The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated August 22, 2002, and in the Notice of Specific Charges filed October 12, 2002, and, if so, whether dismissal from employment is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002). At the times material to this proceeding, Mr. Starr was employed by the School Board as a social studies teacher at Lake Stevens. After receiving a degree in political science from Loyola University, Mr. Starr enrolled in the social studies education program at Florida International University. Mr. Starr completed this program in the summer of 1998 and applied for a teaching position with the Miami-Dade County public school system. He was hired as a substitute teacher and placed in a substitute teacher pool so that he worked at various schools, and he also taught in the Adult Education Program at North Miami Senior High School. Dr. Alvin Brennan became the principal of Lake Stevens in January 2000. In or around November 2000, he hired Mr. Starr to teach social studies at Lake Stevens. At the times material to this proceeding, Arnold Montgomery was the assistant principal at Lake Stevens who, among other duties, supervised the social studies program, observed teachers' classroom performance, and acted as a resource person regarding curriculum, instructional, and academic issues at the school. In a Teacher Assessment and Development System Post- Observation Report dated January 18, 2001, Dina Carretta, an assistant principal at Lake Stevens, rated Mr. Starr acceptable in all six categories of the Teacher Assessment and Development System evaluation instrument. Mr. Starr's failure to keep a standard grade book. In early November 2001, Dr. Brennan learned that the State Department of Education intended to include Lake Stevens in a Full-Time Equivalency audit. The grade books of the teachers at Lake Stevens were to be reviewed as part of the audit to ensure that Lake Stevens accurately reported its full- time equivalents to the district so that the State could ultimately determine the accuracy of the number of full-time equivalents reported by the various school districts to the State. On or about November 2, 2001, Dr. Brennan instructed all of the teachers at the school to turn over their grade books to him for review so that he could prepare for the audit. It is one of the responsibilities of a teacher to maintain a grade book that contains the attendance record and grades for each student in his or her classes. Mr. Starr did not submit a grade book to Dr. Brennan in response to this instruction, and Dr. Brennan called Mr. Starr to his office and directed him to turn over his grade book. Mr. Starr told Dr. Brennan that he was experimenting with a computerized grade book and that only he could understand it.2 Dr. Brennan explained to Mr. Starr that each teacher is required to keep complete and accurate grade books because funding is dependent on the number of students attending a school and because grade books are official documents that must be produced to parents who ask about their children's grades and attendance. Mr. Starr still did not provide his grade book to Dr. Brennan as instructed. During roughly this same timeframe, Mr. Montgomery began preparations for an observation of Mr. Starr's classroom performance in accordance with the Professional Assessment and Comprehensive Evaluation System ("PACES"), which is a tool for evaluating teachers that came into use in the Miami-Dade County public school system in or about 1999. Mr. Montgomery intended to conduct an observation of Mr. Starr's classroom in late November 2001, and, in accordance with procedure, Mr. Montgomery scheduled a pre-observation conference with Mr. Starr for November 19, 2001. In the notice of the pre-observation conference, Mr. Montgomery asked Mr. Starr to bring his grade book, lesson plans, and three student folders to the conference. Mr. Starr did not attend the pre-observation conference and did not provide the materials that Mr. Montgomery had requested. Mr. Montgomery followed up with Mr. Starr and asked him again to provide the requested documents; Mr. Starr responded that he would provide the documents, including the grade book, at a later time. Mr. Starr did not provide his grade book to Mr. Montgomery prior to or at the November 26, 2001, observation. Dr. Brennan held a Conference-for-the-Record with Mr. Starr on December 7, 2001, to discuss Mr. Starr's failure to comply with Dr. Brennan's directive to provide him with a proper grade book; Ms. Carretta was also in attendance. It is noted in the Summary of the Conference-for-the-Record, dated December 13, 2001, that Mr. Starr was asked whether the United Teachers of Dade represented him, and he responded that he was not a member of the union. In the Summary of the Conference-for-the-Record, Dr. Brennan recorded that the purpose of the conference was to discuss Mr. Starr's non-compliance with School Board Rule 6Gx13- 4-1.21 and with administrative directives requiring that he properly maintain a grade book. Dr. Brennan explained to Mr. Starr during the conference the importance of maintaining a grade book to record daily attendance and grades for his students and advised him that one of his responsibilities as a teacher was to maintain a proper grade book. At the December 7, 2001, Conference-for-the-Record, Dr. Brennan advised Mr. Starr that, although there were authorized computer grade book programs, the program with which Mr. Starr was experimenting was not authorized. Dr. Brennan directed Mr. Starr not to use any computerized or computer- assisted grade books without first obtaining Dr. Brennan's approval and instructed him to ask Arnold Montgomery, an assistant principal at Lake Stevens, to help him set up and maintain a standard grade book. Mr. Starr did not believe that he was required to get Dr. Brennan's approval for the use of a computer grade book "right off the bat."3 In his view, the rules provided that Dr. Brennan had the authority to demand that he not use a computer grade book but that the School Board allowed computer grade books in general. Mr. Starr continued to use his computerized "grade book," and he did not provide a grade book to Dr. Brennan or to Mr. Montgomery during the 2001-2002 school year, despite being instructed to do so on numerous occasions.4 At some point, Mr. Starr provided Dr. Brennan with sheets of paper that Mr. Starr identified as his computerized grade book, but Dr. Brennan was unable to understand the documents that Mr. Starr presented to him. Mr. Starr's failure to adhere to Lake Stevens' discipline plan. Currently, and at the times pertinent to this proceeding, Lake Stevens has in place a discipline plan developed by the school's Discipline Committee pursuant to which teachers are required to go through five steps before taking the sixth step of requesting administrative action with respect to students who presented discipline problems. This six-step discipline plan has the approval of the teachers and administrators at Lake Stevens. Pursuant to the plan, the teachers at Lake Stevens are grouped into teams of six teachers, who work in collaboration in carrying out each step of the six-step discipline plan. It is Dr. Brennan's responsibility to ensure that the six-step discipline plan is implemented. The main elements of the six-step discipline plan are as follows: When a student misbehaves in a teacher's classroom, the teacher first initiates a discussion about the student at the daily team meeting to determine whether any other teachers on the team have a problem with that student. If necessary, the team moves to the second step, which requires that the team conduct a conference with the parent(s) of the student. If the problem still is not resolved, the third step is initiated and the student is required to confer with a school counselor. The fourth step in the six-step plan requires that the student meet with both the school counselor and the team. The fifth step is a parent/student conference with the school counselor and the team. If the problem has not been resolved after these five steps have been completed, the team then moves to the sixth step and the teacher is permitted to complete a referral sending the student to a school administrator for intervention.5 The referral must be routed through the team leader. Once the team leader approves a referral, the team leader meets with the administrator for the particular grade-level, and they decide the appropriate punishment for the student. If a teacher refers a student for administrative action before the first five steps in the plan are completed, the team leader sends the referral back to the teacher with instructions to follow the appropriate procedure. According to Mr. Starr, there was chaos in his classroom by December 2001. Prior to this time, he had spoken with Dr. Brennan about the problems he was having maintaining discipline, and Dr. Brennan told him he needed to learn to handle the problems himself. Dr. Brennan insisted that Mr. Starr strictly adhere to the six-step discipline plan, and Dr. Brennan refused to provide direct assistance to Mr. Starr even though Mr. Starr repeatedly requested his assistance. In Dr. Brennan's view, it is the teacher's responsibility to manage the learning environment, and it is not the responsibility of the principal to help the teachers maintain discipline in their classrooms. To this end, Dr. Brennan encouraged Mr. Starr to work with the team of teachers on his grade level on a daily basis for assistance in managing his classroom. In addition, Dr. Brennan directed Mr. Starr to discuss techniques for classroom management with the members of a Professional Growth Team that was appointed in December 2001 to assist Mr. Starr and with Mr. Montgomery, who was available to assist Mr. Starr. Mr. Starr resisted all efforts to assist him in managing his classroom. Mr. Starr absolutely refused to adhere to the six-step discipline plan during the entire 2001-2002 school year and repeatedly prepared referrals and sent students to the administrative offices without having completed even the first step of the six-step plan. Mr. Starr did not attend team meetings and isolated himself from the team. Because of his refusal to work with his team, it was very difficult for anyone to help Mr. Starr deal with students that he considered disruptive and defiant. Mr. Starr refused to adhere to the six-step discipline plan because he disagrees with the philosophy of the plan; he believes that misbehavior must be addressed with immediate consequences and that, because it took days to complete the five steps required before a referral could be made, the plan reinforced his students' perceptions that there were no consequences to defiance and disruption in his classroom.6 Mr. Montgomery had numerous conferences with Mr. Starr about his failure to follow the six-step discipline plan, specifically about his not following the first five steps in the plan, but, rather, going directly to the sixth step and referring misbehaving students to Dr. Brennan's office. Mr. Starr told Mr. Montgomery periodically throughout the 2001- 2002 school year that the six-step discipline plan did not work for him and that he was not going to follow the plan. Mr. Starr described the conditions in his classroom in a memorandum to Dr. Brennan dated March 5, 2002: The situation in my classroom has become dangerous and untenable due to rampant student defiance. Students no longer obey what the instructor directs them to do, and they are no longer in compliance with any class rules. Lesson objectives are not being met due to the chaos, and there is a potential that student[s] may be injured. Mr. Starr referred in his memorandum to a number of "management referrals" that he contended had not been processed by the administration, and he attributed the chaos in his classroom to "administrative neglect." Mr. Starr concludes his memorandum by stating: "The weakness in my management is due to lack of administrative support because of inadequate follow-up." Mr. Starr sent copies of this memorandum to the district office, the regional superintendent and the district superintendent of schools.7 Dr. Brennan responded to Mr. Starr's memorandum by discussing the situation in Mr. Starr's classroom with the administrator handling discipline matters for the sixth grade;8 during the discussion, Dr. Brennan "question[ed] the validity of the statements that Mr. Starr was making in his letter."9 Dr. Brennan then referred Mr. Starr to the leader of his team and to the grade-level administrator for the sixth grade for a review of the six-step discipline plan. Dr. Brennan also instructed Mr. Starr to work with his team on discipline problems. Dr. Brennan found it very difficult to assist Mr. Starr, however, because, in Dr. Brennan's view, Mr. Starr resisted all of the administration's efforts to help him with the discipline problems in his classroom and refused to implement the six-step discipline plan. In addition, many of the students identified by Mr. Starr as discipline problems were not causing problems for any of the other teachers on Mr. Starr's team. Mr. Starr's refusal to complete prescriptive activities. Mr. Starr was in his second year of an annual contract during the 2001-2002 school year and was, therefore, considered a new teacher subject to two formal PACES observations each year. Whenever a PACES observation is scheduled, the teacher is notified at least a week in advance, and a pre-observation conference is scheduled. The teacher is told to bring to the pre-observation conference his or her grade book, lesson plans, and other materials for review so that everything will be in order at the time of the observation, and the teacher and the administrator who is to conduct the observation discuss the observation procedures. Currently, and at the times material to this proceeding, new teachers at Lake Stevens are given a "free" observation, if necessary, in addition to the two required formal observations. The purpose of the free observation is to allow the administrator observing the teacher to identify the teacher's deficiencies, to discuss the deficiencies with the teacher, and to provide the teacher with assistance to remedy the deficiencies prior to the formal observation. A teacher who has deficiencies in the first observation is given a week or more to work on correcting any deficiencies before an official observation is conducted. Mr. Montgomery scheduled a PACES observation of Mr. Starr's classroom performance for November 26, 2001. In preparation for this observation, Mr. Montgomery scheduled a pre-observation conference for November 19, 2002, and he directed Mr. Starr to bring with him to the meeting his grade book, his lesson plans, and three student folders. As noted above in paragraph 10, Mr. Starr did not attend the conference, and he did not produce any of the materials requested by Mr. Montgomery. Mr. Montgomery, therefore, did not have an opportunity to review these items prior to the observation. Mr. Montgomery determined during the PACES observation on November 26, 2001, that Mr. Starr's classroom performance was deficient in a number of the components of the PACES evaluation instrument. Mr. Montgomery attributed these deficiencies in large part to Mr. Starr's failure to have a lesson plan prepared for his classes and to his inability to manage his classroom. Had Mr. Starr's classroom performance been acceptable during the November 26, 2001, observation, that observation would have been considered his formal PACES observation. Mr. Starr's classroom performance had serious deficiencies, however, and the November 26, 2001, observation was treated as a "free" observation. Mr. Montgomery met with Mr. Starr after the November 26, 2001, observation, discussed the deficiencies in his classroom performance, and instructed him to provide the grade book, lesson plans, and student folders that Mr. Montgomery had previously requested before the formal PACES observation of his classroom performance. