The Issue The issue in the case is whether the Pinellas County School Board may terminate the employment of Minnie L. Moody as a school bus driver.
Findings Of Fact Since 1996, Petitioner has employed Respondent, initially in the Food Services Department and then as a "Plant Operator." Beginning on January 3, 2001, Respondent began working for Petitioner in the Transportation Department as a school bus driver. Respondent is represented by a collective bargaining unit of the Service Employees International Union (SEIU) with whom Petitioner has entered into an agreement. Petitioner has adopted minimum qualifications an applicant must meet to become employed as a school bus driver. Although the job description has changed over a period of years, at all times material to this case Petitioner's minimum qualifications for employment as a school bus driver required as follows: "graduation from high school, possession of GED, or must obtain a GED within one year of being hired." A "GED" is a "general equivalency diploma" which can be earned by persons completing a prescribed course of study and passing a standard examination. The GED is generally regarded as the equivalent of a high school diploma. At the time Respondent began her employment as a school bus driver, she did not meet the minimum qualifications because she had not graduated from high school, did not possess a GED, and was not within one year of obtaining a GED. Pursuant to the collective bargaining agreement between Petitioner and SEIU, a person not meeting the minimum requirements for employment may work in a position as an "intern" for a period of one year with a salary reduction of ten percent below the applicable minimum. An employee seeking employment as an intern enters into an "internship agreement" with Petitioner. The purpose of the internship mechanism is apparently to permit the employee an opportunity to complete certain job-related requirements within the first year of the employment. In January 2001, Respondent executed a one-year internship agreement with Petitioner. The agreement provided as follows: Internships are limited to one (1) year, however; [sic] in some circumstances, the Director of Personnel Relations, or designee, may grant an extension on a case- by-case basis. In June 2001, Respondent entered into an adult education course to prepare for enrollment in a GED program. Towards the end of 2001, Respondent sought and received an internship extension of three months. Because Respondent was attending educational classes, the request was approved, and Respondent continued bus driving through the end of the 2001-02 school year. In the summer of 2002, Respondent was enrolled in basic adult education classes. In August 2002, Respondent sought an additional internship extension. The request was approved, and Respondent drove a school bus for the 2002-03 school year. In February 2004, Respondent was again enrolled in basic adult education classes, and sought an additional internship extension. The request was again approved, and Respondent drove a school bus for the remainder of the 2003-04 school year. Respondent suffered a family tragedy in April 2004 when her son passed away after a long illness. By letter dated July 30, 2004, Petitioner advised Respondent that her internship would expire on August 21, 2004, and that she needed to complete the GED requirement prior to that date. The letter also provided several options to pursue, including other employment prospects with Petitioner, if the GED was not obtained by the expiration of the agreement. The internship agreement between Petitioner and Respondent expired on August 21, 2004, without Respondent's obtaining the GED. By letter dated September 3, 2004, Petitioner advised Respondent that her employment was suspended for failing to meet the minimum qualifications of the position for which she was employed. Because Respondent's progress toward obtaining the GED has been minimal, Petitioner determined that the internship agreement would not again be extended. Petitioner has no written policy regarding how many times an internship agreement can be extended. The witness testifying at the hearing indicated that in determining whether to grant an internship extension to Respondent, Petitioner considered Respondent's progress towards completion of the academic goals as well as personal factors, including the family illness. Since June 2001, Respondent has worked towards, but has not yet obtained, the GED. In order to obtain a GED a student must complete basic education classes prior to entering into the GED course of study. Respondent has worked to improve her reading ability so as to provide skills sufficient to support entry into the GED program, but her reading skill level has shown no marked improvement, and Respondent has not yet begun the actual GED course of study. There is no evidence that Respondent has not performed her duties as a school bus driver in an acceptable manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as a school bus driver. DONE AND ENTERED this 11th day of March, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 11th day of March, 2005.
The Issue The issue is whether Petitioner, Bay County School Board (School Board), had just cause under Subsection 1012.67, Florida Statutes (2008), to terminate the employment of Respondent, Thomas Walker, because of his absence without leave.
Findings Of Fact Respondent is employed under a Professional Services Contract and teaches at Bozeman School in Bay County. Respondent, without approval or notice to the administrator or staff of Bozeman School, failed to appear for his teaching assignment in the latter part of November 2008. After repeated attempts to reach Respondent, Dr. Tommye Lou Richardson, Director of Human Resources for Bay District Schools, ascertained that Respondent was incarcerated in the Coffee County Jail in New Brockton, Alabama, for his failure to pay child support. Respondent's absence was willful and without approved leave.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Respondent and finding that he has forfeited any compensation since January 14, 2009, the date of his suspension without pay by the School Board. DONE AND ENTERED this 18th day of May, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2009. COPIES FURNISHED: Franklin R. Harrison, Esquire Harrison, Sale, McCloy Duncan & Jackson Post Office Drawer 1579 Panama City, Florida 32402-1579 J. E. Sawyer, Esquire 203 South Edward Street Enterprise, Alabama 36330 Thomas Walker 26802 Highway 69A, North Altha, Florida 32421 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 William V. Husfelt, Superintendent Bay County School Board 1311 Balboa Avenue Panama City, Florida 32401-2080
The Issue The issues in this case are: (1) whether Respondent violated Subsection 489.119(6)(b), Florida Statutes (2000); (2) whether Respondent violated Subsection 489.1425(1), Florida Statutes (2000); (3) whether Respondent violated Subsections 489.129(1)(f), (g), (i), (j), (m), and (q), Florida Statutes (2000); and (4) if so, what penalties should be imposed.
Findings Of Fact Respondent, Douglas V. Reynaert, was originally licensed as a certified general contractor in the State of Florida on June 10, 2000. For reasons not presented at this proceeding, the Board revoked Respondent's license as a general contractor on November 6, 2003. Consequently, Respondent is no longer able to engage in contracting in the State of Florida. Doug Reynaert and Sons, Inc., does not have a certificate of authority as a contractor qualified to do business in the State of Florida. The Dietzman Contract On or about March 27, 2000, three months prior to Petitioner's being issued a contractor's license, Doug Reynaert and Sons, Inc., entered into a construction contract with Homer Dietzman ("Dietzman contract"). The construction contract provided that Doug Reynaert and Sons, Inc., would construct a new house for Mr. Dietzman and his wife at 4515 - 6th Street West, Lehigh Acres, Florida, at a cost of $70,900. According to the contract, the construction of the house was to be completed by October 20, 2000. The Dietzman contract did not contain a contractor number either for Respondent or Doug Reynaert and Sons, Inc. As noted in paragraph 1, Respondent was not licensed as a contractor until June 2000, more than two months after the Dietzman contract was executed. Moreover, Doug Reynaert and Sons, Inc., was never licensed or certified as a contractor qualified to do business in Florida. The Dietzman contract did not contain the written statement explaining the consumers' rights under the Construction Industries Recovery Fund required in Subsection 489.1425(1), Florida Statutes (2000). According to the Dietzman contract, the house was to be completed by the end of October 2000. However, Doug Reynaert and Sons, Inc., did not begin construction on the house until September 2000; and by the end of October 2000, the company had only completed the slab. On or about February 15, 2001, Doug Reynaert and Sons, Inc., stopped all construction work on the Dietzman house, even though the project was not complete. After the construction work on the house stopped, Mr. Dietzman called the foreman for Doug Reynaert and Sons, Inc., who was overseeing the project, and asked why the workman were not doing any work on the house. In response to Mr. Dietzman's inquiry, Mr. Dietzman was told by the foreman for Doug Reynaert and Sons, Inc., that "We're all done." The Dietzman construction contract included a Specification Sheet that provided that the contractor, Douglas Reynaert and Sons, Inc., would provide all permits and county impact fees, drawings, builder's risk insurance, hurricane engineering fees, survey, lot clearing and fill allowance, city water or well package, and city sewer or septic system. The Specification Sheet also detailed the exterior and interior features to be included in the Dietzman house. Many of the features included in the Specification Sheet, which was a part of the construction