would be an innovative, proficient, and professional teacher, the undersigned believes that terminating Respondent's employment would be excessively harsh and that Petitioner would lose a good teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013-2014 school year; denying back pay for the full period of her suspension; and reinstating Respondent's employment as a teacher at the start of the 2014- 2015 school year. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 31st day of March, 2014