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on December 3, 2001, after having given Mr. Starr one week's notice. Mr. Starr again failed to provide his grade book, lesson plans, or student folders, and Mr. Montgomery found his classroom performance deficient in five out of the seven PACES domains: Mr. Montgomery found that Mr. Starr was deficient in planning for teaching and learning; managing the learning environment; enabling thinking; classroom-based assessment of learning; and professional responsibility.10 On or about December 13, 2001, Mr. Montgomery and Dr. Brennan conferred with Mr. Starr to discuss his December 3, 2001, observation. Mr. Starr was provided with a copy of the observation and was told to work with a Professional Growth Team for assistance in correcting the deficiencies in his classroom performance. He was also directed to work with a buddy, a peer, and a master teacher to learn how to set up a grade book and to learn what must be included in a lesson plan. A Professional Growth Team consists of two teachers, one selected by the teacher and one selected by Dr. Brennan. Mr. Starr selected Ms. Davis and Dr. Brennan selected Ms. Scriven-Husband as members of the Professional Growth Team.11 Dr. Brennan gave Ms. Davis and Ms. Scriven-Husband a general outline of Mr. Starr's deficiencies and advised them of the areas in which they were to work with Mr. Starr. The work of the Professional Growth Team was done under the supervision of Dr. Brennan, and he was advised that Mr. Starr was not completing the tasks given him by the Professional Growth Team. One of the items Mr. Starr was to produce for the Professional Growth Team was a long-range plan. Dr. Brennan wanted Mr. Starr to produce a long-range plan so the Professional Growth Team could determine whether he knew how to plan a lesson. Dr. Brennan was advised that Mr. Starr did not provide such a plan to the Professional Growth Team. When Dr. Brennan questioned Mr. Starr about the plan, Mr. Starr replied that he intended to prepare it over the Christmas holidays. Dr. Brennan told him to provide the plan by the end of the day; Mr. Starr did not do so. Mr. Montgomery scheduled an informal observation of Mr. Starr's classroom performance on or about February 8, 2002. Mr. Montgomery had spoken periodically with members of Mr. Starr's Professional Growth Team between the December 3, 2001, and February 8, 2002, observations and had been advised that Mr. Starr had not provided the Professional Growth Team with his grade book, lesson plans, or student folders and that Mr. Starr had not sought the team's assistance in correcting the deficiencies identified in the December 3, 2001, observation. Mr. Montgomery again instructed Mr. Starr to provide his grade book, lesson plans, and student folders prior to the February 2002 observation. In response to this instruction, Mr. Starr advised Mr. Montgomery that he used an electronic grade book and that his lesson plans were on his Palm Pilot because he felt that he had more flexibility using these tools than trying to work with written documents. Mr. Montgomery told Mr. Starr to provide hard copies of the lesson plans and the grade book, as required by the Miami-Dade County public school system procedures; Mr. Starr did not provide the requested documents to Mr. Montgomery. Mr. Montgomery observed numerous deficiencies in Mr. Starr's classroom performance during the February 8, 2002, observation, and Mr. Montgomery discussed the results of the observation with Dr. Brennan. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on March 1, 2002. Again, Mr. Montgomery noted a number of deficiencies in Mr. Starr's classroom performance, specifically in seven components of Domain I, Planning for Teaching and Learning; eight components of Domain II, Managing the Learning Environment; two components of Domain V, Enabling Thinking; and one component of Domain VI, Classroom-Based Assessment of Learning. Dr. Brennan discussed the results of the March 1, 2002, observation with Carnel White, the Region Superintendent for Lake Stevens, who instructed Dr. Brennan to proceed to develop a Professional Improvement Plan.12 Dr. Brennan was, by this time, certain that Mr. Starr was not going to correct the deficiencies in his classroom performance, since the deficiencies noted in the March 1, 2002, observation were the same deficiencies noted in previous observations. Mr. Starr met with Dr. Brennan and Mr. Montgomery in a Conference-for-the-Record on March 15, 2002, to discuss the results of the March 1, 2002, observation.13 An extensive Professional Improvement Plan was developed for Mr. Starr during the Conference-for-the-Record: Mr. Starr was required to complete course work for Domains I, II, V, and VI; he was required to discuss with the Professional Growth Team 17 assigned readings and to submit written summaries of these readings to Dr. Brennan for his approval; and he was required to discuss with Dr. Brennan and identify for him techniques and strategies for 14 components in which he was deficient, to apply the new techniques and strategies, and to maintain and submit to Dr. Brennan logs charting the successes and failures in his application of these new classroom techniques and strategies. All of the courses and plan activities in the Professional Improvement Plan were to be completed by April 9, 2002.14 Mr. Starr was advised at the March 15, 2002, Conference-for-the-Record that he should speak to Mr. Montgomery if he had any concerns about the Professional Improvement Plan. Mr. Starr did not complete the plan activities set forth in the Professional Improvement Plan by the April 9, 2002, deadline. On April 9, 2002, Dr. Brennan called Mr. Starr to the office to ask him to submit the written plan activities required by the Professional Improvement Plan; although Mr. Starr presented himself at the main office, he refused to go into Dr. Brennan's office to meet with him. According to Dr. Brennan, Mr. Starr also advised him at this time that he did not intend to comply with any further administrative directives. On April 10, 2001, after conferring with Dr. Brennan, Mr. White placed Mr. Starr in an alternate work assignment at his residence, pending a district-level Conference-for-the- Record requested by Mr. White. The district-level Conference- for-the-Record was held at the Office of Professional Responsibilities on April 12, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan; his insubordination; his violation of Rule 6B-1.001, Florida Administrative Code; and his future employment status with the School Board. The April 12, 2002, Conference-for-the-Record was conducted by Barbara Moss, District Director of the Office of Professional Standards, and Ms. Moss prepared a Summary of the Conference-for-the-Record dated May 3, 2002. In the summary, Ms. Moss noted that, prior to the conference, Mr. Starr asked to bring an attorney to the Conference-for-the-Record and to tape the proceedings and that he was told that attorneys and tape recordings were not permitted. Ms. Moss also noted that Mr. Starr accused Dr. Brennan of harassing him and that she discussed with Mr. Starr the procedure for reporting harassment and gave him an Equal Employment Opportunity packet. Ms. Moss further noted that Mr. Starr stated that he wanted to file a grievance against Dr. Brennan and that she explained the procedure for filing a grievance and gave him a copy of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade, which contained the formal union grievance procedure. Mr. Starr was not, however, a union member and did not have access to this procedure. Mr. Starr's failure to comply with the plan activities specified in the Professional Improvement Plan dated March 15, 2002, was discussed at the April 12, 2002, Conference-for-the- Record. It is reported in the summary that Mr. Starr stated that he believed the evaluation process was designed to make him fail and that there was a conspiracy against him. According to the Summary of the Conference-for-the- Record, Mr. Starr confirmed during the conference that he had told Dr. Brennan that he wouldn’t comply with Dr. Brennan's directives, explaining that he defied Dr. Brennan because Mr. Starr perceived that Dr. Brennan was abusive and belligerent in his dealings with him. The summary also reflects that Mr. Starr's failure to provide Dr. Brennan with a student grade book and with attendance records was specifically discussed at the Conference-for-the-Record. The summary of the April 12, 2002, Conference-for-the- Record reflects that Mr. Starr was issued the following directives: He was directed to comply with all administrative directives; to complete all Professional Improvement Plan activities and to submit them to Dr. Brennan by the end of the workday on April 15, 2002; to maintain a grade book, a record of students' attendance, and lesson plans; and to implement Lake Stevens' discipline plan to effect classroom management. Mr. Starr was also told to submit to Dr. Brennan by April 15, 2002, an updated grade book and student attendance records. Finally, Mr. Starr was advised that he could return to Lake Stevens and resume his teaching duties on April 15, 2002. Mr. Starr indicated at the conclusion of the April 12, 2002, Conference-for-the-Record that he would comply with the directives. Finally, Mr. Starr requested at the April 12, 2002, district-level Conference-for-the-Record that Mr. White order Dr. Brennan to relieve him of the sixth period class, stating, according to the summary, that he was not capable of teaching six periods. Mr. White instructed Dr. Brennan to assign the sixth period to another teacher, which Dr. Brennan did.15 When Dr. Brennan did not receive Mr. Starr's completed Professional Improvement Plan activities by April 15, 2002, he extended the deadline to April 16, 2002. Mr. Starr did not provide the materials on April 16, 2002, and Dr. Brennan summoned Mr. Starr to his office.16 According to Dr. Brennan, Mr. Starr was disruptive when he arrived at the administrative offices in response to Dr. Brennan's summons on April 16, 2002. Mr. Starr announced in the main office, in front of several members of the school staff, that he was not going into Dr. Brennan's office, and he told Dr. Brennan not to summon him to Dr. Brennan's office again.17 Dr. Brennan telephoned Ms. Moss on April 16, 2002, after this incident, and advised her that Mr. Starr "had been blatant in his insubordination" and that either Mr. Starr would have to leave the Lake Stevens campus or he, Dr. Brennan, would leave.18 On April 17, 2002, Dr. Brennan conducted a PACES observation of Mr. Starr for his annual evaluation. The Observation Form for Annual Evaluation indicates that Dr. Brennan observed Mr. Starr's classroom performance from "12:30 to 12:50."19 Mr. Starr again failed to have a lesson plan, and Dr. Brennan found that Mr. Starr was deficient in every component of the six PACES domains evaluated. The evaluation form reflects that a post-observation meeting was held on April 19, 2002, at which time Mr. Starr signed the evaluation form and wrote on the form that he did not agree with the evaluation. On April 18, 2002, Dr. Brennan issued a notice advising Mr. Starr that a Conference-for-the-Record had been scheduled for April 22, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan, gross insubordination, violation of the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and violation of School Board Rule 6Gx13-4A-1.21. According to the Summary of the Conference-for-the- Record, the conference was held in Mr. Starr's absence because of "his refusal to comply with an administrative directive." Dr. Brennan referred in the summary to Mr. Starr's "refusal to report to the principal's office" and categorized the refusal as insubordination and conduct unacceptable for a School Board employee. Assistant Principal Dina Carretta was the only person other than Dr. Brennan attending the Conference-for-the-Record. During the April 22, 2002, Conference-for-the-Record, Dr. Brennan prepared a Professional Improvement Plan for PACES Domain VII, Professional Responsibilities, having found Mr. Starr deficient in that domain, because he failed to comply with the March 15, 2002, Professional Improvement Plan; failed to submit by the required date the activities set out in the Professional Improvement Plan; and failed to comply with "district and school site requirements regarding grade book and student's attendance records." Mr. White again placed Mr. Starr on alternate work assignment at his residence, effective April 24, 2002. Ms. Moss included in the Summary of the Conference-for-the-Record held April 12, 2002, which she prepared on May 3, 2002, a notation that, on or about April 24, 2002, she spoke with Mr. Starr and advised him that he could resign his position if he did not wish to comply with administrative directives and the Professional Improvement Plan activities. According to the notation in the summary, Mr. Starr again affirmed that he would comply with the directives and the plan activities. After she prepared the summary of the April 12, 2002, Conference-for-the-Record, Ms. Moss submitted it to the School Board's attorneys for review because Dr. Brennan and Mr. White had recommended that Mr. Starr's employment with the Miami-Dade County public school system be terminated. The bases for the termination recommendation included gross insubordination, violation of School Board rules, and violation of the Code of Ethics of the Education Profession. In July 2002, after it was decided that a recommendation would be made to the School Board that Mr. Starr be terminated as a teacher with the Miami-Dade County public school system, Ms. Moss met with Mr. Starr to advise him of the recommendation; she also gave Mr. Starr another opportunity to resign his position, which he refused. Summary. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Starr repeatedly refused to comply with directives and instructions from Dr. Brennan and Mr. Montgomery that were reasonable and within the scope of their authority and that, in at least one instance, Mr. Starr openly and publicly defied an order given by Dr. Brennan. Mr. Starr freely admits that there was a serious lack of discipline among the students in his classroom and that the problems were so severe that he was unable to teach and the students were unable to learn. Mr. Starr also admits that he defied Dr. Brennan in almost everything that Dr. Brennan directed him to do and that he was repeatedly insubordinate towards Dr. Brennan. Although Mr. Starr's defiance of Dr. Brennan's directives consisted, for the most part, of a stubborn refusal to do as Dr. Brennan directed, Mr. Starr did cause a public disturbance in the main office by refusing to enter the principal's office when summoned on April 16, 2002, thereby openly defying Dr. Brennan's authority to summon Mr. Starr to his office. Mr. Starr's refusal to comply with reasonable administrative directives and his blatant defiance of Dr. Brennan reflected discredit on Mr. Starr as a teacher. The evidence is also sufficient to establish with the requisite degree of certainty that, from December 2001, until he was removed from the classroom on April 24, 2002, Mr. Starr did not make any effort to work with Mr. Montgomery or with his Professional Growth Team to improve his teaching and class management deficiencies, nor did he make any effort to complete the activities set forth in the Professional Improvement Plan that were designed to assist him in achieving professional growth. Mr. Starr's failure to strive for professional growth by working to correct the deficiencies identified in Mr. Montgomery's December 3, 2001, and March 1, 2002, observations negatively affected his ability to teach his students. Mr. Starr refuses to accept responsibility for the lack of discipline in his classroom. Rather, he faults Dr. Brennan for failing to help him impose discipline on those students who were misbehaving and defying Mr. Starr's authority. According to Mr. Starr, the six-step discipline plan did not work, and, once the students realized that there were no consequences if they behaved badly, it was impossible for him to manage the students in his classes. Mr. Starr also believes that, if Dr. Brennan cared about Mr. Starr's professional development, Dr. Brennan would have "developed a specific strategy of corrective action for students that were defiant" towards him.20 Mr. Starr considers his defiance of and insubordination towards Dr. Brennan "principled," and he believes that he had "no other reasonable recourse" but was forced by Dr. Brennan to defy Dr. Brennan's administrative directives.21 Additionally, Mr. Starr justifies his refusal to complete the Professional Improvement Plan activities, to keep a standard grade book, to adhere to the six-step discipline plan, and to prepare lesson plans on the grounds that Dr. Brennan behaved towards him in an abusive and belligerent manner and attempted to set him up for termination. It may well be, as Mr. Starr contends, that Dr. Brennan began losing patience with Mr. Starr, as the 2001-2002 school year progressed; it may well be that Dr. Brennan's manner towards Mr. Starr became increasingly abrupt; and it may well be that Dr. Brennan could have provided Mr. Starr with more assistance than he was willing to provide. Whatever Dr. Brennan's failings as Mr. Starr's principal, however, Mr. Starr was not justified in defying Dr. Brennan, in refusing to obey Dr. Brennan's directives, and in generally behaving in a manner inappropriate for a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order Finding that Stephen J. Starr, Jr., violated School Board Rule 6Gx13-4A-1.21 and committed gross insubordination and misconduct in office; Sustaining his suspension; and, Terminating his employment as a teacher with the Miami-Dade County public school system. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 31st day of March, 2003.
The Issue The issues are whether the allegations of the Petition for Termination of Employment are correct, and, if so, whether the Lee County School Board (Petitioner) has just cause for terminating the employment of Valarie Strawder (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a food service worker at Riverdale High School. On May 16, 2008, the Respondent became involved in an altercation with a 15-year-old male student ("J.T.") enrolled in the Riverdale Middle School. At the time of the incident, the middle school and high school were co-located on the same campus. For several years prior to the altercation, the Respondent had been the girlfriend of the student's father. According to the uncontroverted testimony of the Respondent, the situation became tense after the man fathered a child by another woman, but the Respondent remained involved with him. The Respondent testified also without contradiction that for various reasons involving the other woman, her boyfriend's school-aged children did not like the Respondent and engaged in routine harassment of the Respondent. There was evidence that both the Respondent and the children had complained about each other to school officials. J.T. was described by one of the school's teacher's as "mouthy." The Respondent also testified as to physical damage that had occurred to her automobile, but the evidence was insufficient to attribute the cause of the damage to the children. The Riverdale cafeteria was designed to separate the dining areas from the combined kitchen and food service areas ("kitchen"). Doors from the kitchen to the dining area were locked from inside the kitchen to prevent unauthorized entry by students. Food was served through openings between the dining and kitchen areas. The openings ("windows") could be securely covered by rolling metal shutters mounted above the windows. At approximately 12:30 p.m., on May 16, 2008, J.T. was in the dining area and, through a window, was engaged in a conversation with Ludine Waters, a food service worker who was located in the kitchen. The Respondent entered the dining area from the kitchen, walked to the open window, and pulled down the rolling metal shutter located above the window through which J.T. and Ms. Waters were talking. The Respondent testified that she saw J.T. standing at the window, but was not aware that he was talking with Ms. Waters at the time the Respondent closed the window. Immediately after the Respondent closed the window, J.T. spoke to the Respondent and called her a "rude bitch" and a "bald-headed bitch." As the Respondent re-entered the kitchen through the secured doors, she replied "your mammy" to the student, apparently intending to convey a derogatory remark about J.T.'s mother. After the Respondent re-entered the kitchen, J.T. threw a beverage bottle through a window that remained open between the dining area and the kitchen. The Respondent then observed J.T. taking off his coat and stating that he would "beat her ass," indicating to the Respondent that J.T. was preparing to fight with her. The Respondent testified that she said to J.T., "if you think you can beat me, bring it." The Respondent also testified at the hearing that she believed that J.T. was "just playing," but the Respondent's subsequent interaction with J.T. does not support the Respondent's testimony. After the Respondent told J.T. to "bring it," J.T. proceeded towards the door into the kitchen and so did the Respondent. At the time both arrived at the door, it opened and the two began to fight. The evidence fails to establish who opened the door, but given that the door locks were designed to prevent students entering from the dining area, it is reasonable to presume that the door was opened from inside the kitchen. The physical altercation between the Respondent and J.T. was brief. Both the Respondent and the student struck and hit each other, and the student pulled off the Respondent's wig. The Respondent and J.T. were separated by a physical education teacher who was in the cafeteria at the time of the incident and who, upon observing the commotion, rapidly moved to quell the disturbance by pulling the student away from the Respondent. The Respondent has asserted that she was acting in self-defense at the time of the altercation, but the evidence fails to support the assertion. In addition to the doorway where the altercation occurred, the kitchen had a second exit that connected to a staff dining room towards the rear of the kitchen. The Respondent made no effort to go to the staff dining room where she could have avoided further interaction with J.T. Additionally, there was a telephone in the staff dining room and another telephone in the cafeteria manager's office. The Respondent made no effort to call for assistance or security prior to engaging in the fight with the student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the Respondent's employment as a food service worker. DONE AND ENTERED this 13th day of April, 2009, 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 13th day of April, 2009. COPIES FURNISHED: Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966 Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 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 Dr. James W. Browder, Superintendent Lee County School Board 2855 Colonial Boulevard Fort Myers, Florida 33966-1012
The Issue By this Petition, the School Administration of Lee County, Florida, seeks to expel Ronald Dale Slayback on charges that on November 4, 1975, while a student at Riverdale High School, he engaged in throwing chairs at other students. Although the witness who observed Slayback throw chairs did not appear and testify inasmuch as his presence was required at the school at the time of the hearing, the principal of the school, James Middlebrooks, Jr., testified that at the preliminary hearing Slayback acknowledged that he had thrown chairs during the incident on November 4, 1975. The chairs involved in these incidents were chairs with metal legs and backs, and hard plastic seats and backs. They could cause serious injury to anyone hit by them. At the time of the incident some 400 to 600 students were passing through the common area inside the building during a class change, and, but for the prompt and effective action of school officials, a race riot could have resulted. Ronald Slayback testified in his own behalf. As Slayback was walking across the common area he was hit in the back with a chair. He also stated he was hit a second time as he ran toward Assistant Principal Hadley. When the chair was thrown at him he reacted by throwing another chair at his assailant, Ronald Tape. He indicated that part of his chair throwing was in self defense and the other part was in retribution for having been hit with a chair. Slayback has caused few disciplinary problems at Riverside. The only other problem involved his overreaction the year before when his brother was arrested. The brother was found not guilty of the offense for which he was arrested. In view of Ronald Slayback's prior disciplinary record, or lack thereof, expulsion in this case does not appear warranted. From the foregoing it is concluded that Ronald Slayback is guilty of throwing chairs at other students as alleged. This is a serious offense and can cause injury to pupils in the school. All students were advised that chair throwing would not be tolerated and, if committed, would result in expulsion. It is therefore, RECOMMENDED that Ronald Slayback be suspended for 30 days. DONE and ORDERED this 23rd day of December, 1975 in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1975. COPIES FURNISHED: Harry Blair, Esquire Post Office Box 1467 Ft. Myers, Florida 33902 Ronald Slayback Route 4, Carta Hana Avenue Ft. Myers, Florida 33904
The Issue Whether there is just cause to suspend Respondent, George Young (Respondent), as alleged in the letter of the superintendent of schools dated June 9, 2008.