contract, were not provided by the contractor. Features that the contractor was to provide, but which, in fact, were not put in the Dietzman house were the following: dead bolt locks on exterior doors; stain- resistant carpeting; no-wax vinyl in the kitchen and bathrooms; two ceiling fans; lighting allowance; landscape package; 18-cubic-foot refrigerator with ice maker; self-cleaning range; built-in dishwasher and microwave; 40-gallon quick recovery water heater and laundry tub; washer and dryer; Monet faucets; custom cabinets; full-length vanity mirrors; garbage disposal; window blinds or verticals; water treatment; softener/reverse osmosis/aerator; well; some soffit; Bahai sod; two toilets; some cathedral ceilings; 10.0 seer-rated air conditioner; and prefabricated shower. On or about February 19, 2001, about two weeks after Doug Reyaernt and Sons, Inc., stopped working on the Dietzman house, Mr. Dietzman prepared a list of the contract items that were incomplete and mailed the list to Respondent. Mr. Dietzman also attempted to personally contact Respondent about the company's failing to complete the house, but the office of Doug Reynaert and Sons, Inc., was closed. Eventually, in late February or early March 2001, after learning that Respondent was in the office of Doug Reynaert and Sons, Inc., Mr. Dietzman went there and talked to Respondent about the incomplete construction project. In response, Respondent stated that he would complete the project if Mr. Dietzman paid him $25,000.00 above the contract price. Mr. Dietzman refused to pay any additional money to Doug Reynaert and Sons, Inc., to complete the project and decided to finish the home himself. Based on the contract amount, only $6,450.00 was due upon completion of the project. However, based on the money that Mr. Dietzman had paid to Doug Reynaert and Sons, Inc., as of late February 2001, he was under no obligation to pay any additional money until the project was complete. During the course of the project, Mr. Dietzman paid Douglas Reynaert and Sons, Inc., $64,450.00 of the total contract amount of $70,600.00. Mr. Dietzman expended a total of $14,571.00 to complete and/or include all the items listed in the construction contract that were not performed and/or provided by Douglas Reynaert and Sons, Inc. This amount does not include costs associated with mileage to pick up supplies, recording fees paid to the clerk of the court, nor an unexplained fee paid to the Department. Of the total costs expended by Mr. Dietzman to complete the house, $8,121.00 was in excess of the contract price. Mr. Dietzman completed the house, and after it was completed, he lived there for three years before selling it. During the period between March 2, 2001, and April 30, 2001, five subcontractors filed separate liens of claims on the Dietzman property, which alleged unpaid amounts of $1,785.00; $650.00; $137.00; $5,998.00; and $619.15. According to the liens of claim, the subcontractors had last furnished labor services or materials in January, February, and March 2001. Mr. Dietzman believes that the claims of lien filed against his property expired without satisfaction. Notwithstanding Mr. Dietzman's subjective belief, no evidence was presented upon which to determine whether the claims of lien, in the first instance, were valid; and, if so, whether they were satisfied or whether they expired. However, when Mr. Dietzman sold the house in December 2003, the title to the house was clear. On March 20, 2001, Mr. Dietzman filed a Uniform Complaint Form with the Department arising from the contract with Doug Reynaert and Sons, Inc. The Uniform Complaint Form stated that Doug Reynaert and Sons, Inc., had abandoned the construction project and that Respondent had indicated that he would not finish the house unless the Dietzmans paid him another $25,000.00. The Department's costs related to the investigation and prosecution of the Dietzman contract, excluding costs associated with an attorney's time, are $287.37. The Gammie Contract On or about May 20, 2000, Leila Gammie and her sister, Karen Gammie, entered into a construction agreement with Doug Reynaert and Sons, Inc. ("Gammie contract"). Pursuant to the Gammie contract, Doug Reynaert and Sons, Inc., was to build a house for Karen and Leila Gammie at 1124 Southwest 15th Terrace, Cape Coral, Florida, for $92,420.00, and the buyers were required to pay the builder $3,000.00 when the agreement was signed. The Gammie contract was a one-page document and did not include the beginning and completion date for the project. Also, the contract did not include a general contractor's license number, certification number, or a written statement explaining the consumers' rights under the Construction Industries Recovery Fund. Leila Gammie paid a deposit of $6,000.00, by two checks of $3,000.00 each, to Doug Reynaert and Sons, Inc. The first payment was made on May 20, 2000, the day the Gammie contract was fully executed, and the second payment was made on June 3, 2000. The May 20 and June 3, 2000, checks were deposited in the account of Doug Reynaert and Sons, Inc., on May 26, 2000, and June 8, 2000, respectively. On July 15, 2000, the Gammie contract was amended by the parties to increase the price of building the house to $95,279.00 and to establish Reynaert and Sons, Inc.'s, responsibility for paying closing costs. Crossland Mortgage approved Leila and Karen Gammie for a construction loan to build the house. The construction loan agreement was executed in July 28, 2000, and required that construction be completed by February 1, 2001. Respondent signed the "Assent by Contractor" section of the construction loan agreement in which he certified that he was the general contractor for the borrowers and that in consideration of the lender making the mortgage loan, he agreed to be bound by the terms of the construction loan agreement. On July 28, 2000, Respondent executed a Crossland Mortgage Corporation's Contractor's Acknowledgment, in which he certified that Doug Reynaert and Sons, Inc., had entered into a construction contract with Leila and Karen Gammie "on May 20, 1999 [sic]" for the construction project described in the construction loan agreement. In the Contractor's Acknowledgment, Respondent also confirmed that the contract price was $95,279.00 and that Doug Reynaert and Sons, Inc., had already received $6,000.00, which had been applied toward the construction contract. Respondent's signature on the Contractor's Acknowledgement was notarized. On July 28, 2000, Leila and Karen Gammie executed an addendum to the construction loan in which they authorized the lender to make scheduled payments directly to Doug Reynaert and Sons, Inc. Leila Gammie, Karen Gammie, and Respondent, as representative for Doug Reynaert and Sons, Inc., are signatories on a loan document titled, "Construction Draw Guideline." That form was executed on July 28, 2000, and listed Doug Reynaert and Sons, Inc., as the contractor to whom payments would be made. Leila Gammie recorded a Notice of Commencement on August 3, 2000, in Lee County, Florida. After the Notice of Commencement was filed, Leila Gammie made regular visits to the lot on which her house was to be constructed. On each occasion, she observed that Doug Reynaert and Sons, Inc., had not started the construction project. She then contacted Respondent to inquire about when construction of her house would begin. In response, Respondent told Leila Gammie that he would not go forward with the project unless she gave him $10,000.00 above the contract price. She refused to give Respondent any more money and Doug Reynaert and Sons, Inc., never started the job. By letter dated March 15, 2001, the Harris Trust Bank of Montreal, the apparent successor or assignee of the lender, Crossland Mortgage, advised Leila Gammie and Karen Gammie that the project had not progressed as scheduled and that for "this reason and other findings, Doug Reynaert and Sons, Inc., is no longer an approved builder of Harris Trust/Bank of Montreal." Leila Gammie engaged another contractor who built the house, which is her present residence. On March 20, 2001, Leila and Karen Gammie filed a Uniform Complaint Form with the Department arising from the contract with Doug Reynaert and Sons, Inc. In the Uniform Complaint Form, Leila and Karen Gammie stated that Doug Reynaert and Sons, Inc., kept changing the original start date of the construction project from August 2000 until February 2001 and that Respondent ultimately told Leila Gammie that he would not begin the project unless she paid him an additional $10,000.00. The Department's costs related to the investigation and prosecution of the Gammie contract, excluding costs associated with an attorney's time, are $287.37. Alleged Contracts with James Pledger and Angela Barnes The 2002 Administrative Complaint assigned DOAH Case No. 04-1547PL alleged certain violations related to an alleged construction contract between James Pledger and Doug Reynaert and Sons, Inc. However, no evidence was presented regarding this alleged contract and the violations related thereto. The 2001 Administrative Complaint assigned DOAH Case No. 04-1546PL alleged certain violations related to an alleged construction contract between Doug Reynaert and Sons, Inc., and Angela Barnes. However, no evidence was presented regarding this alleged contract and the violations related thereto.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order adopting the foregoing Findings of Fact and Conclusions of Law and requiring Respondent, Douglas V. Reynaert, to pay restitution to Leila and Karen Gammie in the amount of $6,000.00 and to Homer Dietzman in the amount of $14,571.00. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 29th day of October, 2004. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Douglas V. Reynaert 4815 Hidden Harbour Boulevard Fort Myers, Florida 33919 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue to resolve is whether just cause exists to terminate Respondent’s employment as a classroom teacher.
