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 Respondent's employment should be terminated.
Findings Of Fact At all times pertinent to this case, Tuff was employed by the School Board as a custodian and assigned to one of the School Board's transportation centers. At all relevant times, Tuff was an "educational support employee," who has successfully completed his probationary period within the meaning of Section 1012.40, Florida Statutes; a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME); and was covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). For at least two years prior to his termination, Tuff's attendance record and job performance were poor. Tuff repeatedly violated School Board rules regarding unauthorized absences and or procedures relating to medical leave. Under the AFSCME contract, the School Board could have taken disciplinary action, including termination, on numerous occasions during this period, but did not. By way of defense, Tuff contended that at all relevant times, the School Board knew or should have known that Tuff's absences were related to a medical condition which has since been mitigated through proper treatment. Tuff's evidence concerning what, if any, medical condition he had was unpersuasive. It is therefore unnecessary to reach the question of whether Tuff's medical condition, if proved, would have afforded a legal defense to his absences from work under the facts and circumstances of this case. Tuff's absences created a morale problem among co- workers, who were chronically imposed upon to perform tasks which properly belonged to Tuff. Tuff's co-workers complained to mutual supervisors. Supervisors, in turn, spoke frequently to one another and to Tuff about his attendance record, all of which was disruptive to the workplace. Although it is a violation of School Board policy to discuss a personnel issue with a non-employee, on one occasion, a supervisor in Tuff's chain of command, who had known "Mr. Tuff and his entire family for over 20 years," discussed Tuff's absenteeism with Tuff's father. By the spring of 2004 Petitioner decided it would no longer tolerate Tuff's inability to comply with its rules prohibiting unauthorized absence. At least one supervisor concluded there was "no other alternative but to follow the procedures and recommend termination." Petitioner thereafter commenced to document Respondent's unauthorized absences from the workplace, and to provide Respondent with applicable statutory and contractual notice regarding his failure to comply with Petitioner's relevant policies. More specifically, on April 8, 2003, and May 5, 2003, Tuff received verbal warnings for unauthorized absences. On June 18, 2003, Tuff received a written warning regarding continued unauthorized absences. The School Board documented and proved 11 unauthorized absences in the first and second quarters of 2003. Under the AFSCME contract, ten unauthorized absences in a 12-month period constitute grounds, standing alone, for termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Tuff's employment. DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida. S 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 5th day of May, 2005. COPIES FURNISHED: Denise Wallace, Esquire Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394 Honorable John L. Winn Commissioner of Education Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct (to: wit: "conduct unbecoming a School Board employee" and "misconduct in office") alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, 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 received at the formal hearing in this case, 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 Dade County, Florida. Respondent is now, and was at all times material to the instant case, an employee of the School Board occupying a school monitor position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Other than this suspension, he has had no formal disciplinary action taken against him during the period of his employment with the School Board. 1/ Respondent's employment with the School Board began on March 10, 1993, when he was hired to fill an hourly school monitor position at John F. Kennedy Middle School (JFK). At the beginning of the 1993-1994 school year, Respondent became a full-time school monitor at JFK. He remained in that position until he was administratively reassigned in March of 1995, following the incident which led to the initiation of the instant disciplinary proceeding. As a school monitor, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1994, through June 30, 1997 (UTD Contract). Article V of the UTD Contract addresses the subject of a "employer rights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate employees "for just cause." Article VIII of the UTD Contract addresses the subject of a "safe learning environment." Section 1, paragraph A, of Article VIII provides as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph D, of Article VIII provides, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accord- ingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. Article XXI of the UTD Contract addresses the subject of "employee rights and due process." Section 1, paragraph B, of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Section 3, paragraph D, of Article XXI provides that educational support personnel who have completed their probationary period may be dismissed for just cause, which includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality and/or conviction of a crime involving moral tur- pitude. Such charges are defined, as appli- cable, in State Board Rule 6B-4.009. Section 3, paragraph F, of Article XXI provides, in part, that such an educational support employee is entitled to an appeal hearing on the Superintendent's recommendation that he or she be terminated and is further entitled to be served by the School Board with a Notice of Specific Charges prior to the hearing. Valerie Carrier is now, and was at all times material to the instant case, the principal of JFK. As principal, Carrier is responsible for the overall operation of the school. It is her obligation to take the necessary measures to maintain a safe environment for the school's students. There is a security staff at the school, comprised of school monitors, that assists Carrier in carrying out this responsibility. According to their job description, the school monitors on the school's security staff have the following "basic objectives" and "job tasks/responsibilities:" BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures that appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school admini- stration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the pre- sence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gathering areas (before, during and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Carrier assigns each school monitor a post at which the monitor performs these job duties. If a monitor observes, from his or her post, a student engaging in inappropriate behavior, the monitor may attempt to verbally redirect the student, but the monitor is not permitted to impose consequences for the student's behavior. Each monitor is issued a hand-held radio to be used for communicating with other school personnel. If a misbehaving student fails to comply with a monitor's verbal instructions, the monitor is required to use the hand-held radio to advise an administrator of the situation. Joshua Cummings was a student at JFK during the 1994-95 school year. He frequently engaged in inappropriate behavior. Carrier gave the members of her staff, including Respondent, special instructions regarding how they should respond to acts of inappropriate behavior on Joshua's part. 2/ She told them that they should report any such acts directly to her or, in her absence, her designee. On March 17, 1995, during the first lunch period, Respondent was assigned to a post on the entrance courtyard side of the chain link double-gate that separates the entrance courtyard from the cafeteria spill-out area. The cafeteria spill-out area is, as its name suggests, an area outside the cafeteria where students gather after eating lunch and wait for their lunch period to end. There is a school monitor posted in the cafeteria spill-out area near the door that students use to exit the cafeteria and enter the spill-out area. Another school monitor is stationed on the other side of the exit door inside the cafeteria. Pursuant to the standard operating procedure at the school, the chain link double-gate between the entrance courtyard and the cafeteria spill-out area remains closed and locked until the end of the lunch period, when the students are picked up by their teacher. At the teacher's request, the school monitor manning the post on the entrance courtyard side of the double-gate unlocks (with a key) and then opens the double-gate 3/ and lets the students waiting in the cafeteria spill-out area go into the entrance courtyard to meet their teacher. If it becomes necessary for a student in the spill-out area to use the restroom before the end of the lunch period, the student must reenter the cafeteria, obtain a pass from an administrator 4/ and then leave the cafeteria through the cafeteria's main entrance. Students are not permitted to use the double-gate to exit the spill- out area before the end of the lunch period. On March 17, 1995, Joshua Cummings had lunch during the first lunch period (which began at approximately 11:30 a.m. and lasted approximately 30 minutes). Jean LaDouceur and Dorys Cadet were among the other students who had lunch during the first lunch period on March 17, 1995. Approximately 100 or more of these students, including Joshua, Jean and Dorys, were in the cafeteria spill-out area, prior to the end of the first lunch period on this date, when Joshua started shaking the chain-link double- gate and yelling at Respondent to unlock and open