Findings Of Fact Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Indian River County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff. At all times material to the allegations of this case, Respondent, George Young, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach at Sebastian River High School and served as head baseball coach for the varsity team. For purposes of this case, all acts or omissions complained of were in connection with Respondent’s responsibilities as a baseball coach. By way of background, the allegations of this case evolved from an underlying incident that must be disclosed in order to put the proper perspective on Respondent’s role and responsibility in connection with the allegations. During March of 2008, Respondent scheduled his team to participate in a baseball tournament held in Broward County, Florida. The tournament location and schedule made it convenient for the team to remain near the site for one night of the tournament. This was not the first over-night venture for Respondent and the teams he coached. Prior to tournaments it was Respondent’s policy to instruct the team that they were representatives of the school. Respondent encouraged the students to refrain from horseplay, roughhousing, or misbehavior that could discredit them or the school. In short, the team members were to conduct themselves as gentlemen. Nevertheless, some of the students did engage in poor conduct. More specifically, several of the players began to wrestle in one of the hotel rooms. Some unspecified number of the players turned on their teammate, H.C. Without Respondent’s knowledge or consent, the players wrestled H.C. (the victim) to a bed, pulled down his pants, and placed a plastic soda bottle at or near his rectum. It is unknown whether the bottle actually penetrated the victim, but the fact that an assault was perpetrated by the student players is certain. After the assault, the victim escaped the room and fled to another hotel room. Several team players observed the victim to be quite upset. Moreover, at least one player believed that the student was so upset he was crying. Word spread among some of the players that something bad had happened to the victim. The details of the assault were not general knowledge. At least two adults who accompanied the team on the trip were also made aware that something untoward had occurred to the victim. At least one of the parents told Respondent that night that something had occurred. No specifics of the incident were disclosed to Respondent. He knew, however, that wrestling had occurred and that someone was upset. Respondent made no effort to personally discover what had happened to the victim that night. Presumably, he chalked it up as adolescent roughhousing. The next morning Respondent called a team meeting before the team left the hotel. It was his custom to speak to the team before checkout but on this morning he had the additional task of attempting to find out what had occurred the night before. Not surprisingly, no one disclosed the full details of the assault. From the hotel the team went on to a meal and played in the tournament. Respondent did not pursue further inquiry into the assault. Respondent did not question anyone individually regarding the events. Approximately one week later the victim's parents heard about the assault. A parent telephoned them to share information that something had occurred on the tournament trip. They were stunned and surprised to learn of the incident. They questioned their sons (both of whom were on the tournament trip) and decided something needed to be done to punish the students who committed the assault. To that end, they went to Respondent's home and asked him about the incident. Respondent was surprised to learn of the details of the assault and represented that something would be done to appropriately discipline the perpetrators of the deed. The weight of the credible evidence supports the finding that on the night of the parents' visit to Respondent's home, Respondent knew that the victim had been wrestled to the bed, had had his pants pulled down exposing his buttocks, and that a bottle may have been involved at or near the student's rectum. The bottle portion of the assault was stated as a possibility as the victim's parents at that time had not confirmed whether or not the bottle was used or merely threatened. Nevertheless, when Respondent reported the incident the next day to the athletic director, the possibility of a bottle being involved in the assault was omitted. Since Respondent did not disclose the full details of the assault, including the fact that a bottle may have been involved, to the athletic director, the punishment initially to be administered to the student perpetrators did not satisfy the victim's parents when they learned what would be imposed. Instead, they demanded that more harsh consequences befall the students who were involved in the assault. Their report of the incident conflicted with Respondent's story to the athletic director. It soon became clear that while the parents may have been willing to spare their son the embarrassment of the bottle portion of the story when they believed the penalty imposed against his attackers would be great, they were not going to let the perpetrators skate by on the penalty initially chosen. Thus Respondent's willingness to leave out the bottle portion of the assault became critical to the matter. In fact, the omission of the bottle portion of the incident became the key allegation against Respondent. The superintendent's letter setting forth the allegation against Respondent stated, in part: On April 8, 2008, you told Athletic Director, Michael Stutzke, that an incident occurred during an out of town baseball tournament that involved wrestling with someone's pants being pulled down. When you made that statement you knew that was not the complete story, because the night before, you met with a student's parents who told you their son's (the victim) pants were taken down and a bottle put near his rectum during the course of this incident. This is the same incident you described to Mr. Stutzke as mere wrestling and someone's pants pulled down. The credible weight of the evidence supports the finding that Respondent knew he had not given Mr. Stutzke the complete story of the incident. Although Respondent at that time may not have known for a fact that a bottle was used in the commission of the assault, he knew that the rumor of the bottle's use was in question. An investigation of the matter would have proved or disproved the bottle portion of the story. Respondent did not, however, reveal that portion of the allegations to school authorities. Although Respondent may have entertained the misguided notion that he was protecting the victim from embarrassment by not disclosing the full details of the assault, his failure to make school officials aware of the incident and the potential allegation of the bottle demonstrates a failure to fully and honestly conduct himself professionally. Respondent has enjoyed a long, successful, and popular run as a baseball coach in the district. At the end of the day, however, responsibility for the safety and well-being of his team rested with him. That job is unrelated to the success of the team or their desire to play in tournaments. Moreover, school authorities must be able to rely on a coach's veracity to completely and accurately report any incident that may occur during a school-sanctioned event. The stipulated facts of the parties provided: On March 31, 2008, George Young was the head coach for the Sebastian River High School Varsity Baseball team. On March 31, 2008, the Sebastian River High School Varsity Baseball team attended a baseball game in Plantation, Florida. Kevin Browning, Director of Human Resources, investigated allegations of an incident that occurred on March 31, 2008 involving the baseball team. Browning released his Report and Recommendation on June 26, 2008. Young was given a three day suspension, which is the subject of the appeal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a Final Order sustaining the suspension of Respondent and denying his claim for salary reimbursement. DONE AND ENTERED this 29th day of July, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2009. COPIES FURNISHED: Mark Wilensky, Esquire Dubiner & Wilensky, P.A. 515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401-4349 Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 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 Harry J. La Cava, Ed.D Superintendent Indian River County School Board 1900 25th Street Vero Beach, Florida 32960-3150
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in May 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Sharon L. Pennington, contends that in September 1994, Respondent, School Board of Lake County (School Board), failed to accommodate her handicap, and it then unlawfully terminated her from employment as a food service assistant on account of her hearing disability. The School Board denies the charges and contends instead that it offered Petitioner an alternative position in the school cafeteria, but when Petitioner never responded to that offer, and she failed to report to work, it terminated her from employment. After a preliminary investigation was conducted by the Commission on Human Relations (Commission), which regretably took more than three years to complete, the Commission issued a Notice of Determination: No Cause on April 27, 1998. Petitioner, who is now forty-six years of age, suffered from hearing loss due to an episode of the measles at age three. She has worn a hearing aid in her left ear since the fifth grade and hearing aids in both ears since 1976. In 1993, she was diagnosed as having profound hearing loss. As such, she is a handicapped person within the meaning of the law. However, she did not disclose this handicap to her employer until 1994. Petitioner began working part-time for the School Board in September 1984 as a food service assistant in the cafeteria at Fruitland Park Elementary School in Fruitland Park, Florida. She became a full-time employee in 1986 and continued working in that capacity until her termination on September 13, 1994. Although not specifically established at hearing, it can be reasonably inferred from the evidence that the School Board employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. On January 5, 1994, Petitioner was given a leave of absence from work due to a back injury suffered while lifting a box of vegetables. She filed a worker's compensation claim and remained out of work due to that injury until March 21, 1994. While investigating that injury, the School Board learned for the first time that Petitioner had a hearing disability. Although her treating physician authorized her to return to work on March 21, 1994, Petitioner requested a second medical leave of absence for the remainder of "this school year" due to "loss of hearing in both ears." She supplied a note from a doctor to this effect. On May 10, 1994, the principal of the school, Ted Wolf, authorized Petitioner to take unpaid leave from March 7 through May 31, 1994, or the remainder of the 1993-94 school year. Petitioner contends that the School Board misunderstood the note from her doctor, and that he intended that she be allowed to take a leave of absence for not only the remainder of school year 1993-94, but also for the entire school year 1994-95. There is nothing of evidence to support this contention, and the doctor's note stipulated into evidence suggests otherwise. On April 25, 1994, Petitioner sent the following letter to Craig Longacre, risk manager for the School Board: I am writing to you to let you know I do plan to return to work this fall. However, I am still interested in the Jack Rabbit Job. Should a position ever does [sic] come open, I do hope that you will keep me in mind as I do know I can do that job. I'm an honest person, perhaps too honest. I'm trustworthy, I do my job. I've been interviewed with Vocational Rehab. last Thurs, 4-20-94. Mrs. Bateman explained to me that whomever hires me regardless of my hearing disability and they give me a job, they would get a tax credit for employing me. I will remain at Fruitland Pk. Elem. Cafeteria until I hear from you. I do hope you will not pass this