Findings Of Fact Respondent is employed as a classroom teacher at Fort Myers High School in Lee County, Florida. Respondent taught the subjects of English and drama. Respondent was also the sponsor of the drama program at Fort Myers High School. The parties stipulated that Respondent is considered “instructional personnel” as defined by section 1012.40(2)(d), Florida Statutes, and that Respondent’s employment can be terminated for “just cause” under the collective bargaining agreement between the Teachers Association of Lee County and the School Board (Collective Bargaining Agreement). Florida Thespians is an Educational Theatre Association Affiliate, which provides students an opportunity to compete in a variety of drama competitions regionally and throughout the State of Florida. District 6 is a chapter of the Florida Thespians organization that is charged with organizing and hosting festivals and competitions for students at Florida Thespians member high schools in Charlotte, Collier, Lee, Manatee, and Sarasota Counties. Fort Myers High School is a member of the District 6 chapter of Florida Thespians. Respondent was the Chair of District 6. As the Chair of District 6, Respondent collected funds from District 6 students who participated in Florida Thespians events, and deposited those funds in the District 6 bank account. Respondent was a signatory on the District 6 bank account and had a debit card that allowed her to access funds deposited into the account. The District 6 bank account funds were to be used to pay for Florida Thespians related activities and events only. In May of 2019, the principal of Fort Myers High School removed Respondent from her position as a drama teacher for reasons unrelated to this case. Because she no longer taught drama at a District 6 high school, Respondent was ineligible to continue as Chair of District 6, and resigned from that position on May 31, 2019. After Respondent resigned, Janelle Laux, another high school drama teacher in Lee County, was elected as Chair of District 6. After Ms. Laux became Chair, she reviewed the District 6 bank account statements and identified certain expenditures linked to Respondent that appeared to be unrelated to Florida Thespian activities or events, including debit card charges for medical expenses and repairs to a motor vehicle owned by Respondent. The parties stipulated that while Respondent was District 6 Chair, she utilized the District 6 debit card to pay for personal medical expenses, including $25 on September 14, 2016; $158.34 on December 8, 2017; $132 on July 25, 2018; and $91.50 on October 30, 2018. Respondent argues in her PRO that she mistakenly used the District 6 debit card to pay these personal medical expenses. At her pre-determination conference, however, Respondent and her attorney admitted that Respondent used the District 6 debit card to pay for these personal medical expenses because her personal credit card would not work at the time and she did not have any cash on hand.1 Respondent, through her attorney, claims to have repaid the District 6 bank account for these personal medical expenses within 1 Under the Collective Bargaining Agreement, Respondent is entitled to a pre-determination conference to contest proposed discipline and is entitled to be represented by counsel. Respondent’s pre-determination conference was held on February 20, 2020. A transcript of Respondent’s pre-determination conference was admitted in evidence without objection as Petitioner’s Exhibit 6. The statements made by Respondent at her pre-determination conference are admissible as admissions. Likewise, the statements made by Respondent’s attorney at the pre-determination conference are admissible as admissions because the transcript shows that he was acting as Respondent’s agent at the time the statements were made. See Fla. R. Evid. 90.803(18)(a) and (d). a year, but did not identify the date funds were deposited into the District 6 bank account to cover these expenses, and otherwise offered no proof to substantiate this claim.2 But even if Respondent had proven that she reimbursed the District 6 bank account at a later date, she was not authorized to borrow money from the District 6 bank account to pay for personal medical expenses. The District 6 bank account funds were to be used for Florida Thespians activities or events only. The undersigned finds that Respondent knowingly used the District 6 debit card to pay for her personal medical expenses on four separate occasions, that the total of these payments is $406.84, and that the use of District 6 funds in this manner was solely for Respondent’s personal gain. The parties stipulated that while Respondent was District 6 Chair, she used the District 6 debit card to pay for repairs to her personal motor vehicle, including $284.06 on October 28, 2016; and $433.54 on December 1, 2017. Respondent did not reimburse the District 6 bank account for these personal expenses. Respondent argues in her PRO that the motor vehicle repair bills were legitimate District 6 expenses because she used the subject motor vehicle to travel to Florida Thespians related events and did not charge District 6 a mileage-based fee to do so. Respondent did not, however, testify at the final hearing, and did not prove that the subject vehicle was used to travel to Florida Thespians events or otherwise used to benefit District 6 in any way. But even if she had offered such evidence, the undersigned rejects the notion that the payment of Respondent’s motor vehicle repair bills is the functional equivalent of paying Respondent a mileage-based fee for travel. The undersigned finds that Respondent knowingly used the District 6 debit card to pay for repairs to her personal motor vehicle on two separate occasions, 2 The District 6 bank account statements admitted in this proceeding show that deposits were made at various intervals, but do not identify the source of the funds or the purpose for which they were deposited. that the total of these payments is $717.60, and that the use of District 6 funds in this manner was solely for Respondent’s personal gain. On September 26, 2019, Florida Thespians dissolved the District 6 chapter, citing the failure of District 6 to submit accurate financial documents for review, among other grounds. The dissolution of District 6 made it more difficult for District 6 students to participate in Florida Thespians events. The undersigned finds that the dissolution of District 6 was due in part to Respondent’s misappropriation of District 6 bank account funds. Petitioner alleged in its Petition that Respondent also misused District 6 bank account funds to pay for meals, gas, Amazon purchases, and a scholarship for her daughter, and that Respondent “conducted significant personal business and District 6 related business during contract hours using her District computer and email.” These allegations were not proven.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of misconduct in office and terminating her employment. DONE AND ENTERED this 9th day of October, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 9th day of October, 2020. COPIES FURNISHED: Brian Anthony Williams, Esquire Lee County School District 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) James Holloway, III, Esquire Lee County School District 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) Dr. Gregory Adkins, Superintendent Lee County School District 2855 Colonial Boulevard Fort Myers, FL 33966-1012 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent's contract of employment as a cafeteria worker should be terminated.
Findings Of Fact Dorothy Golden was employed as a lunchroom worker at Cottondale High School. She had been employed as a lunchroom worker since 1984. Ms. Golden's contract of employment was for one year and expired in the latter part of April, 1991. The contract was not renewed for the 1991-92 school year. During the 1990-91 school year, Dorothy Golden's immediate supervisor was Dorothy Barnes. Dorothy Barnes became the Cafeteria Manager at Cottondale High School after the retirement of Lela V. Gardner in approximately 1988. Although Ms. Golden inquired about assuming the manager's position at the County office, she never submitted an application because she decided she did not want the responsibility of the job. Ms. Golden did not resent the fact that Dorothy Barnes was hired as the Cafeteria Manager at the high school. Dorothy Barnes was supervised by the principal, Henry Ezell and the food service director, Ralph Harrison. Both Ms. Barnes' supervisors thought highly of Ms. Barnes because she had turned the cafeteria into a paying enterprise for the school. Over time a personality conflict gradually developed between Ms. Golden and Ms. Barnes because of Ms. Barnes' dictatorial style of management. In fact, Ms. Barnes could be so overbearing that at least two lunchroom employees who worked with Ms. Barnes testified that they would resign their jobs rather than work under her supervision again. 