the gate so that he (Joshua) could go to the restroom (which was located off the entrance courtyard near the gate). Respondent was in the area of his assigned post in the entrance courtyard sitting on the steps leading to the school auditorium. He got up and, as he walked toward the double-gate, he told Joshua that Joshua had to wait until the end of the period if he wanted to exit the spill-out area through the double-gate. Joshua apparently did not want to wait. He continued to shake the double-gate and shout obscenities at Respondent. Respondent responded in an unseemly and inappropriate manner that evinced a reckless disregard for the safety of Joshua and the other students in the spill-out area who were around him. Instead of continuing his efforts to verbally redirect Joshua or radioing for assistance, Respondent, from his position on the courtyard side of the double-gate, responded to Joshua's misbehavior by angrily hurling his hand-held radio (which had a battery pack attached to it) at the gate near where Joshua (who was on the spill-out area side of the gate) was standing. The radio hit the gate and shattered. Jean and Dorys were sitting on a picnic table in the spill-out area approximately twenty feet from the double-gate. There were several other students on or near the table with whom Jean and Dorys were conversing. The battery pack that had been attached to Respondent's hand-held radio before Respondent threw the radio at the gate wound up striking Jean on the right side of his forehead while he was sitting on the picnic table. (It apparently travelled through a space in the center of the gate.) Jean started bleeding. Accompanied by Dorys, Jean went to see Carrier to report what had happened. (To get to Carrier's office, which is off the entrance courtyard, approximately 20 feet from the double gate, they had to reenter the cafeteria because the double-gate was still locked.) Joshua also went to see Carrier. (He had been "nick[ed]" by a piece of Respondent's shattered radio.) After speaking with Jean and Joshua, Carrier called fire rescue. Fire rescue subsequently arrived on the scene and treated Jean's wound. Jean was advised by the paramedic who treated him to have a physician close the wound with stitches. Jean, however, did not seek further medical attention. (The wound eventually healed, but Jean has a small scar on the right side of his forehead as a result of his injury.) Carrier also called Jean's and Joshua's parents. After Jean's and Joshua's parents arrived at school, Carrier met with Respondent to discuss the incident. Respondent told Carrier what had happened. He went with Carrier to the entrance courtyard where he had been stationed and described how and where he had thrown his hand-held radio. Carrier picked up the pieces of Respondent's hand-held radio that were lying on the ground near the double-gate. Respondent also freely and voluntarily, at Carrier's request, prepared a written statement on the day of the incident in which he admitted that earlier that day, at about 11:53 a.m., in response to Joshua's yelling and kicking the double-gate, he had thrown his radio at the gate and that "parts of the radio [had gone] thr[ough] the gate and nick[ed Joshua]." After hearing the students' and Respondent's accounts of the incident, Carrier had legitimate concerns regarding Respondent's ability to effectively carry out his responsibilities as a school monitor. Respondent's conduct had jeopardized the health, safety and well-being of the very individuals it was his job, as a school monitor, to protect. Following the completion of an investigation of the incident, the School Board's Superintendent of Schools recommended 5/ that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its July 12, 1995, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. STUART M. LERNER, 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 19th day of February, 1996.
The Issue The issue is whether Petitioner has just cause to place Respondent, a classroom teacher, on administrative leave without pay from November 20, 2013, through the remainder of the 2013- 2014 school year due to Respondent’s excessive absenteeism, as alleged in the December 19, 2013, Statement of Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at PSLHS, a public school in St. Lucie County, Florida. Respondent has been employed by the District for approximately 20 years. Respondent has a professional services contract pursuant to section 1012.33. As a classroom teacher, Respondent is charged with instructing high school students. Regular attendance is considered by Petitioner to be an essential function of the position of classroom teacher. Pursuant to Board Policy 6.549(1)(a), Respondent was entitled to four days of sick leave as of the first day of employment of each school year and thereafter earned one sick day for each month of employment, for a maximum of ten sick days per school year. 2012-2013 School Year During the 2012-2013 fiscal year, Respondent was assigned to teach intensive math classes to students who struggle to pass required state exams required for graduation. Hargadine, in coordination with Petitioner’s Human Resources Department, directed Assistant Principal April Rogers (Rogers) to meet with Respondent on October 2, 2012, to address Respondent’s pattern of absenteeism and the impact it was having on students, and to explore the possibility of accommodations if his frequent absences were caused by a health condition. At least one student asked to be removed from Respondent’s class due to the frequency of Respondent’s absences. As directed, on October 2, 2012, Rogers met with Respondent and discussed Petitioner’s concerns that Respondent’s absences resulted in his students missing math instruction for 39 percent of their scheduled classes. Respondent was notified that he had already exhausted his available sick leave and he had not properly filled out leave requests in a timely manner. During this meeting, Respondent acknowledged that his absences had a negative impact on students. This conference was memorialized in a Summary of Conference dated October 2, 2012, issued to Respondent from Rogers. After the October 2, 2012, meeting, Respondent was also absent on October 16 through 19, 2012. On October 23, 2012, Rogers issued a Letter of Concern to Respondent detailing his continued excessive absenteeism and failure to timely request leave. The letter advised that Respondent’s absenteeism amounted to 17 of 42 instructional days and equated to 40 percent of lost instructional time for Respondent’s students. This letter reiterated that Respondent’s absences directly affect his students’ educational success. In addition to Respondent disrupting the continuity of the classroom by failing to attend work, Respondent also failed to supply adequate lesson plans and/or provide for student instruction while he took unapproved leave. On several occasions, Hargadine or her assistant principal had to create or add to the lesson plans to enable a substitute to teach Respondent’s classes. Respondent’s absenteeism and lack of proper notice of his absences resulted in his students being “taught” by individuals who did not have a college degree in mathematics, or even education, as some of these individuals were substitutes (who only need a high school diploma), para-educators, and even clerical workers. When staff members were required to provide coverage for Respondent’s classes, it negatively impacted both students and co-workers. For example, if a clerical worker or para-educator was called to provide coverage for Respondent’s classes, their own work would have to wait and they would not be able to complete their own specific job duties in order to ensure coverage for Respondent’s students. After receiving the October 23, 2012, Letter of Concern, Respondent was also absent on October 31, November 1, November 2, November 5, and November 6, 2012. As the assistant superintendent for Human Resources, Ranew assists site-based administrators (principals and assistant principals) concerning staff discipline and adherence to policies and procedures. Rogers requested Ranew’s assistance in addressing Respondent’s absenteeism. On November 6, 2012, Ranew issued a letter to Respondent regarding his excessive absenteeism. This letter from Ranew reminded Respondent of the importance of him submitting leave requests because his school would not know of his absence even if he properly requested a substitute teacher using the AESOP (computerized) system. By this letter, Ranew also attempted to initiate the “interactive process” required by the Americans with Disabilities Act (ADA). Although Respondent had not identified himself as a “qualified individual with a disability” within the meaning of the ADA, his excessive absenteeism suggested that he might need an accommodation if his absenteeism was being caused by a medical condition. The November 6 letter stated, “to the extent that your absenteeism is being caused by medical condition, the District may be agreeable to allowing you to take a leave [of absence] to accommodate such a condition, if that would help. In the event you realize that you are unable to regularly be at work due to a medical condition, you should consider promptly requesting an extended leave of absence (e.g., for this semester or the school year), and the District would be willing to consider such a request.” To determine Respondent’s potential eligibility for an accommodation pursuant to the ADA, Ranew specifically requested that Respondent’s doctor provide documentation clarifying: “a) any specific condition/impairment that Respondent has, as well as the cause; b) any restrictions/limitations on Respondent’s work duties as a teacher; c) the expected duration for each limitation or whether it is permanent; d) whether the condition is controllable with the use of medication, and if yes: what is the mitigating effect of this medication; and