over me. I know I can do Jack Rabbit. Please keep me on your list for this. During this same period of time, Petitioner orally advised the School Board that the noise levels in the dish room of the cafeteria were too high and aggravated her tinnitus. Accordingly, she asked that the School Board place her in another position. In response to Petitioner's letter, and to satisfy her concern regarding noise levels in the cafeteria, Longacre directed that a Sound Measurements Study for the cafeteria be prepared by an ESE Program Specialist, MeShelda Mosley. Using a Quest Sound Meter to measure sound in decibels in various locations throughout the cafeteria area, Mosley determined that the noise levels in the serving line were lower than in the dishroom, where Petitioner had been working. This advice was memorialized in a report dated May 11, 1994. After receiving this report, James R. Polk, Jr., Director of Human Resources, conferred with Mosley and Dr. Ziegler, an audiologist, and all agreed that the noise levels in areas other than the dishroom of the cafeteria were low enough so that Petitioner could continue working in another area of the cafeteria. On May 14, 1994, Polk responded to Petitioner's letter with advice that "at no time [has the Board] considered terminating [Petitioner]," and that it was "very much aware of [her] problem and want[ed] to find a solution that will be satisfactory to both [her] and to the [School Board]." The letter added that because Petitioner had been satisfactorily employed in a food service position for a long time, the School Board's first option "[was] to find a position in food services that will work at that school." It reaffirmed the Board's prior offer to place her in a position which required her to prepare salads rather than working in the dish room. Polk went on to say that if that position did not work out, the School Board would look at "other options." Finally, in response to a request by Petitioner that she be reassigned to the position of Jack Rabbit mail courier, Polk stated that there was no current vacancy in that position, and he could not displace a current employee to accommodate her. If, however, a vacancy occurred in the future, he promised he would consider Petitioner for the position. On May 17, 1994, Petitioner sent a letter to the school superintendent, Dr. Thomas Sanders, concerning the status of her health insurance and the use of the Sick Leave Bank while on a leave of absence. In addition, she pointed out that she had asked for another position, "should anything come open" when she returned, because the "cafeteria noise is bad for me." In response to that letter, on May 24, 1994, Polk and Longacre jointly sent a letter to Petitioner by certified mail in which they again "assured [her] that at no time has the [School Board] considered terminating [Petitioner]" and that "other options [were being] considered." Petitioner contends that she returned to work in a volunteer capacity for several hours in May 1994 to determine if she could satisfactorily handle the noise levels of another cafeteria position. Based on that experience, she says she could not "handle it." However, there is no documentary evidence, such as sign-in sheets, to support this contention; the cafeteria supervisor and two co-workers denied that she returned to work as a volunteer during that time period; and it was established that it is contrary to school policy for a person on medical leave to return to work in any capacity. At hearing, Petitioner produced a copy of a letter dated "July 94" which she says was sent to Wolf's attention. In it, Petitioner advised him that she would "not be able to return to the lunchroom." She asked that he "look into" the possibility of her "doing the bookwork" in the lunchroom. If that was not possible, then until "anything else comes along," Petitioner asked that he "extend [her] leave of absent [sic] without pay, as it's listed in the School Board policy that if you work 3 yrs or more you can be granted up to 1 yr leave of absent [sic]." She added that if Wolf desired a doctor's note, he would have to go through her attorney in Ocala, who was then representing her on a worker's compensation claim. Wolf, however, never received the letter. On or about the same time, Petitioner says she sent a similar letter to the residence of Carla Lennon, the new cafeteria supervisor, in which she advised Lennon that she would not be able to accept the alternative position offered by the School Board due to a "fear for [her]self and others." She asked that consideration be given to allowing her to do the "manager's bookwork and all the inventories." She also advised that a doctor's note could be obtained "through [her] attorney" in Ocala. Like Wolf, Lennon never received the letter. On August 5, 1994, Wolf sent Petitioner the following letter: Greetings! It is that time of the year again. All Food Service Assistants are to report to work on August 12, 1994. Please plan on meeting with Carla Lennon, our new Food Service Manager at 7:00 a.m. I am looking forward to a great year. Hope your summer was restful. Petitioner received this letter on August 9, 1994. The following day, Petitioner sent a letter to Dr. James Hardy, an ear, nose, and throat physician, requesting that he prepare a note indicating her work restrictions. Dr. Hardy sent Petitioner a letter on August 12, 1994, stating that Petitioner "is capable of working at a job that does not require oral communication." There was no mention that Petitioner could not return to work during the following school year or that she could not tolerate the noise levels in the salad preparation area of the cafeteria. Petitioner did not provide a copy of this letter to the School Board. When Petitioner did not return to work on August 12 as directed by the school principal, on August 18, 1994, Wolf sent Petitioner the following letter: As of this date, August 18, 1994, you have not returned to work. I sent a letter on August 5, 1994 stating you were to return to work on August 12, 1994. When you failed to report, I called you to discuss your intent. You informed me you would have a doctor's statement on Monday, August 15, 1994. This has not been received as of this date. I attempted to provide an alternative work assignment in the lunchroom, such as making salads and working in the serving line. You once again informed me this would not be suitable. I have made every possible effort to accommodate you within the confines of your job responsibilities in the lunchroom. As a result, I am recommending to Dr. Sanders, your employment with the Lake County School System be terminated. This recommendation is based on School [B]oard [P]olicy: Absence Without Leave for Non- Instructional Personnel. A copy of this policy is attached. Petitioner acknowledges receiving this letter. On August 23, 1994, the superintendent sent Petitioner a letter by certified mail which advised her that he intended to accept the principal's recommendation and recommend Petitioner for dismissal at the next School Board meeting on September 13, 1994. Before such action was taken, however, Petitioner was offered the right to an informal hearing to refute the charges. Although Petitioner received both letters, she did not contact the School Board to see if her attorney had provided it with a copy of a doctor's note. She also did not exercise her right to have an informal hearing to refute the charges or seek a resolution of the controversy. Instead, she followed the advice of her worker's compensation attorney who surprisingly advised her to let the School Board terminate her. By action taken on September 13, 1994, the School Board terminated Petitioner's employment effective at the end of the workday on September 13, 1994, for violating School Board Policy GDBD - Absence Without Leave for Noninstructional Personnel. This action was taken on account of Petitioner's failure to comply with the foregoing policy and not because of any handicap. Although not pled in her Charge of Discrimination or Petition for Hearing, Petitioner has requested "payment for mental anguish of $200,000.00," "payment for loss of wages since her termination [of] $44,715.00," and "payment for loss of retirement of $100,000.00" and that the School Board "pay the taxes." Except for Social Security disability benefits, Petitioner has apparently been without income since her discharge in 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998. COPIES FURNISHED: Sharon L. Pennington 2512 Tecumseh Avenue Leesburg, Florida 34748 Stephen W. Johnson, Esquire M. Catherine Wellman, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether there is sufficient "just cause" to warrant termination of Respondent's annual contract of employment with the Monroe County School Board.
Findings Of Fact Based on the Findings of Fact and Burke's prior disciplinary record, the undersigned concludes that Burke's chronic misconduct and series of continuing disciplinary problems on February 23, 2015 ( para. 9o.); May 7, 2015 ( para. 9q.); and May 12, 2015 ( para. 9r.), as well as Burke's performance evaluation from April 9, 2015 ( para. 9t.), permitted the School Board to dispense with the progressive discipline steps under the CBA since immediate and\or stronger action was reasonably necessary under Article V, Section 1B. of the CBA, and "just cause" existed for her termination. Burke's unabated misbehavior, even after several sit- downs and fair and repeated warnings, constituted sufficient legal grounds to permit the School Board to omit or skip steps in the progressive discipline process. See, generally, Quiller v. Duval Cnty. Sch. Bd., 171 So. 3d 745 (Fla. 1st DCA 2015) (concurring opinion, Osterhaus, J.) (The employee's repeated use of profanity and derogatory language, her discipline history, and her failure to modify her conduct warranted skipping steps of the progressive discipline policy.). Quiller was decided the summer of 2015 and provides an analogous set of circumstances. Relevant portions of Judge Osterhaus's concurring opinion are instructive and worth repeating here: By highlighting Ms. Quiller's rhetorical and disciplinary history, the Final Order disputes the Recommended Order's conclusion that "[t]here is no proof that the behavior at issue constitutes [5] 'severe acts of misconduct.'" Though the definition of "more severe acts" in the collective bargaining agreement (CBA) was left undefined, the School Board's human resource officer testified at the hearing that the School Board determines appropriate discipline based on how many times an incident has occurred, who the witnesses are, the severity of the incident, the amount of time that has occurred between incidents, and the employee's willingness to modify his or her behavior. Her testimony continued that "some of the most severe conduct" includes instances when an employee has failed to modify his or her more serious behavior after having been warned. In turn, the School Board's conclusion in this case was that Ms. Quiller's repeated use of profanity and derogatory language, her discipline history, and her failure to modify her conduct warranted skipping step three of the progressive discipline policy. So there wasn't "no proof" that Ms. Quiller's behavior constituted "more severe acts of misconduct" for purposes of the CBA, even if the ALJ thought that her acts weren't particularly severe. Deference is due to the School Board's decision with respect to its personnel decisions. Courts [6] have little room to define what constitutes "more severe acts of misconduct" as against those responsible for running the county's schools. See, e.g., Dep't of Prof. Regulation v. Bernal, 531 So. 2d 967, 968 (Fla. 1988) (giving great discretion to boards to determine discipline). Courts will not substitute their judgment "if valid reasons for the board's order exist in the record and reference is made thereto." Id. at 968. To that end, the School Board's identification of Ms. Quiller's bad language, discipline, and failure to modify her behavior probably supports the departure it took from the ALJ's recommended penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board accept and implement the superintendent's recommendation to terminate Respondent, Sue Burke. DONE AND ENTERED this 12th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2015.