1/ Over the years Ms. Golden and Ms. Barnes had several minor conflicts. These conflicts basically stemmed from the personality conflict between the two women and Ms. Barnes' perception that Ms. Golden was unwilling to perform the duties Ms. Barnes assigned to her and/or that Ms. Golden was not prompt in the performance of such assigned tasks. Ms. Golden tried her best to get along with Dorothy Barnes. Ms. Golden felt that she could never do enough to satisfy Ms. Barnes. Apparently, until March, 1990, none of the alleged problems between Ms. Golden and Ms. Barnes were sufficient to justify a downgraded evaluation in any particular category or a failure to recommend her for reemployment for the following year. In fact, for each of the school years 1984-85 through 1989-90, Ms. Golden received satisfactory evaluations and had her annual contract of employment renewed. Given these facts and the supportive testimony of Ms. Golden's co- workers, the School Board has failed to demonstrate any cause for terminating Ms. Golden which could be attributed to the period of time prior to March 28, 1991. On March 28, 1991, Ms. Golden was sick with a temperature. Even though she was ill, Ms. Golden went into work with the intention of going to see the doctor during the day. She informed Ms. Barnes that she was sick and was going to see the doctor. However, the doctor could not see Ms. Golden on March 28. Ms. Golden therefore continued to work throughout the day. Near the end of the March 28 workday, Ms. Barnes instructed Ms. Golden to grind five pounds of cheddar cheese and five pounds of white cheese. The cheese was needed for the next day's meal. Because she felt so bad and had time the next day to grind the cheese, Ms. Golden asked Ms. Barnes if she could wait until the next day to grind the cheese. When Ms. Barnes did not tell her not to, she assumed she had permission to wait until the next day. The next day, March 29, 1991, a Friday, Ms. Golden attempted to grind the cheese. Ms. Barnes had revised her instruction to require that Ms. Golden grind 45 pounds of cheese even though only 10 pounds were needed for that day's meal. Clearly, the remaining 35 pounds of cheese would have to be stored in some fashion. The usual practice was to store cheese in bulk in one large freezer bag. The practice did not include using several small used bread bags in lieu of one large freezer bag. Ms. Golden attributed the practice of using one large freezer bag to prior instructions from the health inspectors. The cheddar cheese ground properly. However, Ms. Golden had difficulty grinding the white cheese because it was not frozen solid and gummed up in the grinder. Ms. Rouhlac, a co-worker of Ms. Golden, observed Ms. Golden's difficulties in grinding the white cheese and told her to get Ms. Barnes to help her. Ms. Golden said that she would rather clean the machine and try it one more time before seeking assistance from Ms. Barnes. The white cheese continued to gum up the grinder. In order to come up with enough cheese for that day's meal, Ms. Golden used some other cheese which was already shredded along with the amount that she had ground. Ms. Golden placed the remaining cheese in a large bag in the refrigerator to return to later. Ms. Golden continued to perform other tasks for the remainder of the day until Ms. Barnes requested her to place the cheese in smaller bread bags. Ms. Barnes' request was made ten minutes before quitting time. Ms. Golden searched for smaller bags to put the cheese in but could not find any. Ms. Golden asked Ms. Rouhlac about bags in her area. Ms. Rouhlac looked for some small bags but could not find any. Consequently, Ms. Golden placed the cheese back in the refrigerator until she could get some bags. Ms. Golden suspected that Ms. Barnes was responsible for the bags disappearing based on Ms. Barnes' previous practice of playing little tricks on employees by hiding things. The search for the small bags took up the remainder of the work day. Ms. Golden was not allowed to stay after normal working hours and she left for the weekend. On Monday, April 1, 1991, Ms. Golden was washing lettuce in prepartion for making a green salad. Ms. Golden was using one half of a double sink to wash the lettuce. The other half of the sink had dirty utensils soaking in it. Ms. Golden had previously been instructed that the side of the sink with the utensils in it was for the cook and not to use that side of the sink. Ms. Barnes told Ms. Golden to wash the sink. Ms. Barnes intended the word "sink" to refer to both sides of the double sink being used by Ms. Golden. Ms. Golden understood the word "sink" to mean one side of the double sink. She washed the side of the sink she was working in. A short time later, Ms. Barnes again told Ms. Golden to wash the sink. Ms. Golden told her that she had already washed her sink. After a brief discussion on this issue between the two women and Ms. Barnes made her intent clear, Ms. Golden washed both sides of the sink in accordance with Ms. Barnes' instructions. Later that evening, Mrs. Golden attended a meeting of food service workers at which there was a discussion about how to get along with someone at work who was difficult to deal with. The advice given was to simply "turn the other cheek" and be silent so as not to exacerbate the problem. Mrs. Golden decided to take this approach with Mrs. Barnes in the hope that it would avoid further instances of Mrs. Barnes "jumping down her throat" for no apparent reason. On Tuesday, April 2, 1991, Ms. Golden, following the advice she had received the night before, did not reply verbally to Ms. Barnes when she was greeted the next morning. She simply went about her work in silence, avoiding Ms. Barnes where possible to avoid a controversy. During this time, Ms. Barnes instructed Ms. Golden to refill the milk shake machine. Having performed this task many times before, Ms. Golden knew exactly what to do and simply verified which day of the week it was to determine which flavor of milk shake mix to put in the machine. To avoid conflict with Ms. Barnes, Ms. Golden directed these questions to her fellow employees. Ms. Barnes, angry over her perceived rebuke when she greeted Ms. Golden, chastised Ms. Golden for her inquiry. The evidence indicates that Ms. Barnes apparently misheard some of Ms. Golden's inquiry. 2/ On Wednesday, April 3, 1991, Ms. Golden came to work and began preparing a salad. Ms. Barnes came in and angrily slammed the cheese from the cooler down in front of her and shouted "Stop what you are doing right now and bag this cheese." Ms. Golden had inadvertently forgotten about the cheese in the refrigerator. She said she would bag the cheese if there were some small bags available. When she went to look for bags, there were plenty of small bags in the place where such bags are normally kept, but which was empty the previous Friday. When Ms Golden discovered the return of the small bags she said to the other employees present "These bags must have walked back." Following the discovery of the small bags and within a few seconds of Ms. Barnes slamming down the cheese, Ms. Christmas, a co-worker of Ms. Golden, came over and helped Ms. Golden bag the cheese in small bags. During the bagging of the cheese a shouting match erupted between Ms. Golden and Ms. Barnes. When they were finished bagging the cheese, Ms. Golden went to Ms. Barnes' office to ask her whether she wanted the cheese in the cooler or in the freezer. The shouting match continued. Ms. Barnes was on the phone talking to someone whom Mrs. Golden assumed was Ralph Harrison because Mrs. Barnes was always threatening to call Ralph Harrison out to the school as a means of intimidating Ms. Golden. Later, Ms. Golden realized from comments made by Ms. Barnes that it was the Principal, Henry Ezell, to whom she was talking. During the conversation, Ms. Golden asked Ms. Barnes to permit her to tell her side of the story when she was through. Ms. Barnes became very angry and stated that "Here she is again telling me what to do," and threw the phone down, bouncing it off the floor. Later, both Ms. Barnes and Ms. Golden met separately with Mr. Ezell and Mr. Harrison. During Ms. Barnes' meeting, Ms. Barnes stated essentially that she had had enough of Ms. Golden and that something must be done about Ms. Golden or she would not continue to work in the cafeteria. During Ms. Golden's meeting, Ms. Golden answered the questions asked of her. When she was asked whether she would comply with Ms. Barnes' instructions Ms. Golden stated that she was doing everything she could to comply with Mrs. Barnes' directives. She told them that she felt that nothing she could do seemed to satisfy Ms. Barnes, but that she would continue to try and get along with Mrs. Barnes and to do her job as she had been. Mr. Ezell and Mr. Harrison interpreted Ms. Golden's response to mean that she did not believe there was a problem between her and Ms. Barnes and that she would not follow Ms. Barnes' directives. Ms. Golden meant just the opposite by her statements. Based on the above interpretation and to satisfy Ms. Barnes, the entire blame for the perceived problems Ms. Barnes was having with Ms. Golden was placed on Ms. Golden. Ms. Golden was told, by Mr. Harrison, that either the manager had to go or she had to go. Later, Ms. Golden was informed that she was suspended with pay pending a recommendation of dismissal. Written documentation to that effect followed. The evidence in this case, demonstrated that Ms. Barnes and Ms. Golden were not very good at communicating with each other. The difficulty in communication resulted not so much from disliking each other as from an imbedded inability in each women's personality and social skills to relate their meaning to each other. Ms. Barnes' failure was her overquick perception that she was not being obeyed, lack of pateince with Ms. Golden because of her perceptions about her and her lack of flexibility in manner of performance for a given task. Ms. Golden's failure was that she was somewhat slow in understanding and lacked flexibility in performing her functions because of her slowness. The evidence relating to the specific incidents outlined above clearly demonstrates that there was no failure on the part of Ms. Golden to perform her functions in the cafeteria. In each instance, there was never a refusal to comply with Ms. Barnes' directives but simply a failure to understand the directive or a disagreement about what was necessary to accomplish the task. All tasks were eventually performed once a meeting of the minds was achieved. None of the incidents outlined above warrant the early termination of Ms. Golden since she essentialy successfully and satisfactorily performed her job as a lunchroom worker during the time period from March 28, 1991-April 3, 1991.
Recommendation It is accordingly, recommended that the School Board of Jackson County enter a Final Order awarding Respondent backpay for the period of time from her suspension until the School Board's action not to renew her contract. RECOMMENDED this 28th day of February, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1992.