whether Respondent could fully perform his job duties, with the aid of such medication.” In response to Ranew’s letter, Respondent provided the District with a doctor’s note from Dr. Kenneth Palestrant dated November 7, 2012, stating that the majority of Respondent’s visits to the clinics occur between the months of January through May and September through December (effectively during the calendar school year) and speculated that Respondent “may” be exposed to allergens in the school building or in his classroom. Dr. Palestrant explained that Respondent was being treated with antibiotics and allergy medications and recommended Respondent receive an allergy test from an allergist to identify the specific allergens. Dr. Palestrant found that other than the potential environmental exposure to an allergen, he found “no reason [Respondent] cannot perform his full duties as a school teacher as he has no impairment and the medications he has been given have no mitigating effect upon his performance.” After receiving Dr. Palestrant’s November 7, 2012, note, and after receiving an e-mail from Respondent in which he wondered if something in his classroom might be causing his medical condition, Ranew asked Sanders to inspect Respondent’s classroom. Sanders’ job duties would require him to facilitate any remedial action with regard to Respondent’s classroom, should one be needed. In response to this request, Respondent’s classroom was inspected but nothing of concern was discovered within the room. Nonetheless, the classroom was sanitized using two methods: with an ozone machine to kill bacteria and other germs, including mold, and also with a fogger using disinfectant that kills microorganisms, bacteria, and mold, as a precaution. On November 15, 2012, Respondent sent an e-mail to Ranew, informing her that he was “being evaluated by an Allergist, and will be setting up a colonoscopy per doctor’s orders Tuesday, [November 20, 2012].” On November 15, 2012, Ranew sent an e-mail to Respondent requesting that he provide her with an allergist report when complete. On November 16, 2012, Respondent sent an e-mail to Ranew in which he discussed beginning to take a new allergy medicine, and promised to fax the allergist report to her. Ranew issued a letter to Respondent dated December 21, 2012, advising him that she had yet to receive an allergist report, again requesting such a report or medical clarification. Ranew’s December 21, 2012, letter also reminded Respondent that regular, consistent, punctual attendance, and working a full assigned workday are essential functions of his position as a classroom teacher. Although Respondent did not request leave under the Family and Medical Leave Act (FMLA), when he failed to provide the requested allergist report five weeks after Ranew requested it, and Respondent continued his pattern of excessive absenteeism, the District advised that it intended to designate his absences as FMLA-qualifying. Ranew’s December 21, 2012, letter to Respondent again requested clarification from Respondent’s doctor/allergist, with a focus on “whether there is a modification or adjustment to the work environment that will enable you to perform the essential functions of [your] position (classroom teacher).” Respondent was told, “[i]n the event that you believe that something such as trees, grass, or something else near your current classroom/school may be causing your condition, which has resulted in many absences, the [School] District is willing to consider a request to transfer you to another location.” Notably, Respondent did not provide any information from a health care provider which suggested any work modification would enable him to perform the essential functions of his job, nor did he take advantage of Petitioner’s offer of a transfer to another location. In response, Respondent emailed Ranew on December 29, 2012, advising that his allergy test would be conducted on January 3, 2013, and he would provide the results to her as soon as he received them. Respondent also expressed interest in obtaining information regarding short-term disability leave. On January 8, 2013, Ranew advised Respondent that if he desired to take leave in connection with his private insurance company’s short-term disability policy, she requested that he advise her “as soon as possible as the [School] District may be able to accommodate you with an extended leave.” There is no evidence that Respondent pursued Ranew’s offer for an accommodation in connection with short-term disability. By letter dated January 8, 2013, Ranew advised Respondent that she still had not received a copy of his allergist’s report, and she “had been trying to accommodate [Respondent], but it is difficult to do when the information [the School District] need[s] is still not provided.” Ranew again reminded Respondent that his students needed continuity in the classroom and, if he was unable to provide that, other arrangements would need to be made for the upcoming semester. Respondent provided Ranew with an allergist report dated January 18, 2013. The report explained that Respondent tested positive for multiple allergens, and recommended treatments, including immunotherapy (allergy injections), prescribed medications (nasal sprays), and surgery (balloon sinuplasty). Respondent’s allergist identified Respondent being allergic to 42 antigens, including cats, dogs, various grasses, weeds, trees, dust mites and cockroaches, and mold. Respondent’s allergist recommended Respondent undergo surgery, and Petitioner permitted Respondent to take FMLA leave for such surgery. Respondent was also permitted to intermittently use all remaining FMLA leave available to him, which he exhausted and which expired on March 28, 2013, due to the conclusion of his FMLA designated 12-month period. In addition to utilizing all FMLA leave available, the District also provided an additional 21 days of unpaid leave during the remainder of the 2012-2013 school year to Respondent, which was above and beyond his allotted sick leave, as well as above and beyond the 60 days of FMLA leave to which he was entitled. During the 2012-2013 school year, Respondent was absent 89 out of 191 possible work days, which accounts for an absenteeism rate of 48 percent. During the 2012-2013 school year, Respondent only worked 772.50 hours. Although Petitioner designated additional unpaid days as FMLA, Respondent was not eligible for additional FMLA leave beginning in March 2013 through March 2014 because he had not worked the requisite number of hours in the preceding 12- month period to be eligible for FMLA leave. 2013-2014 School Year On August 9, 2013, prior to the beginning of the 2013- 2014 school year, Ranew sent a letter to Respondent regarding his excessive absenteeism; explaining that his regular attendance was expected during the upcoming 2013-2014 school year; that his students need continuity in the classroom and if he was unable to provide that continuity, that other arrangements needed to be made for the next school year; that he should not expect to be automatically extended any additional unpaid leave during the 2013-2014 school year; and he would only receive the sick leave to which he was already entitled. Ranew advised Respondent that when he returned for work at the beginning of the 2013-2014 school year he would have four days of permitted sick leave advanced to him, and would accrue one additional day at the end of each month from August through February. In this letter, Ranew also told Respondent that it was her understanding that the sinus surgery that he underwent was part of his treatment plan to resolve the sinus and allergy issues which seriously impacted his attendance (during the 2012- 2013 school year) and that his chronic sinusitis was expected to improve post operatively. Respondent did not challenge or correct Ranew’s understanding on these issues and did not indicate that additional absences were anticipated. Ranew had serious concerns about the lack of consistent instruction for Respondent’s students due to Respondent’s absenteeism. Only 11 of Respondent’s 94 students passed the standardized math examination required for graduation in the 2012-2013 school year, which is approximately a 12 percent pass rate. This was significantly lower than the 50 percent pass rate of Respondent’s colleagues who also taught the same type of “struggling” math students. In order to minimize the potential disruption to students caused by excessive absenteeism, Respondent was assigned to teach accounting classes for the new school year which are not courses required for graduation. Respondent was also assigned to a different classroom, in a different building, for the 2013-2014 school year. As of October 3, 2013, Respondent was absent on August 27, 28, 29, 30, and September 5, 9, 20, 23, 25, 26, and October 2, 2013, well in excess of the sick leave that he was permitted to take in accordance with Board policy. By letter dated October 3, 2013, Ms. Ranew wrote to Respondent advising him that his pattern of absenteeism has a direct negative impact on an orderly learning environment and referring to her August 9 correspondence wherein she directed Respondent to advise the District if he needed leave above and beyond the sick days that he was permitted to take. Ranew advised Respondent that he had not provided the requested medical documentation that would support that he had a medical condition necessitating leave from his job, but that the District was continuing its attempt to engage Respondent in an interactive process concerning his medical condition, and again requested documentation from Respondent’s doctor addressing his recent absences and his current condition. In response to Ranew’s October 3, 2013, letter, Respondent submitted a doctor’s note dated October 9, 2013, which advised that Respondent’s condition “can be treated with nasal sprays and intermittent antibiotics” but raised the potential for