The Issue As to Case 12-2570TTS, whether the Broward County School Board (School Board) has good cause to suspend the employment of Sarena Stewart (Respondent), a classroom teacher, for three days as alleged in the Administrative Complaint filed by the School Board on July 30, 2012. As to Case 12-4137TTS, whether the School Board has good cause to terminate Respondent's employment, as alleged in the Administrative Complaint filed by the School Board on December 21, 2012.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. New River is a public school in Broward County, Florida. During the 2011-2012 school year, Respondent was employed as a math teacher at New River pursuant to a professional service contract. Prior to the 2011-2012 school year, Respondent was assigned to teach math at McArthur High School (McArthur). Respondent has been employed by the School Board since 2006. Respondent received satisfactory performance evaluations for each school year of her employment prior to the 2011-2012 school year. During the 2011-2012 school year, Melinda Wessinger was the principal of New River, and Taina Sierra was an assistant principal. Ms. Sierra's administrative responsibilities included oversight of the math department. The 2011-2012 school year was Ms. Wessinger's first year at New River. Ms. Sierra has been at New River for six school years. CASE 12-2570TTS For the 2011-2012 school year, August 22, 2011, was the first day of school for students. Teachers were required to report to work on August 15, 2011, for a week of preplanning. During the preplanning week, teachers attended faculty meetings and readied their classrooms for the coming school year. On August 15, 2011, the work hours for the preplanning week and for the upcoming school year were discussed at a faculty meeting. Also discussed was the sign-in and sign-out requirements for the preplanning week. Teachers were required to sign-in when they arrived at school and sign-out when they left the facility for any reason. On August 16, 2011, Respondent asked for and received permission from Ms. Sierra to leave New River so she could go to McArthur to retrieve certain materials she had left at her former school. Respondent did not follow the sign-out procedure when she left New River. On either August 16 or 17, 2011, Respondent again asked for, and received, permission from Ms. Sierra to leave New River so she could go to McArthur to retrieve other materials. Respondent did not follow the sign-out procedure when she left New River. One day during the preplanning week, Respondent was tardy arriving to school. On August 19, 2011, the last day of preplanning, Ms. Sierra had a conference with Respondent during which Ms. Sierra told Respondent to adhere to the sign-in and sign-out procedures and to arrive at work on time. Ms. Sierra did not consider that conference to be disciplinary. After this conference, Respondent knew, or should have known, New River's leave policies and its sign-out policy. Respondent had ready access to the faculty handbook through a link on the CAB (Communication Across Broward) system. When school started on August 22, 2011, teachers did not have to sign-in when they arrived at school. However, they were required to sign-out if they left school early. The New River faculty handbook contained the following as to signing out before the end of the school day: All personnel must get permission from the grade level assistant principal before leaving campus for any reason. This includes school related in-service, county meetings, school visits, etc. To leave campus for any personal reason, permission must be obtained from an assistant principal in advance. An emergency sign in/out sheet will be available at Office Manager's desk. If you are leaving during the day for personal reasons/doctor's appointments, it is your responsibility to obtain coverage for your classes. Please notify your administrator in the front office, via CBA, the teacher(s) who will cover your classes. The time you take off will be deducted from your accumulated personal sick or personal leave time. On September 16, 2011, Ms. Sierra met with Respondent to discuss complaints from parents and students. Ms. Sierra directed Respondent to cease and desist any inappropriate behavior toward students as a violation of the code of ethics and that she was to treat students with respect at all times. On October 28, 2011, Ms. Sierra had a pre-disciplinary conference with Respondent based on Respondent's continued failure to follow directives, including directives to comply with all processes and procedures regarding class coverage, absences, and embarrassing and/or disparaging students. As a result of that meeting, Ms. Sierra recommended that Respondent be suspended for one day without pay. That recommendation was approved by the School Board on December 6, 2011. Respondent served that one-day suspension without requesting a formal administrative hearing to challenge that action. Article 23 of the CBA pertains to “Leaves,” including sick leave and personal leave. Section A.2 of Article 23 provides that employees shall be granted up to six days each school year for personal reasons. That provision also provides that personal reasons leave shall not be granted on the day preceding or following a holiday. On November 30, 2011, Respondent put in for personal leave beginning on December 14 through 16, 2011. These dates immediately preceded a school holiday (school winter break was December 19 through 30). Ms. Sierra and Ms. Wessinger explained the CBA provision to Respondent and told her that she could not have personal leave. Respondent then explained that she was having a medical procedure performed.1/ They told her to change her leave from personal leave to medical leave. Ms. Sierra and Ms. Wessinger also told her that they needed a doctor's note excusing the absence. There was no particular form required for the doctor's note. On January 3, 2012, Ms. Sierra sent a follow-up email to Respondent informing her that she had not changed the leave request from personal leave to sick leave as she had been directed. Respondent responded that she had changed the leave request and stated that the change could be verified through the School Board's “smartfind” computer program. Respondent's representation to Ms. Sierra was false. Respondent had not changed her leave request.2/ In addition to her planned absences from December 14 through 16, 2011, Respondent called in sick on December 12 and 13, 2011.3/ On these two days, Respondent called into the smartfind system at 8:00 a.m. and 8:21 a.m., respectively. Despite having been repeatedly told to comply with policies and procedures relating to absences, these calls were not in compliance with New River's faculty handbook. A teacher who called in sick after 6:00 a.m. was required to call the substitute coordinator's (Nicole Armstrong) direct line, which gives a caller her voicemail should the coordinator not be at the school or at her desk. Respondent's failure to comply with the call-in procedure resulted in Ms. Armstrong’s having to scramble with very little time to find coverage for Respondent's classes on December 12 and 13, 2011. Teachers at New River are required to leave emergency lesson plans with Ms. Armstrong in case of unplanned absences. Respondent had provided emergency plans earlier in the year, but as of December 12 and 13, 2011, those emergency plans had been used and not replaced. Consequently, there were no emergency plans for December 12 and 13. Moreover, Respondent did not comply with the procedures for leaving lesson plans for planned absences for her absences on December 14 through 16. Prior to January 5, 2012, Respondent had brought in two notes addressing her need to be absent December 12-16, 2011, for medical reasons. Both notes were vague. On January 5, Ms. Wessinger and Ms. Sierrra met with Respondent to discuss with her the need for a clear doctor's note. During this meeting, they repeated that Respondent was to follow all policies, procedures, and directives given by the New River administration. Later that day, Respondent left New River before the end of the school day without following the sign-out policy. Respondent left early to get an acceptable note from her doctor, which she brought in the next day. Notwithstanding her need to obtain a doctor's note, Respondent failed to comply with the directives given her by Ms. Wessinger and Ms. Sierra earlier that day. Thereafter, Ms. Sierra recommended that Respondent be suspended without pay for three days for gross insubordination. That recommendation underpins Case No. 12-2570TTS. CASE 12-4137TTS On January 23, 2012, Respondent confiscated a cell phone from N.D., a male student, during her fifth-period class. Respondent placed the cell phone in her desk drawer with the intention of turning the cell phone in to the office after class. At the end of that class, N.D. removed the cell phone from Respondent’s desk without permission and reported to his sixth-period language arts class taught by Tommy Moore. After the start of sixth period, Respondent realized that the cell phone had been removed from her desk drawer. Respondent went to Mr. Moore’s class. There is a conflict in the evidence as to what occurred next. The greater weight of the credible evidence established that Respondent knocked on the door to Mr. Moore’s classroom. Mr. Moore opened the door for Respondent. Respondent entered the classroom where she remained by the doorway. Respondent tried to get N.D. to come to her, but he refused to do so. Respondent asked N.D. in a loud voice to give her the cell phone. A loud argument broke out between Respondent and N.D. Another male student joined in the argument. Respondent and the students engaged in name calling with the terms “bitch” and “bum” being used. Petitioner failed to establish that Respondent used either term. Respondent retrieved the cell phone and left Mr. Moore’s classroom. The argument lasted at least ten minutes and completely disrupted Mr. Moore’s class. Mr. Moore was unable to regain control of his class and was unable to complete the lesson he had started before Respondent came to his classroom. Mr. Moore did not try to stop the argument between Respondent and the two students. N.D. did not appear to be embarrassed or upset because of the argument he had with Respondent. None of the students appeared to be frightened or upset during the argument. After leaving Mr. Moore’s class, Respondent went to a math department meeting chaired by Ms. Stephanie Tegreeny. Ms. Tegreeny had completed her presentation to the other math teachers by the time Respondent arrived. Ms. Tegreeny repeated her presentation for Respondent. After that meeting, Respondent took N.D.’s cell phone to the office. Prior to the start of school on the morning of January 24, 2012, Robin Terrill, a school volunteer, and Mr. Moore were in the media center making copies. Respondent came into the media center and in a loud, rude, and vulgar fashion criticized the school administration. Respondent described the school administration in profane terms, including the “f” word. There was a conflict in the evidence as to whether students overheard Respondent’s rant. The greater weight of the credible evidence established that students were present in an area that they could have overheard Respondent. Later in the morning of January 24, 2012, Mr. Moore contacted Ms. Sierra to inform her of Respondent’s conduct in his classroom the day before. Later that day Ms. Sierra asked Respondent about her conduct in Mr. Moore’s classroom, and she discussed with Respondent what had been reported to her. Prior to the start of school on January 25, 2012, Mr. Moore was walking down the stairs from his classroom to the main level with a student he had been tutoring. Respondent confronted Mr. Moore about his report to the administration of the incident in his classroom on January 23. This confrontation was clearly unwelcomed by Mr. Moore, who testified that he felt “agitated,” “stressed,” and “uncomfortable.” After that meeting on the stairs, Respondent stopped Mr. Moore again to ask what he knew about the administration’s investigation into the incident in his classroom. Mr. Moore thereafter altered his schedule to avoid Respondent. The School Board and the teacher’s union have entered into a CBA applicable to this proceeding. Sections A.1.a. and of Article 18 of the CBA provides for progressive discipline, in part, as follows: Progressive Discipline: Any discipline of an employee shall be for just cause. The parties agree that the concept of just cause embodies the principles of progressive discipline under the circumstances. Disciplinary procedures may include but are not limited to: verbal/written reprimand, suspension, demotion and termination. . . . The School Board’s Policy 4.9 provides certain “Disciplinary Guidelines” and is part of the record of this proceeding as Respondent’s Exhibit 2. Those guidelines are hereby incorporated in this Recommended Order by reference. The School Board’s Policy 5.9 prohibits bullying, which is defined by the policy as follows: “Bullying” means systematically and chronically inflicting physical hurt or psychological distress on one or more students or employees. It is further defined as: unwanted purposeful written, verbal, nonverbal, or physical behavior, including but not limited to any threatening, insulting, or dehumanizing gesture, by an adult or student, that has the potential to create an intimidating, hostile, or offensive educational environment or cause long term damage; cause discomfort or humiliation; or unreasonably interfere with the individual’s school performance or participation, is carried out repeatedly and is often characterized by an imbalance of power. Bullying may involve, but is not limited to: unwanted teasing threatening intimidating stalking cyberstalking cyberbullying physical violence theft sexual, religious, or racial harassment public humiliation destruction of school or personal property social exclusion, including incitement and/or coercion rumor or spreading of falsehoods
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: As to Case 12-2570TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Sarena Stewart for a period of three school days. As to Case 12-4137TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Sarena Stewart for a period of 30 school days. DONE AND ENTERED this 8th day of August, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2013.