The Issue The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass." In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with the names of the disruptive students or assisted Respondent in obtaining their names. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours. Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about." Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways." Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass." Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy did not provoke Respondent prior to his quoted statement in the preceding paragraph. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot." Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of School Bus Operator Ava White-Smith (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a school bus operator employed by the Petitioner. School bus operators employed by the Petitioner are responsible for safely operating the vehicle and for maintaining order among the students being transported. On buses that are equipped with seat belts, students are to use the seat belts. Whether or not seat belts are present, students are to remain properly seated, facing forward, while the bus is in motion. The Petitioner prohibits consumption of all beverages on school buses. Part of the rationale for prohibiting beverage consumption by passengers on the bus is the inherent difficulty in identifying the type of beverage being consumed. At all times material to this case, the Respondent operated school bus number 611. Her school bus was equipped with seat belts. A large rearward-facing mirror located above the driver's position allowed the driver to observe the passengers. The bus was also equipped with an audio/video system that recorded the passengers being transported. On the morning of February 19, 2010, the Respondent transported students to the Manatee School for the Arts (MSA) and to the "Just for Girls" (JFG) School. The audio/video system recorded the behavior of the passengers on the Respondent's bus on February 19, 2010. Copies of the video recordings were admitted as exhibits and were played during the hearing and narrated by a witness for the Petitioner. The recordings were also reviewed subsequently by the Administrative Law Judge. On February 19, 2010, the Respondent first drove the bus to the MSA, where she discharged the majority of students being transported that day, and then she drove the remaining students to the JFG School. As demonstrated by the video recordings, many of the students on the Respondent's bus were not properly seated and were not wearing the seat belts. The Respondent made no attempt to require the passengers to sit in a forward-facing manner or to require that seat belts be used. During the time that all the students were present on the bus, the JFG School students sat in the rear of the vehicle. Some of the JFG School students surreptitiously consumed an unknown beverage from a container that was passed around by the students involved in the incident. As the bus trip continued and the beverage was consumed, the participating students became very loud and restless. The Respondent was aware that some students were consuming a beverage on the bus, but she made no attempt to intervene in the activity. Given the prohibition on consumption of beverages, and the demeanor of the students involved, the Respondent should have interceded in the situation. When the Respondent arrived at the MSA, the students attending that facility exited the vehicle, and the JFG School students moved to the front of the bus. Before the JFG School students were seated, the Respondent started to drive the bus away from the MSA. None of the JFG School students appeared to use the seat belts after moving. While being transported to the JFG School, some students sang or spoke loudly and inappropriately, one student stood and danced to a lewd song on her music player, two students were excessively affectionate, and a general "party" mood prevailed. It is inconceivable that the Respondent was unaware of the JFG School students' behavior after the MSA students were discharged from the vehicle. The JFG School students were at the front of the bus, in the immediate proximity of the Respondent, who on occasion conversed with and about the students. The Respondent made no significant attempt to require the students to be seated properly or to correct their behavior. Shortly after the bus arrived at the JFG school, school administrators discovered that some of the JFG School students who had been transported by the Respondent were intoxicated. One of the students had a half-emptied, half- gallon bottle of gin in her possession. The JFG School officials took disciplinary action against the students involved in the incident. None of the students being transported by the Respondent to the JFG School had ever been the subject of a disciplinary report filed by the Respondent. At the hearing, the Respondent testified that she paid little attention to the behavior of the students on her bus, because, in her experience, their behavior was not unusual. However, rather than excuse the Respondent's failure to properly supervise her bus passengers on February 19, 2010, the testimony suggests that the Respondent failed on a repeated basis to enforce rules clearly related to passenger safety. On February 23, 2010, the Respondent was driving the bus westbound on 30th Avenue in Manatee County, Florida, and arrived at an intersection with U.S. Highway 301, a well- traveled four-lane highway. There were no students on the bus. Presumably because the Respondent initially intended to make a left turn at the signaled intersection, she was in a left turn lane. The Respondent realized that the traffic signals at the intersection were not functioning. As required, she contacted the Petitioner's transportation dispatcher to advise authorities of the situation and to request permission to make a right turn; however, she failed to inform the dispatcher that she was located in the left turn lane or that a right turn would require her to take the bus across other traffic lanes. The dispatcher approved the Respondent's request, and she made the turn without incident. The Petitioner subsequently received a complaint from a "concerned citizen" about the Respondent's turn across the traffic lanes. There was no evidence presented at the hearing that there was injury or damage to any person or property by the turn. There was no credible evidence that the traffic present at the intersection at the time the Respondent completed the turn precluded the Respondent from making the right turn in a safe manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Ava White- Smith. DONE AND ENTERED this 26th day of August, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 26th day of August, 2010. COPIES FURNISHED: Scott A. Martin, EsquireManatee County School BoardPost Office Box 9069Bradenton, Florida 34206-9069Norman Adam Tebrugge, EsquireTebrugge Legal520 12th Street, West, Suite 203Bradenton, Florida 34205 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Tim McGonegal, Superintendent Manatee County School Board 215 Manatee Avenue, West Bradenton, Florida 34206-9069
The Issue The issues in this case are whether Respondent, Peggy Addison ("Addison"), failed to correct certain performance deficiencies identified by Petitioner, Collier County School Board (the "School Board"); and whether such failure constitutes just cause for terminating Addison's professional service contract.
Findings Of Fact The School Board is the governing body of the Collier County Public School system. The School Board is responsible for hiring, monitoring, supervising and firing all employees of the school system, including all teachers. Addison has been a school teacher since her graduation from college in 1969, with the exception of a few years taken off to raise her family. She has been a teacher within the Collier County School System for 25 years. For 15 years, and for all times relevant to this matter, Addison was a teacher at the School. Addison taught various grades at the School, but primarily first and second grades. She taught first grade at the School for two years prior to the 2009-2010 school year. During the summer of 2008, the School was assigned a new principal, Nicole Stocking. The assignment was Stocking's first as the principal of a school. Previously, Stocking had experience as a school teacher and as an assistant principal. At the time of her appointment, the School had not been making progress for a number of years and was admittedly a "problem" school, meeting only about 60 percent of its goals. In education parlance, the school was not meeting its Annual Yearly Progress (AYP) goals. Stocking was directed by the superintendent of schools to take all measures necessary to make improvements at the School. Stocking immediately took aggressive actions to ensure improvement at the School. She let all staff and administrators know that there would be a concerted focus placed on reading programs. She advised all teachers that she expected drastic improvements at the School and expected each teacher to work hard toward that end. Stocking established a leadership team made up of her, Vice-Principal Edwards, Reading Coach Bryant, and Reading Coach/Learning Team Coordinator Campbell. The leadership team would conduct weekly walk-throughs of all classrooms and then meet to discuss any problems they had identified. The intent of the walk-throughs was to identify all problem areas needing attention in order to meet the AYP goals for that school year.1 Stocking was described as "all business" and "not a people person" by her subordinates. It is obvious that Stocking took a fairly hard-line approach to her supervisory responsibilities. At one point, ten classroom teachers filed a group grievance against Stocking due to the harshness of her management style. The grievance was deemed unfounded, but the fact that it was filed is some indication of how teachers perceived their new principal. Some of the teachers who joined in the grievance testified at final hearing, and it is clear there was a broad view of Stocking as a difficult person to work for. That is not to say that Stocking did anything improper, only that her actions could be perceived more harshly by some than by others. The 2008-2009 school year started with some significant changes. For example: A new literacy program (MacMillan) with a text called "Treasures" was implemented district-wide; focus was placed on "Guided Reading"--a process whereby students were divided into small groups where their reading skills and progress could be monitored closely; and teachers were told to expect "walk-throughs" by the principal and other administrators. It was clear that the new administration would be pressing everyone to make vast improvements at the School. Improvement in student reading was expected to be the catalyst for overall school improvements for the 2008-2009 school year. Specifically, the School was going to be focused on the Guided Reading process. Teachers would divide students into groups according to their needs, and then meet with each of the groups independently while other students busied themselves with other tasks. During the groups, the teacher would evaluate one student individually by doing a "running record," that is, a short checklist to see how many words the student read correctly from an assigned text. By doing running records for one student in each group and four groups per day, the teacher could assess every child every week. The running records could then be used to help prepare lesson plans for the upcoming weeks. The evidence at final hearing was somewhat contradictory as to how long it took to do a running record, but the consensus seemed to be that it takes about two to three minutes per student.2 During the 2008-2009 school year, Addison was a first-grade teacher. Addison had taught other grades during her career, but preferred and enjoyed first and second grades the most. She had developed a feel for first-grade curriculum and felt most comfortable in that setting. The first-grade team that year consisted of Arcand, the team leader; Laing; Chamness; Tyler; and Addison. Each of the