future treatment to include additional surgical procedure(s). Importantly, the doctor’s note clearly explained that Respondent “can perform as a teacher with [his medical conditions], though he may notice hearing loss changes whenever he has middle ear fluid.” The October 9, 2013, doctor’s note Respondent submitted accounted for four of his absences in August and two of his absences in September, but failed to address the other eight absences which he incurred during September and October 2013. Even after receiving Ms. Ranew’s October 3, 2013, letter, Respondent was absent on October 9, 21, and 22, 2013. As of October 24, 2013, Respondent was absent 14 days out of 46 instructional days for the 2013-2014 school year. Ranew worked with Yost in the decision to recommend to the Board that Respondent be placed on administrative leave without pay. The basis for that recommendation was Respondent’s excessive absenteeism and failure to follow protocol for sick leave. By letter dated October 24, 2013, Yost advised Respondent that she was recommending his placement on a leave of absence specifically because of his continual excessive absenteeism, which had been a constant disruption to the classroom and directly impacted an orderly, continuous learning environment for his students. Yost believed that recommending Respondent be placed on leave without pay was not disciplinary in nature, but rather done to provide him an accommodation to resolve any issues which had caused his excessive absenteeism. On October 24, 2013, Yost placed Respondent on “home assignment” with pay through November 19, 2013, at which time the Board voted to accept Yost’s recommendation to place Respondent on leave without pay for the remainder of the school year. The Charges Against Respondent In its Statement of Charges in Support of the Placement on Administrative Leave Without Pay filed on December 19, 2013, the District advanced four theories for Respondent’s leave without pay: incompetency, gross insubordination, willful neglect of duty, and misconduct in office. “Incompetency” is defined in Florida Administrative Code Rule 6A-5.056(3) as, “the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.” “Gross insubordination” is defined in rule 6A-5.056(4) as “the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties.” See Fla. Admin. Code R. 6A-5.056(2)(c). “Willful neglect of duty” is defined in rule 6A-5.056(5) as the “intentional or reckless failure to carry out required duties.” “Misconduct in Office,” according to rule 6A-5.056(2), is satisfied by a showing of one or more of the following: a violation of the adopted school board rules, a violation of the Code of Ethics of the Education Profession in Florida (as adopted in Florida Administrative Code Rule 6B-1.001), or behavior that disrupts the student’s learning environment. The Board’s Policy 6.301(3)(b) identifies a variety of terminable offenses including: Insubordination * * * (x) Failure to follow a direct order in normal performance of employee’s job * * * Failure to notify supervisor and receive permission for one or more consecutive workdays’ absence Unsatisfactory work performance Excessive absences or tardiness Neglect of duty Unauthorized absences * * * (xix) Violation of any rule, policy, regulation, or established procedure * * * (xxix) Any violation of the Code of Ethics of the Education Profession, the Principles of Professional Conduct for the Education Profession, the Standards of Competent and Professional Performance, or the Code of Ethics for Public Officers and Employees * * * (xxxiv) Failure to correct performance deficiencies The finding that Respondent violated one and/or multiple Board policies relating to his excessive absenteeism necessarily shows that he is guilty of “misconduct in office.” Respondent’s Defenses Reason for Absences Respondent does not dispute his record of absenteeism or the District’s record of communicating its concern regarding his chronic absenteeism and its effect on his students. Rather, Respondent asserts that his absenteeism was related to the environmental conditions at PSLHS. Respondent believes that he suffered from chronic sinus problems, headaches, and repeated scratchy throats due to possible exposure to mold or other allergens at the school which caused many of his absences. According to Respondent, PSLHS suffered storm damage in 2008 that resulted in mold growing around his classroom door. After school authorities were notified by Respondent of the mold issue, the door and mold was removed. Respondent has not worked in that classroom in more than three years. Respondent admitted that some of his absences during the 2012-2013 and 2013-2014 school years were not related to sinus problems. For example, Respondent missed work when he stayed up late with a new puppy. Respondent also missed work to get massage therapy on several occasions. Several of Respondent’s absences were attributed to stomach issues. None of Respondent’s doctors identified any need for Respondent to be extensively absent from work due to any medical condition, other than his recommended sinus surgery which occurred in early 2013 and was covered by FMLA. No evidence was introduced at the hearing that any of Respondent’s doctors actually determined that anything either at PSLHS or within Respondent’s classroom caused Respondent’s excessive absenteeism, or that Respondent could not work at PSLHS due any medical reason. To the contrary, during the 2012-2013 school year, Respondent provided 30 doctor’s notes returning him to work with no restrictions. During the 2013-2014 school year, Respondent provided four doctor’s notes returning him to work with no restrictions. Respondent admitted he was allergic to various grasses and trees common to Florida, and even admitted he was allergic to the grass in his own yard. When Respondent was asked if anything changed in his home environment between the 2011-2012 and 2012- 2013 school years where his absences skyrocketed, he testified that he had just gotten a puppy. During the relevant time period, approximately 70 percent of Respondent’s absences occurred on days when the proceeding day was not a school day, which suggests it was unlikely that Respondent’s absences were due to the environment at his work site. Although Respondent claimed his school environment exacerbated his allergies, his absences at issue are full-day absences where he called in sick for the entire day rather than leaving work during the workday. At no time did Respondent or his healthcare providers suggest that PSLHS or Respondent’s classroom should have air quality testing. Respondent admitted, on the days he was absent, he felt worse when he woke up at home than when he was at work in his classroom and when he was too sick to come to work he would wake up “hacking.” Further, while on administrative leave without pay, Respondent showed up to PSLHS in January 2014 to oversee a wrestling tournament that he previously helped organize. It is illogical that Respondent would voluntarily return to the very place which he now suggests made him so sick that he needed to continuously take days off without available leave or sick time. No credible evidence was presented to suggest that Respondent’s chronic absenteeism was as a result of the District’s failure “to provide a suitable working environment,” as alleged by Respondent.1/ Use of Administrative Leave Rather Than Discipline The Board asserts that Respondent’s chronic pattern of absences during the 2012-2013 school year and the first few months of the 2013-2014 school year resulted in “just cause” for termination. However, in lieu of termination, Ranew proposed, and the Board accepted, her recommendation for administrative leave without pay. Ranew credibly testified that she believed this would give Respondent the opportunity to take care of any problems that were causing his absenteeism and allow him to successfully return to the classroom in the 2014-2015 school year. There is no provision under any statute, rule, or policy specifically providing the Board with the authority to place an employee on administrative leave without pay instead of a suspension without pay or termination.2/ Because of this, Respondent argues that he was deprived of due process by the Board and that the Board’s action constitutes the improper use of an unpromulgated rule. A “rule” is defined in the Administrative Procedure Act (APA) as an: agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of rule. § 120.52(16), Fla. Stat. No evidence was presented regarding any alleged Board “statement of general applicability” regarding the use of administrative leave without pay as a substitute for disciplinary action. Further, it is clear from the record that Respondent received all the process to which he was entitled--notice and an opportunity to be heard prior to the implementation of the leave without pay. Respondent was provided a letter by hand delivery on October 24, 2013, from Yost in which he was advised that he was being placed on temporary duty assignment until the next Board meeting and that she intended to recommend he be placed on administrative leave without pay through the remainder of the school year due to his excessive absenteeism. He was notified that he had exhausted all paid leave yet continued to be absent. It was also noted that Respondent’s physician indicated he could perform as a teacher but may have a hearing loss when middle ear fluid is present. Notably, his physician’s letter accounted for four of his absences in August and two of his absences in September 2013, but did not address the other eight absences which he incurred during September and October 2013. This letter advised Respondent that if he had any information to provide regarding why this action should not be taken, he could do so in a meeting or in writing. Accordingly, Respondent had notice and an opportunity to be heard prior to the implementation of the leave