The Issue Whether the Respondent's employment with the School Board of Dade County should be terminated.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Dade County School Board is responsible for operating, controlling, and supervising all public schools within the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997). Ms. Scott is employed by the School Board as a custodian. She began working for the School Board in 1990 as a part-time food service worker at South Dade, and, in early 1992, she began working at South Dade as a full-time custodian. Custodians are classified by the School Board as maintenance workers, and Ms. Scott was a member of AFSCME at all times material to this action. The school's head custodian is responsible for overseeing the day-to-day performance of the custodians, which includes assigning duties to each custodian and developing a schedule for each custodian identifying the tasks that must be accomplished during specified blocks of time. The schedule is approved by the principal of the school. John Alexander is, and was at all material times, the head custodian at South Dade and Ms. Scott's immediate supervisor. Ms. Scott's job responsibilities and duties included "policing" 2/ all ten girls' restrooms after each class change; policing the girls' locker room; policing certain other areas, including designated corridors, the auditorium lobby, the clinic, and the band area; cleaning five girls' restrooms after 2:00 p.m.; cleaning designated cafeteria windows; removing graffiti from walls, mirrors, and corridors as needed; cleaning and disinfecting the drinking fountains in all corridors; cleaning graffiti off walls and doors in the ten girls' restrooms; and cleaning, dusting, and mopping the audio-visual room. Ms. Scott was also expected to respond to emergencies. These duties were the same as those assigned to the female custodian whom Ms. Scott replaced and as those currently being performed by the woman who replaced Ms. Scott at South Dade. Ms. Scott's training consisted, first, of working for several weeks with the female custodian she was hired to replace. Then, after Ms. Scott's predecessor retired, Mr. Alexander worked with her for approximately two weeks. Mr. Alexander noticed problems in her job performance shortly after Ms. Scott began working as a custodian. In a memorandum dated May 12, 1992, Mr. Alexander identified two specific incidents when Ms. Scott refused to follow his instructions. He notified Ms. Scott in the memorandum that he would recommend her termination as of May 19, 1992, during her probationary period, for lack of motivation and failure to perform her job responsibilities. As a result of this memorandum, on May 19, 1992, Ms. Scott, Mr. Alexander and Dr. Paul Redlhammer, the principal of South Dade at that time, met to discuss Ms. Scott's job performance. After this meeting, Dr. Redlhammer sent Ms. Scott a "Memo of Understanding: Job Performance," in which he summarized the reasons for the concern about her job performance and notified her that Mr. Alexander would work with her for two weeks to help her improve her job performance. Mr. Alexander did not notice any improvement in Ms. Scott's work during the two-week period or thereafter. On February 3, 1993, Mr. Alexander had a discussion with Ms. Scott about leaving work early, failing to empty the trash cans in her areas, and failing to clean the floor in the audio- visual room. On May 21, 1993, Mr. Alexander issued a Notification of Written Warning to Ms. Scott regarding her unsatisfactory performance, which included insubordination, disrespect, and improper behavior. Mr. Alexander proposed that Ms. Scott's file be reviewed and that she be given an opportunity to explain her performance. Mr. Alexander intended to recommend her termination from employment. From September 24, 1993, through October 27, 1993, Mr. Alexander kept a log of the time Ms. Scott reported for work and left work each day. The log reflected that Ms. Scott left work thirty to forty-five minutes early on fifteen days during that period, that she took a forty-minute morning break one day, and that she reported for work between one hour and forty minutes and two and one-half hours late on three days. In Ms. Scott's November 15, 1993, annual evaluation, Mr. Alexander rated Ms. Scott poor in the categories of taking lunch and breaks at the proper times, cleaning bathrooms, washing windows, following orders, following work schedules, and working well with other custodians. Mr. Alexander discussed the evaluation and her deficiencies with Ms. Scott, and she acknowledged by her signature that she had seen the written evaluation. Ms. Scott's job performance did not improve during the 1994-1995 school year. Despite being told repeatedly not to do so, Ms. Scott spent inordinate amounts of time talking with school security monitors in the school's corridors and in the school's north parking lot, sometimes spending an hour or more a day in these conversations. During most of that time, Ms. Scott was not on authorized breaks or lunch period. At the same time, Ms. Scott often did not properly police the girls' bathrooms or clean the areas for which she was responsible, and, on several occasions, she refused to obey direct orders from Mr. Alexander. In September 1994, Orlando Gonzalez, the assistant principal at South Dade, scheduled an informal conference with Ms. Scott to discuss the deficiencies in her work performance, including an incident in which Mr. Gonzalez observed Ms. Scott watching television at 9:30 a.m. in the audio visual room. Ms. Scott left the school before the scheduled conference without permission. As a result of this behavior, Mr. Gonzalez requested that Donald Hoecherl, the new principal at South Dade, schedule a formal conference for the record to discuss "serious deficiencies in her job performance." Mr. Gonzalez later withdrew the request for the conference on the record because he thought he could accomplish more by counseling with Ms. Scott informally to help her improve her job performance. Nonetheless, a conference for the record was held by Mr. Hoecherl in November 1994 for the stated purpose of addressing "continuous incidents of insubordination, failure to complete assigned work, and leaving work early." Ms. Scott was advised by Mr. Hoecherl that, if the problems were not resolved, another conference for the record would be held and that he would formally request her dismissal. Ms. Scott refused to sign the conference summary. Ms. Scott's job performance did not improve after the November 1994 conference for the record. Mr. Hoecherl tried to work with Ms. Scott on an informal basis, but his efforts to improve her job performance were not successful. In April 1995, Mr. Gonzalez received complaints from two parents about the lack of cleanliness in the ladies' restroom in an area which Ms. Scott was responsible for cleaning. Mr. Gonzalez told Mr. Alexander to direct Ms. Scott to clean that restroom. The next day, Mr. Gonzalez found that the restroom had not been cleaned. Mr. Gonzalez prepared a memorandum to Ms. Scott directing her to clean the restroom. In June 1995, a Notification of Written Warning was directed to Ms. Scott because she refused to obey direct orders from Mr. Alexander. Ms. Scott's job performance deteriorated during the 1995-1996 school year. On October 5, 1995, a Notification of Written Warning was issued for "[f]ailure to follow and complete assigned work." On November 8, 1995, a conference for the record was held and was attended by Ms. Scott and two representatives of AFSCME, as well as by Mr. Hoecherl, and Mr. Gonzalez. Three issues were discussed: Ms. Scott's direct and implied insubordination when she refused an order by Mr. Alexander to clean up the clinic area after a student became ill and when she twice refused to comply with Mr. Hoecherl's request that she step into his office to discuss the incident; Ms. Scott's pattern of failing to complete her job assignments; and her pattern of loitering on the job by talking to the security monitors in the corridors and in the north parking lot. The written summary of the conference for the record, dated November 13, 1996, included the following: In an effort to resolve these issues the following directives were outlined: Comply with all requests and directives issued by your immediate supervisor or administrator. . . . In regard to this issue failure to comply with the direction of an administrator or immediate supervisor constitutes insubordination and will result in additional disciplinary action. Follow your job assignments as given to you prior to this conference and again at this conference. The cleaning must be performed in a satisfactory manner meeting the requirements to maintain a clean and healthy school setting. Failure to complete your job assignments will result in additional disciplinary action. Refrain from loitering while on the job. You are reminded that you may spend your break and lunch time in dialog with others if you wish. You are not entitled to spend an inordinate amount of time talking and not performing your job assignments. Failure to meet this condition will result in additional disciplinary action. Ms. Scott refused to sign the written summary of the conference. Ms. Scott's job performance did not improve after the conference, and she did not follow the directives outlined for her. She continued to talk with other employees at times when she had no scheduled break; she failed to perform or inadequately performed her assigned tasks; and she engaged in a pattern of arriving at work late without authorization, taking time off during her shift without authorization, and leaving work before the end of her shift without authorization. On or about February 16, 1996, Mr. Alexander attempted to discuss these problems with Ms. Scott. She became angry and belligerent. Mr. Alexander stood in front of his office door to prevent Ms. Scott from going out into the corridor because the students were changing classes and he felt it would not be appropriate for them to see her in that frame of mind, but she left his office anyway. Ms. Scott was immediately summoned for a meeting with Mr. Hoecherl and Mr. Alexander. During the meeting, a school police officer arrived in response to a 911 call, which Ms. Scott had made, accusing Mr. Alexander of restraining her against her will. The police officer determined that there was no basis for this charge, and Ms. Scott left the meeting in an angry and belligerent manner. Mr. Hoecherl referred this incident to the School Board's Office of Professional Standards. An administrative review was ordered, and Mr. Hoecherl was assigned to investigate the February 16 incident. On March 25, 1996, at Mr. Hoecherl's request, he and Ms. Scott met in his office. Mr. Hoecherl explained to Ms. Scott that he was trying to learn what had happened and wanted her to tell him her version of the incident. Ms. Scott became very agitated and left Mr. Hoecherl's office, slamming the door behind her. Her behavior as she left his office was very disruptive, but he nonetheless followed her to her car and asked that she return to his office to discuss the February 16 incident. Her response was belligerent and defiant, and Mr. Hoecherl told her to go home and not return to South Dade for the rest of the day. On the morning of March 26, Ms. Scott reported to work at South Dade. She was told that she had been reassigned to the Region VI administrative office and that she was not to return to the South Dade campus. In accordance with directions he received from the School Board's Office of Professional Standards, Mr. Hoecherl instructed Ms. Scott to report to the personnel director at the Region VI office. At approximately 8:00 a.m. on March 27, Ms. Scott appeared at the custodial office at South Dade. Mr. Hoecherl again