first-grade classes had a mix of students, including some English language learners ("ELL"), i.e., those for whom English was a second language, and exceptional student education ("ESE") students, those with learning difficulties. Addison's class had some ELL and ESE students, but the overall makeup was not significantly different from the other first-grade classes. Almost immediately upon commencement of the 2008-2009 school year, Stocking began to perceive shortcomings in Addison's teaching skills. Some of the perceptions were based on Stocking's personal observation of Addison's classroom; some were based on reports from her leadership team. Stocking was concerned that Addison's students were not sufficiently engaged in some classroom activities. She felt that Addison was not appropriately implementing the Guided Reading program, and she had some concerns about safety issues for Addison's children. Stocking began to correspond with the first-grade team leader (Arcand) concerning Addison's teaching abilities. Arcand provided Stocking with somewhat negative information gleaned from her own observation of Addison. At the same time, first-grade team members Laing and Creighton expressed positive feelings about Addison's abilities. Stocking developed the following specific concerns about Addison's teaching skills: Classroom management--All of the children were not actively engaged in the classroom work at times; some children seemed not to know what their assignment was about. Group reading--Not all children were reading at their appropriate level, i.e., Addison had rated them at too high or low a level. One child appeared to Stocking to be struggling despite assurance from Addison that the child could read well. Some children were not being properly supervised or monitored during the transition from lunch back to the classroom. Addison had some difficulties with the new MacMillan reading program, but she continued to employ it as directed. Some of her peers attempted to guide Addison and provide instruction, but Addison continued to struggle. To her credit, as expressed by Stocking, Addison sought help from her co-workers to master the program. Despite Addison's best efforts, Stocking did not feel that Addison's students were being properly rated and assessed by way of running records. Addison, on the other hand, felt comfortable with her teaching. There were instances where Addison appeared not to be properly monitoring her students on their way from the lunch room back to the classroom. However, the first graders all transitioned from lunch to class at about the same time, and all first-grade teachers were involved in the transfer process. While it may be true that another teacher saw one of Addison's students misbehaving or going somewhere they were not supposed to go during this time, that fact does not necessarily indicate a failing on Addison's part. She may have been helping or guiding another teacher's student at the same time. There is no evidence, however, that Addison ignored her responsibilities, vis-à-vis, her students. As for students not being fully engaged during instruction, that determination cannot be made upon the evidence presented. While there were apparently children not actively engaged in the lesson being presented while Stocking or someone observed the classroom, Addison admits that first graders are not always on task. She provided several reasons that some of the children might have been unfocused on any given day. The fact that some child may have been disengaged on a particular day is not sufficient to make a finding that such behavior was rampant or a problem. During the second half of the 2008-2009 school year, Addison received numerous written disciplinary-type reports from Stocking, including: an "Observation" memorandum dated January 21, 2009, wherein Assistant Principal Edwards criticized Addison's teaching; a "Conference Summary" memorandum dated January 26, 2009, concerning Addison's interaction with a student who was out of control; a memorandum dated January 28, 2009, moving Addison to "Developing" status in five Educator Accomplished Practices (EAPs); a Warning of Unsatisfactory Performance memorandum dated February 5, 2009, in which Stocking chastised Addison for turning in lesson plans a day later than they were due; a memorandum warning about being placed on Developing status dated March 5, 2009; a letter of reprimand dated March 12, 2009, relating to Addison being absent without proper notification; another letter of reprimand one week later saying Addison failed to turn in lesson plans after an illness; another letter of reprimand dated April 3, 2009, addressing Addison's Guided Reading groups; a memorandum concerning an adverse classroom incident dated April 16, 2009; a letter of reprimand dated May 1, 2009, regarding gifts of water pistols Addison had given to two students at the end of the year; and a letter of discipline, with a one-day suspension, dated May 6, 2009. Addison had never received a letter of discipline prior to the 2008-2009 school year, but in that year she received them almost weekly during the second part of the school year. At the end of the 2008-2009 school year, Addison received an annual evaluation in accordance with School Board policies. The evaluation addressed the 12 areas of performance which form the basis of each teacher's assessment. Addison was placed in the "Developing" category for four of those areas. The Developing category indicates that the teacher has not sufficiently mastered the performance required in that particular area of teaching. By School Board policy, a teacher placed in the Developing category for three or more areas of performance is automatically placed on Strand III status. Addison was placed on Strand III commencing with the start of the 2009-2010 school year.3 Strand III is a probationary category under the School Board's Collier Teacher Assessment System ("CTAS") and is applicable to teachers with a Professional Service Contract. Strand III is covered under Article 5 of the Collective Bargaining Agreement between the School Board and Collier County Education Association. A teacher placed on Strand III has 90 days to demonstrate improvement in the Developing areas of performance in order to return to Strand II. Prior to being placed on Strand III for the 2009-2010 school year, Addison had never been placed on Strand III before. Her past five annual evaluations were as follows: 2007-2008--All twelve areas were at Professional. The evaluation was done by Ms. Grieco, whose position was not disclosed in the evidence. 2006-2007--Eleven areas were at Professional; one was at Developing. The evaluation was done by Ms. Psenicka, an assistant principal. 2005-2006--Ten areas were at Professional; two were at Developing. The evaluation was done by Assistant Principal Manley. 2004-2005--Seven of 12 areas were deemed Professional; five were deemed Accomplished. Principal Ferguson did the evaluation. 2003-2004--Seven of 12 areas were deemed Professional (the highest level of proficiency); five were deemed Accomplished (meaning that the teacher was not deficient in that area). The evaluation was done by Principal Ferguson. The Strand III process is quite involved. It requires the creation of a team of individuals whose purpose is to help guide the teacher toward improvement in the deficient areas. Stocking actually put three teachers on Strand III at the same time that Addison was designated, although she had never placed a teacher on Strand III before and was not experienced in administering the program. Knowing that the process was very time-consuming, Stocking decided to transfer the other two teachers to other schools, rather than try to run three Strand III processes at once. Each of the other teachers was removed from Strand III once they reached their new schools. Neither of those teachers had received as many disciplinary notices from Stocking as Addison had received, but Stocking testified that she saw the most potential for improvement in Addison versus the other two. There is some incongruity in that statement, but, nonetheless, it is a fact. The Strand III team for Addison was made up of a school administrator (Stocking), an administrative support person (Terry), Addison, and a person selected by Addison (Creighton). This team then developed a Professional Assistance Plan (the "Plan") which set forth the areas of performance that needed to be addressed and general goals to be accomplished. Addison's Plan contained four areas of concern corresponding with the four Developing areas in her 2008-2009 annual evaluation. However, six additional areas were added to the Plan, because Stocking said they "needed some attention." No authority for adding additional areas was provided by Stocking other than that the human resources department told her it was allowable. As a result of the added areas of concern, the Plan contained ten EAPs to be addressed by Addison and the team. Within each EAP, there were a number of "Indicators" which more specifically addressed a component within the general EAP. By way of example, the first EAP was "Assessment" with nine Indicators such as: diagnose the entry level and skill of students using diagnostic tests, observations, and student records; assess the instructional level of exceptional students; and, correctly administer required grade level and district assessments in identified assessment windows. The EAPs would be deemed to have been "observed" if Addison made significant progress on the individual Indicators. While 117 Indicators are a lot, many of them overlap and addressing one Indicator may also address several others at the same time. Nonetheless, when written in a Plan, that many EAPs and Indicators could appear quite daunting. At about the same time Addison was notified that she was being placed on Strand III, Stocking decided to move Addison from teaching first grade to a fifth-grade class. Addison had never taught fifth grade, although her certification was for grades one through five. Addison was opposed to the move, because she was more comfortable with first grade, and during the Strand process, she knew that more would be expected of her. She did not feel that a move to fifth grade would be the best scenario for dealing with Strand III. Stocking denied her request to remain in first grade and also denied Addison's request to be transferred to another school. School-to-school transfers are allowed whenever there are openings available at the target school, but it appears no openings were available. Once the new school year commenced, Addison, now in a new teaching environment with fifth grade, had 90 calendar days under the Plan to show improvement in the areas of concern. The Plan is dated August 24, 2009, and contains the following time line: Commence on August 24, 2009 (Date of formal notice to Addison); September 4, 2009 (Day 10)--Assign assistance team; September 14, 2009 (Day 15)--Hold professional assistance plan meeting; September 21, 2009 (Day 22)--Write professional assistance plan; September 22 through November 24, 2009--Plan, implement and collect data; November 24, 2009 (Day 92)--Assessment; December 16, 2009--Written recommendation from lead administrator to superintendent; January 15, 2010--Written recommendation from superintendent to Addison; If termination was recommended; then February 2, 2010--Written request for hearing. The amount of time from when the notice was given to Addison until the assessment was done was 92 calendar days, which is consistent with the times set forth by CTAS. While the schedule complied with CTAS guidelines, Addison obviously did not have 90 days to address the ten EAPs and 117 indicators. Nonetheless, the Strand III process was correctly implemented from a timeframe perspective. In order to effectuate the Plan, the team was to meet at least weekly to review Addison's progress, re-focus her efforts, and establish goals for the coming week. The weekly meetings were generally held at 7:40 a.m., 30 minutes prior to the start of class on Monday mornings. The meetings would sometime run a little long, and Addison would arrive late to her class. In such instances, she was expected to use her teaching skills to