without pay. Additionally, the Statement of Charges issued on December 19, 2013, and the formal administrative hearing before DOAH constituted notice and an evidentiary hearing-–the post adverse employment action due process to which Respondent was entitled. The undersigned has no doubt about the sincerity of the Board’s desire to see Respondent take time to address whatever was resulting in his absences and return to work successfully. However, to call Respondent’s “administrative leave without pay” a non-disciplinary action is an exercise in form over substance. While on leave, Respondent was not receiving his normal wages for teaching. He was not allowed to return to the school to teach for the balance of the school year.3/ Understandably, Respondent does not perceive his leave as beneficent. For all intents and purposes it is, in fact, a “suspension” without pay which, pursuant to the Board’s policies, applicable rules, and statutes, can only be imposed for “just cause.”4/ Determinations of Ultimate Fact The greater weight of the evidence establishes that Respondent engaged in a pattern of excessive and chronic unexcused absenteeism during the 2012-2013 and 2013-2014 school years, despite the District’s repeated reminders regarding the disruption caused by Respondent’s absences and its multiple attempts to accommodate any medical condition that might have been causing the absences.5/ This pattern resulted in a variety of terminable offenses as described in Board Policy 6.301(3)(b). It is determined, as a matter of ultimate fact, that Respondent is guilty of incompetency, as defined by rule 6A- 5.056(3)(a)5. by virtue of his excessive absenteeism--a pattern which was not resolved after FMLA leave, 21 additional days of leave without pay during the 2012-2013 school year, and which continued into the new school year of 2013-2014. It is determined, as a matter of ultimate fact, that Respondent is guilty of gross insubordination by virtue of his failure to perform his required duties, excessive absenteeism despite having no paid leave available, and failing to return to work on a consistent and regular basis after repeated and extensive counseling by the District regarding the consequences of his actions. It is determined, as a matter of ultimate fact, that Respondent engaged in willful neglect of duty by failing to regularly report to work or to properly request time off from work or make arrangements to have lesson plans available for substitute teachers. It is determined, as a matter of ultimate fact, that Respondent engaged in misconduct in office by virtue of his violation of School Board policies and disrupting his students’ learning environment by his chronic absenteeism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, St. Lucie County School Board, enter a final order upholding Respondent’s suspension without pay from November 20, 2013, through the end of the 2013- 2014 school year; denying back pay for the full period of his suspension; and reinstating Respondent’s employment as a teacher at the start of the 2014-2015 school year. DONE AND ENTERED this 12th day of June, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 12th day of June, 2014.
The Issue The issue for determination is whether Respondent should be suspended and dismissed from employment, as a Microsystems Technician, with Petitioner.
Findings Of Fact No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. In November 2001, Mr. Li was employed with the School Board as a Microsystems Technician. No dispute exists that, as a Microsystems Technician, Mr. Li is an educational support employee, and his employment is governed by the collective bargaining agreement between the School Board and AFSCME, hereinafter the AFSCME Contract. In April 2004, Mr. Li was assigned to two worksites, Cypress Creek Elementary School, hereinafter Cypress Creek, and Blue Lakes Elementary School, hereinafter Blue Lakes. At both schools, his responsibilities included installing computers, running the network, maintaining the software for the computers, and training students and teachers on how to use the software. At Cypress Creek, Mr. Li was assigned to work ten (10) days per month. He experienced problems with his attendance immediately at Cypress Creek, resulting in the principal, Faye Haynes, issuing an “Absence From Worksite Directive,” hereinafter AWS Directive, on May 27, 2004, to Mr. Li. The AWS Directive included, among other things, in detail his leave without pay, authorized (LWOA), and leave without pay, unauthorized (LWOU). Further, the AWS Directive advised Mr. Li, among other things, that his absence from his duties adversely impacted the educational and work environment; and directed him, among other things, to be in regular attendance at the school and on time, to report his intent to be absent directly to the principal or assistant principal, and to provide to the principal or assistant principal written documentation, by way of a written medical note from the treating physician, of absences for illness. Additionally, Mr. Li was advised that future absences would be considered LWOU unless and until the documentation was provided. Mr. Li signed the AWS Directive. However, his attendance failed to improve. A second AWS Directive was issued by Principal Haynes to Mr. Li on September 7, 2004, as a result of his being absent on September 2, 2004. Mr. Li signed the second AWS Directive on the same date. The second AWS Directive included the same matters of which he was previously advised and the same directives. Moreover, Mr. Li was advised that his non- compliance with the directives would be considered a violation of professional responsibilities or insubordination. Mr. Li’s absences failed to improve, and his absences adversely affected the worksite at Cypress Creek. Both teachers and students were suffering from the lack of timely computer- associated activities that were dependent upon Mr. Li timely performing his responsibilities. Mr. Li’s attendance was complicated even more on October 26, 2006. He was arrested for burglary, involving a vehicle, and battery. At the time of his arrest, Principal Haynes was not aware that the reason for Mr. Li’s immediate absence was that he was in jail; she was only aware that he had not reported to work at Cypress Creek. Mr. Li testified at hearing that, while he was in jail, he was given one (1) telephone call and that he called his wife. He explained to his wife what had happened and requested her to call Cypress Creek. Further, Mr. Li testified that his wife called Cypress Creek and indicated that he had been arrested. No testimony was presented contradicting the testimony that Mr. Li’s wife had contacted Cypress Creek. His testimony is found to be credible. On November 1, 2006, Principal Haynes issued and mailed to Mr. Li an Employment Intention Memorandum, hereinafter EI Memorandum. The EI Memorandum indicated, among other things, the dates of Mr. Li’s absences; that the absences were unauthorized and warranted dismissal on the grounds of job abandonment; that several options were available (indicating the options); and that an immediate response was requested to any of the options. Principal Haynes was concerned that Mr. Li was in danger of losing his job due to the number of unauthorized absences and, as a result, she included, as one of the options, a form requesting a leave of absence without pay. Mr. Li testified that he did not doubt that Principal Haynes was attempting to help him. On November 3, 2006, after serving ten (10) days, Mr. Li was released from jail. He had missed seven (7) consecutive workdays. Mr. Li reported to work at Blue Lakes, where he was also the Microsystems Technician. However, he was informed by the principal at Blue Lakes that he was required to report to Regional Center V, as an alternate location, a consequence of his arrest. Being at Regional Center V, Mr. Li was not able to perform any duties and responsibilities at either Cypress Creek or Blue Lakes. Regarding the EI Memorandum, Mr. Li testified at hearing that he received the EI Memorandum after he was released from jail, but did not complete the form requesting a leave of absence without pay because he was unsure as to whether he should complete and return it. He was not sure as to whether completing the form would benefit or harm him, so he did not complete it. His testimony is found to be credible. The evidence is clear and convincing that Mr. Li intentionally did not complete the form requesting a leave of absence without pay. Not having the services of Mr. Li adversely impacted Cypress Creek. Principal Haynes needed the computer services for her school, and, to provide the needed services, she was forced to hire another school employee, a Microsystems Technician, on an hourly basis to work in the evenings to perform Mr. Li’s responsibilities. In order to pay for the needed services being provided by another Microsystems Technician, Principal Haynes had to redirect funds from other programs. As a condition of his alternate placement, on November 3, 2006, Mr. Li executed a Terms and Conditions of Administrative Placement at Alternate Location, hereinafter Terms and Conditions, form. Included in the Terms and Conditions was a requirement that he report to his work assignment during his regular duty hours, which were 8:00 a.m. to 4:00 p.m. Monday through Friday; that he report his attendance by signing-in as directed; that, if he was to take leave due to illness or personal reasons, he must notify the person to whom he reports his attendance in the mornings, who was the administrative director, Melanie Fox, Ph.D., or, according to Dr. Fox, to an administrative secretary; and that he must complete and return work assignments in a timely manner. Mr. Li had attendance problems immediately at Regional Center V, and Dr. Fox advised and reminded him that he was able to apply for leave for a medical condition, if he had such a situation. Due to Mr. Li’s absences, while he was assigned to the Regional Center, on January 19, 2007, Dr. Fox issued him a second EI Memorandum, which was his second EI Memorandum in less than three months. The EI Memorandum indicated that Mr. Li was absent from his worksite 34 times, beginning with September 15, 2006, and ending with January 18, 2007. Furthermore, Dr. Fox indicated, among other things, in the EI Memorandum that the absences were unauthorized and warranted dismissal on grounds of abandonment; that he had four options to which she requested his immediate reply, including notifying her of his need for leave and his intended date of return, requesting leave or resigning, using the forms provided; that he had three days in which to reply; that his absences were considered unauthorized until he communicated directly with her; and that his failure to respond would result in termination due to abandonment. Included with the EI Memorandum, per the School Board’s policy, was a Request for Leave for Absence Without Pay form and a Letter of Resignation form, as options for Mr. Li. He did not complete either form. To determine whether Mr. Li’s absences were authorized or unauthorized, Dr. Fox was guided by the terms of the AFSCME Contract. No dispute exists that the AFSCME Contract was applicable and controlling. Dr. Fox determined that, according to the AFSCME Contract, after the covered employee’s sick leave is expended, any subsequent absence becomes unauthorized unless the employee provides a note from an attending physician. As a result, Mr. Li had expended his sick leave and, therefore, his absences were leave without pay, unauthorized, but, when he provided notes from an attending physician, the absences were changed in the payroll reporting system to leave without pay, authorized. Mr. Li returned to work. However, his absences did not cease. As to Mr. Li’s arrest for burglary, involving a vehicle, and battery, on March 6, 2007, he pled nolo contendere to battery; adjudication was withheld; and his sentence included one-year probation, performing community service, and participating in an anger management program. Mr. Li testified at hearing that no burglary was involved, only a fight. His testimony is found to be credible. On May 16, 2007, a conference-for-the-record, hereinafter CFR, was held to address Mr. Li’s attendance problems; violation of School Board Rule 6Gx13-4E1.01, Absences and Leaves; abandonment of position; insubordination; a review of his record; and his future employment status with the School Board. He did not attend the CFR due to being ill, i.e., passing kidney stones and experiencing great pain. A written Summary of the CFR was prepared, and Mr. Li was provided a copy of it. He does not deny that he received a copy of the Summary of the CFR. Included in the Summary of the CFR were Mr. Li’s absences for the 2005-2006 school year and from July 1, 2006 through May 3, 2007. For the 2005-2006 school year, he was absent six (6) sick days, six (6) personal days, nine (9) days LWOA, and one (1) day LWOU, totaling 22 days, excluding vacation days. From July 1, 2006 through May 3, 2007, he was absent two (2) sick days, three (3) personal days, 68 days LWOU, and 37 days LWOA, totaling 110 days, excluding vacation days. A copy of School Board Rules 6Gx13-4E1.01, Absences and Leaves, and 6Gx13-4A-1.21, Responsibilities and Duties, were attached to the Summary of the CFR. Also, included in the Summary of the CFR were directives to Mr. Li concerning his absences, which was his third time he was being issued directives. The directives included being in regular attendance and on time at the worksite; communicating directly with Dr. Fox when he intended to be absent; documenting absences for illness through a written medical note from his treating physicians presented to Dr. Fox upon his return to the worksite, with a failure to do so resulting in the absences being recorded as LWOU; and adhering to School Board rules, in particular 6Gx13-4E-1.01, Absences and Leaves, and 6Gx13-4A-1.21, Responsibilities and Duties. Furthermore, in the Summary of the CFR, Mr. Li was advised, among other things, that the number of absences were deemed excessive; that his absence from work had adversely impacted the educational program and the effective operation of the work unit; that, if he had attended, he would have been provided an opportunity to respond with reasons for his excessive unauthorized absences and insubordination; that noncompliance with the directives would necessitate a review by the Office of Professional Standards, hereinafter OPS; and that a legal review by the School Board attorneys might result in recommended action or disciplinary measures, including dismissal. Even after receiving the Summary of the CFR, Mr. Li’s problem with absences continued. As of June 13, 2007, he accumulated an additional 29 unauthorized absences. Subsequent to the CFR, Principal Haynes recommended the termination of Mr. Li because she determined that she could not depend upon him and that she needed a dependable Microsystems Technician at Cypress Creek. The Regional Superintendent for Region Center V concurred in her recommendation. OPS concurred in the recommendation because it considered Mr. Li’s conduct to violate the AFSCME Contract and the School Board’s rules regarding Responsibilities and Duties, Code of Ethics, and Absences and Leaves. As to the unauthorized absences, Mr. Li’s deposition was taken by the School Board, and, during the deposition, he presented documents purporting to excuse some of the unauthorized absences. Further, at hearing, he presented additional such documents. Mr. Li testified that his personnel file should have contained all of the documents that he had presented; that he requested his physicians to provide the documents to Cypress Creek; that his physicians informed him that they were not required to indicate the specific nature of the illness for which they were treating him but required only to indicate that they were treating him on the dates indicated; and that his physicians forwarded the documents to Cypress Creek, some by fax. The School Board agreed to accept the documents as demonstrating that the absences indicated on the documents should be excused and changed to authorized absences. Even with the changing of the documented absences from unauthorized to authorized, the School Board asserts that the total number of unauthorized absences is 74. The 74 unauthorized absences include 12 days that Mr. Li was in jail and appeared in court, which were brought to the attention of the School Board by Mr. Li. No dispute exists that Mr. Li had exhausted all of his sick and personal leave. Mr. Li does not contest that the total number of unauthorized absences is 74. The evidence demonstrates that Mr. Li had 74 unauthorized absences. However, at hearing, Mr. Li testified that he wants the reason known as to the medical reason for his absence from the worksite. He testified that the reason for the unauthorized absences, excluding the aforementioned 12 days, was that he was suffering from depression, which caused his immune system to weaken, which lead to other health problems, such as being susceptible to viruses and infections. Also, he testified that he was being seen by a psychiatrist. Furthermore, Mr. Li testified that, prior to his arrest, he was participating in the Employee Assistance Program, hereinafter EAP, due to his depression, and was being seen by a counselor; and that he continued in the EAP until his termination. Additionally, Mr. Li testified that he failed to complete the Request for Leave of Absence Without Pay form provided by Dr. Fox on January 19, 2007, because he was unsure as what might happen if he completed it since Dr. Fox had indicated to him that she did not believe that he was ill. Moreover, Mr. Li testified that he was not attempting to dispute the 74 unauthorized absences and to have the unauthorized absences changed to authorized absences, but that he was attempting to demonstrate that he was not a “bad person,” that he was not faking his illness, that the absences were not on purpose, and that he was not insubordinate. The undersigned finds Mr. Li’s testimony to be credible. The undersigned provided Mr. Li with the opportunity to continue the hearing in order for him to have his psychiatrist and counselor testify in this matter; however, Mr. Li decided not to take advantage of a continuance but to proceed with the hearing without the psychiatrist and counselor as witnesses. Even though the undersigned finds Mr. Li’s testimony regarding his depression credible, in particular, as to the effect of his depression on his physical well-being, and even though depression undoubtedly affects one’s mental well- being, including one’s thinking process, no testimony was presented as to what extent Mr. Li’s depression affected his thinking process. The evidence demonstrates that Mr. Li was physically ill during the absences, except for the 12 absences he was in jail and appeared in court. The evidence demonstrates that Mr. Li was not in regular attendance and on time at his worksite. As to the unauthorized absences, the evidence demonstrates that Mr. Li failed to provide documentation, regarding his illness, through the production of written medical notes from his treating physicians. The evidence demonstrates that Mr. Li failed to communicate his unauthorized absences to Principal Hayes or Dr. Fox and that he intentionally failed to communicate his unauthorized absences to them. The evidence fails to demonstrate that Mr. Li refused to request a leave of absence. The evidence demonstrates that he did not request a leave of absence because he was unsure as to whether such a request would benefit or harm him, especially when Dr. Fox informed him that she did not believe that he was ill, but at the same time, providing him with the request. An inference is drawn and a finding of fact is made that Mr. Li’s failure to request a leave of absence was reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending and dismissing Jorge Li from employment with it. DONE AND ENTERED this 15th day of January 2008, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2008. COPIES FURNISHED: Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Jorge Li 11458 Southwest 109th Road, Apt. X Miami, Florida 33176 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Did the Hendry County School Board (Board) have just cause to terminate Respondent from her employment as a paraprofessional teacher's aide?