catch up with the timed lesson plans. All teachers were expected to teach in accordance with their lesson plans so that at any given time, anyone coming into their classroom would know exactly what lesson was being taught. Strict compliance with the lesson plan schedule was expected from all teachers. There were documented instances of Addison not teaching lessons in strict accordance with the lesson plan schedule. However, there were extenuating circumstances involved. For example, when the weekly team meeting lasted too long, it would adversely affect Addison's teaching schedule. At other times, Addison would teach one course to another teacher's students and vice-versa. As a result, the teachers may not be teaching in accordance with the lesson plan schedule. There was insufficient evidence to find that Addison was in serious violation of the lesson plan schedule requirements. The weekly team meetings were codified in minutes taken by Vice-Principal Monoki. Sometimes two people took minutes of the meetings in an effort to assure correctness. The minutes were ostensibly meant to be a general overview of what the meeting was about, but, in actuality, they were quite detailed concerning some issues. Addison often took exception to the minutes as printed, and would attempt to submit amendments or changes. Those amendments were generally not accepted by the team. At one point Addison requested the right to tape record the meetings, but that request was denied. The form of the minutes was altered in October 2009, into a sort of chart, rather than regular minute format. The purpose of that change was to allow for better comparison between prior weeks, the current week and the upcoming week. The minutes were provided to each team member at the beginning of the subsequent meeting. All of the team members, except for Addison, would sign the minutes to confirm that they were correct and accurate. Addison did not ever agree that the minutes were correct and accurate. Addison's designated representative on the team, Creighton, did sign the minutes each week. During the approximately 45 school days that Addison was assessed under the Plan, she made progress in some areas, but according to the team, her progress was followed by further shortcomings. However, measurement of Addison's progress was extremely subjective. For example, Addison was found to be deficient in the use of "targets" for her class. Targets are written focus points placed on the bulletin board so that students can remember what topics are currently being taught. Addison was chastised for having inappropriate targets. However, when compared to other fifth-grade teachers' targets, Addison's were virtually identical. For example, on September 4, 2009, Addison took pictures of the targets posted in her classroom and two other classrooms. The targets are compared below: Addison Classroom 2 Classroom 3 Reading: Tall tales, plot development (setting influences plot), reading words with long vowels and many syllables Tall tales, plot development, setting, subject & predicate, long vowel sounds, dialect Compound words, setting-> where-> when, words with long vowels, chronological order, building fluency Science: Make observations, explain how science tools are used, describe the steps of the scientific method . . . Tools scientist use, scientific method, mass=amount of matter in an object, Inquiry=observe, measure, gather and record data . . . Tell what causes weather . . . make observations, take measurements, explain how science tools are used, steps of the scientific method. . . Language Arts: Six traits: Idea, Compound subjects, simple and compound voice, organization, compound predicates, subjects and word choice, commas in a series predicates, six sentence fluency traits of writing: idea, voice, organization, word choice, sentence fluency, conventions, Commas used in a series Math: place value Place value through Sums and differences through millions, billions, compare of whole numbers and compare and order and order numbers, decimals, strategies decimals, place place value for solving word value patterns, sums patterns, rounding, problems, place and differences of estimating, adding value patterns, whole number, adding and subtracting and subtracting whole numbers and problem solving decimals decimals There appears to be only minimal differences between the three teachers' targets set forth above. There was no competent testimony at final hearing as to why Addison's wording of her targets was somehow inferior to that of the other teachers. As another example of subjective measuring, Addison was cited for allowing some children to be disengaged while she was teaching other children. At least one outside observer noted that some children were not on task and others were seen leaving the classroom. But Addison explained that children had the right (and need) to leave the class to go the reading center or restroom; other children were supposed to be busy individually at an assigned center, etc. That is, in a fifth-grade classroom, all children were not always doing the same thing at the same time. During the time period that Addison was undergoing the Strand III process, she received a number of disciplinary notices. On September 1, 2009, Stocking sent Addison a memorandum entitled "Conference Summary," which was a criticism of Addison's teaching during a class on August 31, 2009 (one week into the new school year). This memorandum was followed by a number of other letters and memoranda. The first such letter was on September 9, 2009, just 16 days into the Strand III process. The "Warning of Unsatisfactory Performance" memorandum issued by Stocking on that date said Addison had failed to post targets and had been teaching outside the stated lesson plans. Thus, rather than assisting Addison, under the Plan, with this perceived shortcoming, a disciplinary action was taken. Six days later, on September 15, 2009, a letter of reprimand was issued by Stocking. Again, Addison was accused of not posting appropriate targets on her board for use by her students. Then on October 30, 2009, another letter of reprimand was issued, this time for not conducting daily running records for her students. Addison was doing the running records, but the records sometimes failed to include a statement by Addison as to the child's reading status. This was a shortcoming that could have been addressed as part of the Plan and discussed in team meetings. Instead, it was handled as a disciplinary matter. The letter also addressed a concern that one student was missing a number of grades in the grade book. Addison suggests there are reasons for that discrepancy, i.e., the student only recently transferred in to her class. These disciplinary letters were followed on December 3, 2009, with a memorandum from Stocking addressed to Addison (although it refers to Addison in the third person) indicating that Addison had not met "district expectations." No one explained at final hearing as to the necessity of on-going disciplinary reports while Strand III was progressing. Addison was meeting weekly with Stocking and other team members to address all issues, including those addressed in the separate disciplinary charges. One of the discipline letters initially recommended a three-day suspension for Addison. A suspension would be totally inappropriate for someone under Strand III. The recommendation was changed once this fact was brought to Stocking's attention by the union representative. Interspersed with these disciplinary actions were a fairly constant exchange of emails between Addison and Stocking, Monoki, Terry and others. The emails contained concerns about Addison's teaching and responses from Addison. It is clear from the correspondence between Addison and others that there was complete disagreement between them as to Addison's teaching skills. The team meetings to address the Plan attempted to cover some of the 117 EAPs each week. Commencing with the October 5, 2009, meeting, a chart was utilized to compare the team's focus from the previous meeting to the focus for the coming week. The chart also included feedback from persons who had personally observed Addison the prior week and a statement of the specific support to be provided in weeks to come. During the first several weeks, the "focus from prior week" section of the chart was fairly brief, while the "feedback from formal observations" section was quite long. During the last few team meetings, this trend reversed. It appears that more feedback and support was being provided in the earliest stages of the Strand III process than in the later stages. According to the findings set forth in the team meeting minutes, Addison made progress in some areas and struggled in others. For the most part, the minutes reflected a "Not Achieved" status for many of the EAPs which were addressed. Addison made some attempts to amend the minutes of team meetings, but inasmuch as the minutes were not meant to be verbatim transcripts, her requests were generally denied. It is telling that Addison's selection to the team, Creighton, signed off on each of the minutes despite Addison's refusal to do so. However, Creighton maintains that Addison was doing a fine job teaching, notwithstanding comments in the minutes. Under the Plan, Addison was supposed to receive guidance, training, and support by administrative and other designated professionals. There is evidence in the record that Addison's class was visited on a number of occasions by other teachers and trainers. However, the preponderance of the evidence is that the classroom visits more often resulted in negative reactions to Addison's teaching than assistance and guidance. The amount of actual assistance received by Addison during the Strand III process is not consistent with the ideals set forth in the Plan. Nor were there any observations made by administrative personnel from the School or from the district office, although the Plan called for such observations. Under the Plan, Addison was supposed to be provided additional planning periods to work on the issues set forth in the Plan. The additional planning periods were never provided, but Petitioner could not explain why. Based upon the size and breadth of the Plan, it would seem that some extra planning time would have been absolutely essential. It is clear Addison and Stocking did not particularly like each other.4 Their differences could have been based on differences in teaching methods, age, years of experience, or any other factor. Whatever the reason, it is clear from the record that the two individuals viewed the same facts with very different interpretations. It is no wonder the Strand III process was deemed unsuccessful. On December 15, 2009, Stocking sent a recommendation to the superintendent of Collier County Schools that Addison be terminated for failing to make significant improvement in the four original areas of concern. By letter dated January 15, 2010, the superintendent notified Addison that a recommendation would be going to the School Board that Addison's teaching contract be terminated. The decision to terminate Addison's teaching contract was made based on the assessment performed during the Strand III process. Lost in the focus on Addison's abilities or lack thereof was the issue of her students' performance. At the conclusion of the 2008-2009 school year, 17 of Addison's 19 students were credited with having achieved a year's worth of growth. The other two students were deemed unable to achieve a year's worth of growth for reasons outside of Addison's teaching abilities. There were more students in the team leader, Arcand's, class deemed deficient at the end of that year than in Addison's class. Addison did not complete the 2009-2010 school year, so that particular measurement cannot be used to assess her abilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Collier County School Board, finding that although there was ample evidence to support placing Respondent, Peggy Addison, on Strand III, the process was flawed and cannot be used to justify termination of Addison's employment contract. DONE AND ENTERED this 17th day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 17th day of September, 2010.