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent was employed by the HCSD as a paraprofessional teacher's aide at LMS. The employment relationship between the Board and Respondent is subject to the terms and conditions of the Collective Bargaining Agreement Article 8, Section 8.013, Collective Bargaining Agreement, provides that "when an employee has completed three (3) years of the past five (5) with satisfactory service with the Hendry County School Board . . . and has been appointed for a subsequent year, he [sic] will be eligible for continued employment status, which status will continue year to year unless the Board terminates the employee for just cause (Emphasis furnished). Respondent was first employed with the HCSD on August 18, 1986, and worked continuously through May 25, 1999, when she was terminated. Since Respondent achieved "continued employment status," she can only be terminated for "just cause." The Board terminated Respondent for "failure to perform assigned duties in a satisfactory manner" and "other sufficient cause" under School Board Policies and Procedures 218. There were no written evaluations of Respondent's performance accomplished during the first 9 years of Respondent's employment with the HCSD because the Board did not adopt its current policy until approximately 1996. However, there is no evidence that Respondent's work performance was unsatisfactory during the first 9 years of her employment with the HCSD. Respondent worked at LMS for each of those nine years of her employment with the HCSD and was routinely re-appointed for each ensuing year. The first 2 years of her employment, Respondent was assigned to work with students that were classified as "trainable mentally handicapped." Respondent had to assist these students in learning rudimentary skills such as brushing their teeth and changing their underwear. From the fall of 1988 until the spring of 1992, the equivalent of 4 school years, Respondent was assigned to the "Time Out Room." The assignment to the "Time-Out Room" was not punitive in nature, or the result of unsatisfactory work performance by Respondent. Disruptive students that caused a problem in the classroom were sent to the "Time-Out Room." The students went in the "Time-Out Room" for one period after which they usually would return to their regular class. Although Respondent was employed as a "Teacher's Aide" for exceptional education students with special needs she did not assist a teacher, but ran the "Time-Out Room" alone. After 4 years working in the "Time-Out Room," Respondent was assigned to Internal Suspension. The "Time-Out Room" was eliminated, and replaced with Internal Suspension. Internal Suspension was used as a form of discipline for students who violated school policy. Students were sent to Internal Suspension anywhere from 2 to 10 days. Internal Suspension was conducted in a double-wide trailer behind LMS. Respondent again was by herself in Internal Suspension and was not assisting a teacher. The first documentation of any performance deficiency by Respondent consists of a Procedure for Improvement form and a Special Non-Instructional Personnel Evaluation form, both dated January 22, 1996. The forms were prepared by James C. Allen, Principal of the LMS. The Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent achieved a "satisfactory" designation for 6 areas and a "Needs Improvement" in "Quality of Work" and "Work Attitude." The deficiencies specified in the Procedures for Improvement form are: "Harshness in speaking with staff and students, assisting students with academic work, unacceptable activities in classroom, needlepoint, police scanner." The Procedures for Improvement form provided that Respondent had the "95/96 school year" to improve, and that Mr. Allen would "Recommend dismissal" if the deficiencies were not improved. Respondent successfully improved her performance. On March 21, 1996, Mr. Allen wrote a letter to Respondent's union representative, with a copy to Respondent, stating that "I too am optimistic that improvement has occurred." On April 1, 1996, Mr. Allen wrote directly to Respondent expressing concern about "complaints/concerns" received about her conduct on a Beta Club trip to Washington, D.C., but stating, in pertinent part: These concerns cannot be overlooked, however, since we initiated procedures for improvement January 22, 1996, which dealt specifically with harshness in speaking with students/staff. Improvement has been noted. It must also be pointed out that Ms Dankanich (Beta Club sponsor) and some staff members felt that you did a good job in controlling your students and watching out for their safety and welfare. (Emphasis furnished). The March and April 1996 letters from Mr. Allen were included in Respondent's personnel file. Also included in the personnel file were letters from the Beta Club sponsor for the Washington, D.C. trip and a chaperone. These letters stated that Respondent spoke to students and adults and conducted herself in an appropriate manner throughout the trip. Respondent's annual "Overall Evaluation" for the 1995-1996 school year was "Satisfactory." Mr. Allen checked the box entitled "Reappoint based on employee's willingness to improve job dimensions not satisfactory." Respondent attained a "Satisfactory" score on 6 out of eight areas listed for job dimension with "Quality of Work" and Work Attitude" checked-off for "Needs Improvement." Respondent was reappointed and returned to LMS for the 1996-1997 school year. Respondent was assigned to assist with the "trainable mentally handicapped" students after having been on her own in the "Time-Out Room" and Internal Suspension for 8 years and working with Exceptional Student Education (ESE) students. This assignment required an adjustment for Respondent. On February 11, 1997, Allen presented Respondent with another Procedures for Improvement form and Special Non- Instructional Personnel Evaluation form. As in the preceding year, the Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent "Needs Improvement" in "Quality of Work" and "Work Attitude." The Procedures for Improvement form identified deficiencies as "failure to perform assigned duties in a satisfactory manner, harshness in speaking with students/staff; unacceptable activities in classroom," and afforded Respondent the 96\97 school year to improve or be recommended for dismissal. Respondent wrote on both forms that she did not agree with them. In April 1997, 12 professional colleagues of Respondent wrote letters of support. These letters were included in Respondent's personnel file. The letters vouch for Respondent's professionalism and many stated that Respondent never was observed to engage in improper conduct or exhibit inappropriate speech or tone of voice. Throughout the second semester of the 1996-1997 school year, Respondent worked 2 class periods as a teacher's aide for Erin Berg-Hayes. Ms. Berg-Hayes was a sixth grade ESE teacher. Ms. Berg-Hayes testified that Respondent's job performance during the 1996-1997 school year was satisfactory. Respondent did not receive annual evaluation for the 1996-1997 school year. Since Respondent was not told otherwise, Respondent assumed she had improved her performance to Mr. Allen's satisfaction. Respondent received a letter of appointment at the end of the 1996-1997 school year and was reappointed for the 1997-1998 school year. For the 1997-1998 school year, the sixth grade students at LMS were moved to the Sixth Grade Center (SGC). Jodi Bell assistant principal at LMS was assigned to administer the SGC. Mr. Allen remained as principal at the LMS which consisted of seventh and eighth grade students. Respondent worked as Erin Berg-Hayes' full-time aide for the 1997-1998 school year. Respondent and Ms. Berg-Hayes were assigned to the SGC. Ms. Berg-Hayes characterized Respondent's job performance during the 1997-1998 school year as "good." When Ms. Bell prepared Respondent's annual evaluation, Ms. Berg-Hayes advised Ms. Bell that she was "pleased" with Respondent's performance and "on the overall [Respondent's] performance was good and satisfactory." Ms. Bell prepared Respondent's 1997-1998 annual evaluation for the 1997-1998 school year. Ms. Bell checked off "satisfactory" in the 8 areas designated for assessment. There were no check marks in the "Needs Improvement" column. On the 1997-1998 annual evaluation, Ms. Bell checked the box for "Satisfactory" as Respondent's "Overall Evaluation," and also checked the box for "Reappoint for next year." In the section entitled "Comments by Evaluator," Ms. Bell wrote: "I have appreciated your willingness to go above what is expected and help wherever help is needed. Keep up the good work!" Respondent returned to the SGC as Ms. Berg-Hayes' Aide in the 1998-1999 school year. Ms. Berg-Hayes and Respondent worked together for the fall semester after which Respondent requested to be reassigned. Respondent attributed this to a personality clash with Ms. Berg-Hayes that started in July 1998. Ms. Berg-Hayes testified that Respondent's performance declined in the 1998-1999 school year. Cathy Lipford, teacher's aide at SGC, who worked together with Ms. Berg-Hayes and Respondent for one period during the entire fall semester in the 1998-1999 school year did not observe a problem with Respondent's work performance. This teachers' aide was aware of some tension between Respondent and Ms. Berg-Hayes. However, this aide testified that Respondent appeared to take the initiative, and assisted students, and the aide never observed Respondent speaking inappropriately to students. Ms. Berg-Hayes did not prepare any documentation of Respondent's alleged performance deficiencies during the fall semester of the 1998-1999 school year. Ms. Berg-Hayes was not consulted about Respondent's performance by Mr. Allen, the former principal of LMS or Mr. Cooper, the current principal of LMS at the time Respondent's performance was evaluated for the 1998-1999 school year, when it was decided to recommend dismissal of Respondent for failure to perform her assigned duties or other sufficient cause. During the spring semester of the 1998-1999 school year, Respondent was assigned as an aide to Dorothy Lomago, a varying exceptionalities teacher for seventh and eighth grade students. Respondent and Ms. Lomago worked together from January 1999 through May 1999. Ms. Lomago had been employed by the Board for 25 years. Prior to Respondent, Ms. Lomago only had had 2 other teaching assistants. Ms. Lomago considers compassion for children and initiative as the most important characteristics for a teacher's aide in special education. Ms. Lomago rated Respondent's performance in those areas as "ineffective." Ms. Lomago considered Respondent adequate in performing clerical tasks such as copying papers and grading papers. Ms. Lomago did not document Respondent's performance deficiencies. Ms. Lomago neither counseled nor corrected Respondent. Likewise, Ms. Lomago never brought to Respondent's attention the things she believed Respondent failed to do or did wrong. Ms. Lomago merely did what she was told to do by Mr. Cooper when he arrived at LMS in March 1999. On March 31, 1999, Respondent went to Mr. Allen's office for her 1998-1999 annual evaluation. R. Scott Cooper, assistant principal, Ms. Jodi Bell, assistant principal, Mr. Allen, and Ms. Davis, assistant principal were present in Mr. Allen's office upon Respondent's arrival. This meeting was terminated after Mr. Allen indicated there was a problem and asked Respondent if she wanted union representation. Respondent replied that she thought it would be wise. Before the meeting on March 31, 1999, Respondent was not aware that her job performance was considered deficient. Respondent had not been told of any deficiencies and had not received any counseling. In March/April 1999, Mr. Allen retired, and was replaced as principal of LMS by Mr. Cooper. Mr. Cooper arrived at LMS some time in the last 2 weeks of March 1999. Respondent and Mr. Cooper had had no professional contact before March 1999. Mr. Cooper met with Respondent on April 16, 1999, for Respondent's 1998-1999 annual evaluation. Mr. Cooper gave Respondent 4 separate Procedures for Improvement forms and an Annual Non-Instructional Personnel Evaluation form. This was Respondent's first notice of her specific performance deficiencies for the 1998-1999 school year. Mr. Cooper never conducted a formal observation of Respondent's job performance. Mr. Cooper based the annual evaluation predominantly on a review of the school board records, and on discussions with Mr. Allen, Ms. Bell, and Ms. Davis. The Procedures for Improvement forms specified the following deficiencies: "Work Attitude - able to successfully work with co-workers and students"; "Initiate Resourcefulness - ability to identify what needs to be done"; ""Dependability"; and "Quality of Work." The forms identified the following means of judging success in overcoming the foregoing deficiencies, respectively. "Supervisors will observe appropriate student/aide interactions in all circumstances"; "decreased necessity for teacher/supervisor to redirect Ms. Bennett's activities"; "Ms. Bennett will demonstrate the ability to effective [sic] facilitate school functions - adhere to work requirements"; and "Higher quality of work - decrease in errors." As a Statement of Assistance Offered, all of the forms provided: "Ms. Bennett may meet with Mr. Cooper weekly to obtain suggestions and assistance" Respondent was given until May 10, 1999, to improve her deficiencies. This was a period of 3 weeks or 15 school days. On Respondent's Annual Non-Instructional Personnel form, Mr. Cooper checked-off 4 out of 8 areas for "Needs Improvement" with "Satisfactory" checked for the remaining 4 areas. Mr. Allen checked "Unsatisfactory" for the "Overall Evaluation" and checked the box "Dismissal." Respondent noted her disagreement with the evaluation. On May 19, 1999, Mr. Cooper formally recommended dismissal of Respondent. Respondent received a Notice of Recommendation of Dismissal on that date. The Board approved Respondent's dismissal on May 25, 1999. During the 3 week period Respondent was given to improve her performance, neither Mr. Cooper nor any other administrator met with Respondent to advise her as to whether she was improving. There is no documentation whatsoever of Respondent's lack of improvement. During the 3 weeks Respondent was to improve her performance, she received repeated assurance from Ms. Lomago that they would be working together the following year. Ms. Lomago never advised Respondent that her performance continued to be unsatisfactory. Likewise, no one from the Board or any school administrator advised Respondent that she was not complying with the Procedures for Improvement or that her work continued to be unsatisfactory. Not hearing otherwise, Respondent considered her work to be satisfactory and did not meet with Mr. Cooper to obtain suggestions and assistance. The evidence does not establish that Respondent failed to perform her assigned duties in a satisfactory manner during the 1998-1999 school year or that the Board had just cause or any other sufficient cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board reinstate the employment of Annette Bennett-Edwards and provide for back pay and benefits retroactive to May 25, 1999. DONE AND ENTERED this 6th of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2000. COPIES FURNISHED: Edward A. Upthegrove Superintendent Hendry County School District Post Office Box 1980 LaBelle, Florida 33935-1980 Richard G. Groff, Esquire Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206 Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2989 Fort Myers, Florida 33902-2089
The Issue Whether Respondent, Barbara Aboushahba, committed the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent was employed by Petitioner as a kindergarten teacher pursuant to the terms of a professional services contract with Petitioner. Respondent is a member of the bargaining unit covered by the Collective Bargaining Agreement between the School Board of Orange County and Orange County Classroom Teachers Association. On June 25, 2003, Respondent received a written directive "to provide clarification or guidance" from the principal of the school where she taught that she "must avoid touching students except as is absolutely necessary to effect a reasonable and lawful purpose," and "to avoid even the appearance of verbal intimidation of students." On May 18, 2005, Respondent received a letter of reprimand for misconduct from her principal, because she "grabbed a student to get his attention." In the letter she was warned that "should there be another incident of a similar nature, discipline, up to and including dismissal, may be recommended." On May 31, 2005, Respondent received a letter of reprimand for violating "prior directives and [that you] again placed your hands on a student in a manner that could be interpreted as punitive." In addition, on that date Respondent received a directive that she avoid "touching a student in a manner that serves no educational or lawful purpose" and that she "must exercise care and professional judgment to avoid the appearance of the inappropriate use of physical intimidation." She was urged to "carefully consider when and how to respond to student behaviors." On May 26, 2006, Respondent was suspended without pay for five days as a result of "allegations that you used inappropriate force against a student" and that she "violated two previous directives regarding placing your hands on a student." On March 26, 2007, Respondent executed a Settlement Agreement to resolve an Administrative Complaint that had been filed by the Education Practices Commission in John L. Winn v. Barbara Aboushahba, Case No. 056-0009-V. The Settlement Agreement included a letter of reprimand and a $400.00 fine. On April 22, 2007, E.B., a ten-year-old student in Respondent's computer lab, had not completed his assignment. Respondent grasped E.B.'s hand and placed his hand on the computer keyboard and/or mouse, with her hand superimposed on his hand. This apparently upset E.B., who then pulled his shirt up and over his head. Respondent then pulled E.B.'s shirt down from his face and told him to "stop crying like a baby." E.B. was crying as a result of being upset by Respondent's actions. Respondent's touching of E.B. was minimal, but unnecessary and inappropriate. Her comment to him was callous and insensitive. Given the fact that this incident occurred less than one month after the above-referenced settlement with the Education Practices Commission, it is apparent that Respondent has not responded appropriately to the directives, reprimands, and guidance directed to similar inappropriate conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Barbara Aboushahba's, "gross insubordination" constitutes "just cause" under Section 1012.33, Florida Statutes, to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 7th day of March, 2008. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Lindsay N. Oyewale, Esquire deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP 332 North Magnolia Avenue Post Office Box 87 Orlando, Florida 32802-0087 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