The Issue The issue in this case is whether Respondent, Mary Chung ("Respondent"), committed the alleged conduct and, if so, whether Petitioner, Lee County School Board ("School Board"), has just cause to terminate her employment as a food service worker.
Findings Of Fact Respondent is a food service worker at Lehigh Senior High School ("Lehigh") in Lehigh Acres, Lee County, Florida. She was employed in this capacity for the 2003/2004 school year. Respondent was present for work at Lehigh on May 21, 2004. Respondent was scheduled to work from 6:15 a.m. to 2:15 p.m. on this date. This had been her work schedule all year. On May 21, 2004, Respondent reported for work at least 10 minutes late. She arrived at work at approximately 6:25 a.m. Respondent had not called in to notify anyone that she would be late to work that morning and did not advise or explain to her supervisor the reason for her tardiness. Accordingly, Respondent's tardiness on the morning of May 21, 2004, was not excused by her supervisor, Carol Lewis ("Lewis"), who was the food service manager at Lehigh. Respondent and the other employees in the kitchen are given rotating assignments. They rotate to new assignments every two weeks. During the time period which included May 21, 2004, one of Respondent's responsibilities was to open cans of fruit. In accordance with her assigned duties, upon Respondent's arrival in the kitchen on May 21, 2004, Respondent began opening cans of fruit. Lewis approached Respondent while she was opening the cans and directed her to take two coffee pots to the school's media center for a staff appreciation breakfast. It was not unusual for Lewis to direct workers to stop the tasks they were working on to attend to other tasks that needed to be done. In fact, other food service workers in the kitchen that morning were helping with preparations for the staff breakfast in addition to their other assigned tasks. Respondent first ignored Lewis's request, and when directed again by Lewis to move the coffee pots, Respondent told a fellow employee, Lucy Roan ("Roan"), to move them. Lewis overheard Respondent's remark to Roan and corrected her by saying that she wanted Respondent to move the pots. Respondent then proceeded to where the pots were located and indicated to Lewis that she could not lift them onto the cart that she was to use to take them to the media center. According to Respondent, the reason she could not lift the coffee pots and place them on the cart was because of a problem with her foot. Lewis then put the coffee pots on the cart for Respondent and, again, directed Respondent to take them to the media center. When Lewis came back by the area a few minutes later, Respondent had still not taken the coffee pots to the media center. Lewis then directed Respondent to leave the school and said Respondent was fired. Lewis reported the incident to Ronald E. Davis ("Davis"), the principal of Lehigh during the 2003-2004 school year and at the time of the incident. Davis met with Respondent about the incident and gave her a written reprimand dated May 26, 2004. The reprimand was delivered to her on May 28, 2004. The reprimand indicated that Davis was also recommending that Respondent be dismissed. Davis contacted Georgianna W. McDaniel, director, Personnel Services ("McDaniel"), regarding the May 21, 2004, incident. McDaniel advised the principal to forward documentation regarding the incident to Personnel Services. McDaniel has certain responsibilities with regard to employee discipline. She counsels supervisors and administrators regarding appropriate disciplinary action; she suspends employees (with pay) when recommended by the superintendent; and she acts as the predetermination conference administrator. On or about June 1, 2004, Davis forwarded the May 26, 2004, letter of reprimand that had been given to Respondent to the School District's Personnel Services office. He also sent four written statements from the food service manager and three food service workers who were present in the kitchen when the incident involving Respondent occurred. These statements were written at Davis' direction A predetermination conference was scheduled for July 2, 2004, to give Respondent an opportunity to respond to Davis' recommendation for her dismissal based upon the incident on May 21, 2004. Respondent was notified of the conference by McDaniel by certified letter dated June 23, 2004. Respondent attended the predetermination conference and was given an opportunity to address the complaint filed by Davis. However, the matter was not resolved, and the School District superintendent recommended that Respondent's employment as a food service worker be terminated. The School Board met on August 12, 2004, to consider the Petition. At that meeting, the School Board suspended Respondent without pay and benefits pending receipt of the recommended order of the Administrative Law Judge. Prior to the May 21, 2004, incident, Respondent had experienced work-related problems and/or areas of concern while working as a food service worker. These problems had been discussed with Respondent and documented in her record. On May 9, 2002, Respondent was put on Procedures for Improvement by her then assistant principal, James Buchanan. Procedures for Improvement is a tool used by the School District to notify employees of unacceptable conduct and to give them an opportunity to correct their behavior and desist in any further conduct of that nature. In Respondent's case, the May 9, 2002, Procedures for Improvement noted the following specific deficiencies in Respondent's behavior: "Employee refused to leave area to discuss a problem/situation with the supervisor." The desired improvement in her behavior was: "1) Employee will interact appropriate [sic] with supervisor; 2) Employee when asked to go to an area by a supervisor will go, and follow any other directives by a supervisor; [and] 3) Employee will conduct herself properly with co-workers." Respondent was advised she could achieve this desired result as follows: "Employee will do what is told of her to do by a supervisor. Do the work that is assigned to her and complete it in a timely manner." Her success in reaching the desired result would be judged as follows: "No further incidents of refusing to go to a private area to talk out differences. Employee will have no other incidents with co-workers and supervisors." Respondent was also notified in her 2003-2004 Performance Assessment that she was deficient in certain areas and that she needed to "focus" on the following areas in the future: "6) Is punctual in attendance; 8) Exhibits dependability; 11) Exhibits positive attitude; 14) Has good rapport with others; and 15) Accepts criticism constructively." Her supervisor also noted in the comments section that she: "Calls in sick or late too much. Not dependable at all — Gripes about others or duties." She also noted that as of the date of the Performance Assessment (March 2004), Respondent had been absent for 231 hours (or 33 days) and tardy 15 times. Lewis prepared Respondent's 2003/2004 Performance Assessment. It was her responsibility as the food service manager to prepare an annual Performance Assessment for all the food service workers. Lewis prepared the Performance Assessment on March 24, 2004, and reviewed it with Respondent on March 30, 2004, the same date that Respondent signed the Performance Assessment. As a food service worker, Respondent was considered a "10-month employee." She did not work during the summer months. Her last day of work for the 2003-2004 school year was Friday, May 28, 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment as a food service worker with the Lee County School District. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 3rd day of November, 2004. COPIES FURNISHED: J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Mary Chung 2147 Gulfside Village Drive Lehigh Acres, Florida 33972 Dr. James W. Browder, III Superintendent of Schools Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Honorable John Winn Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