told her to report to the Region VI office and provided her with written notification of her reassignment. Ms. Scott reported to the Region VI office, but, a short time later, she left and returned to South Dade. Ms. Scott was again told to leave the school grounds and informed that failure to do so would be considered gross insubordination; she refused to leave South Dade despite repeated orders from Mr. Hoecherl and the school police. Ms. Scott was belligerent and disruptive, and she was placed under arrest by the School Board police. She was escorted out of the school building in handcuffs; Mr. Hoecherl covered her shoulders with a jacket to hide the handcuffs from the students, but Ms. Scott attempted to shrug it off. In a memorandum dated March 28, 1996, to the Office of Professional Standards, Mr. Hoecherl detailed Ms. Scott's poor job performance from January 12, 1996, through March 25, 1996. A conference for the record was scheduled for March 29 at 2:00 p.m. by James Monroe, the Executive Director of the School Board's Office of Professional Standards. Ms. Scott failed to report for the conference even though she was contacted at her home by telephone shortly after 2:00 p.m. and told that they would wait for her for one hour. The conference for the record was rescheduled for April 4, 1996, and the topics to be discussed were identified in the notice as follows: "[Y]our failure to report for a conference on March 29, 1996, at 2:00 p.m., as previously directed . . .; failure to comply with site directives; unauthorized departure from the work site; attendance/performance related issues; medical fitness for continued employment and your future employment status with Dade County Public Schools." During the conference, Ms. Scott was advised that her employment status would be reviewed in light of the facts discussed at the conference, and she was directed to report to the Region VI office pending formal notification of the decision of the Superintendent of Schools and to perform all tasks and duties assigned to her. During the time she was assigned to the Region VI office, from April 1996 until September 1996, Ms. Scott disregarded instructions and directives from her supervisors, she failed to perform her job responsibilities or performed them inadequately, and she was absent from work a number of times without authorization. From September 1995 to September 1996, Ms. Scott was absent from her job without authorization for 20 days. She was absent from her job without authorization for three consecutive workdays from March 28 through April 1, August 23 through September 5, 1996. 3/ Ms. Scott was suspended by the School Board at its September 11, 1996, meeting. Mr. Alexander, Mr. Gonzalez, and Mr. Hoecherl tried for several years, through numerous informal memoranda and discussions, to help Ms. Scott bring her job performance up to an acceptable level. Ms. Scott was given several formal written notifications and warnings about the deficiencies in her job performance, and three formal conferences for the record were held to put Ms. Scott on notice of the perceived job deficiencies and of the complaints about her work and to allow her to explain the situation from her perspective. Ms. Scott did not comply with the directives for corrective action developed during the conferences for the record, and her attitude and job performance generally deteriorated from 1992 until September 1996, when she was suspended and dismissal proceedings instituted. The evidence presented by the School Board is sufficient to establish that Ms. Scott's job performance was deficient in that she failed to perform or inadequately performed her assigned job responsibilities; that on numerous occasions she refused to comply with requests and direct orders from the head custodian, from the assistant principal, and from the principal of South Dade; that she accumulated excessive unauthorized absences; and that she abandoned her position with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County issue a final order terminating Gale Scott's employment. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and, if so, what relief should be granted.
Findings Of Fact Petitioner is a Black West-Indian male. Respondent is a political subdivision of the State of Florida responsible for operating the public schools in Broward County. Petitioner obtained a temporary teaching certificate from the Florida Department of Education in 2017. In October 2017, Petitioner was hired by Respondent as a teacher at Walker Elementary School. As a new teacher, Petitioner was a contract employee subject to a probationary period of one school year. During the probationary period, Petitioner could be dismissed without cause or resign without breach of contract. Petitioner worked at Walker Elementary School, where he did not have his own classroom, but worked with special-needs children in different classrooms, until the end of the 2017-2018 school year. There were no teaching positions available at that school for the 2018-2019 school year. In August of 2018, Petitioner was transferred by Respondent to Mirror Lake, where he filled a first-grade teaching vacancy. Andrea Gresham was the team leader for first-grade teachers at Mirror Lake. As a new teacher, Petitioner was assigned a mentor to assist him in acclimating to the duties of his position. In addition to being the team leader for all first-grade teachers at Mirror Lake, Ms. Gresham was also Petitioner’s designated mentor. Petitioner reported for work at Mirror Lake on August 7, 2018. At that time, Ms. Gresham took Petitioner on a tour of the campus. She also provided Petitioner with sample lesson plans and homework for the students. Throughout the week, Petitioner prepared for the first day of school for students with Ms. Gresham’s help. These preparations included Ms. Gresham reviewing procedures related to beginning-of-year testing, student homework, teacher planning, and student dismissal at the end of the school day. It was Ms. Gresham’s habit to keep dated notes relevant to her duties as a mentor and team leader. As a best practice, she regularly met with Principal Veliz to discuss the progress of new teachers. Ms. Gresham kept contemporaneous notes of her interactions with Petitioner and kept Principal Veliz advised of her observations. Ms. Gresham observed that Petitioner was not engaged within the team of first-grade teachers and had a difficult time grasping school procedures despite her attempts to guide him. The typical first-grade student is six years old at the beginning of the school year. Given how young these students are, the protocol at Mirror Lake requires teachers to take extra care to ensure that the students are directed to the correct mode of transportation during dismissal. Ms. Gresham explained the dismissal procedures and emphasized their importance to Petitioner on more than one occasion leading up to the students’ first day of school. Each first-grade student is given a lanyard that is color-coded to correspond to that student’s teacher. Teachers are responsible for writing each child’s mode of transportation, as provided to the teacher by the child’s parents, on his or her lanyard every day. At the end of the school day, the children are sorted by their mode of transportation and escorted by a designated teacher or paraprofessional. The students are categorized as: car riders, bus riders, walkers, or attendees of the on-site after-school program. August 15, 2018, was the first day of the school year for students at Mirror Lake. At the end of the school day, Petitioner, along with all of the other first-grade teachers, was responsible for assisting his students in reporting to the appropriate location for their respective modes of transportation. On August 15, 2018, Petitioner and Ms. Gresham were both assigned to the car-rider group. While Petitioner and Ms. Gresham were in the car-rider pickup area, Ms. Gresham became aware that a student was missing when a visibly upset parent exited his vehicle having learned that his child was not present for pick-up. Ms. Gresham sought help from the school resource officer and other teachers in an effort to locate the missing student. Principal Veliz testified credibly that this was the first and last time a student was unaccounted for at dismissal at Mirror Lake. Ms. Gresham asked to see the transportation log that Petitioner had compiled for his students to determine how the child was supposed to go home and where the mistake may have occurred. In reviewing Petitioner’s transportation log, Ms. Gresham noticed that the log had some children’s names listed under two different modes of transportation for the same day. As a result, Petitioner’s transportation log did not add any clarity to the situation. Meanwhile, teachers continued to search the campus for the missing student and the school resource officer escorted the father of the missing student to the office to speak with Principal Veliz. Once the student dismissal process was complete for the day, Principal Veliz convened a faculty meeting. During the meeting, the faculty learned that a second student from Petitioner’s class was missing. Principal Veliz adjourned the faculty meeting and assembled the team leaders in the office to assist in locating the two missing students. Petitioner returned to his classroom and did not join the effort to locate the missing students. The team leaders proceeded to call private daycares to ask if the missing students may have been transported to such a facility by mistake. Through these phone calls, both of the missing students were located at the same daycare. Thereafter, the children were reunited with their parents. Principal Veliz met with the parents of the children who had been mistakenly sent to the wrong location on August 15, 2018. Principal Veliz personally paid for the daycare center’s charges with respect to one of the students who had been inadvertently sent there. Principal Veliz testified that the parents were upset that their children had been misplaced and that the parents of one of the children requested a transfer to another first-grade teacher. Ms. Gresham had the opportunity to examine the lanyard belonging to one of the students who had gone missing during dismissal. She observed that Petitioner had written on the lanyard that the student was to ride the bus that day, although the parents had previously informed Petitioner that the student was to be picked up by car. In conducting a routine observational visit to Petitioner’s classroom during the first week of school, Principal Veliz observed conditions that she considered of urgent concern with respect to Petitioner’s academic practices and overall classroom management. She observed a lack of structure, including students in Petitioner’s class wandering around the room and playing with pencils as though they were swords without any redirection. Principal Veliz also observed that Petitioner was using obsolete and ineffective teaching methods. Principal Veliz contacted the school district’s employee relations and talent acquisition office to discuss Petitioner’s employment status. Principal Veliz was notified that Petitioner was still within his one-year probationary term, and that his employment could be terminated without a formal hearing or progressive disciplinary measures. Principal Veliz made the decision to terminate Petitioner’s employment prior to the end of his probationary status based on his unsatisfactory performance. Principal Veliz obtained a form letter from the school district’s human resources department, which she modified to fit Petitioner’s circumstances. The letter was dated August 23, 2018. The letter stated that Petitioner’s name would be submitted to the next School Board meeting for termination of employment during a probationary period and that Petitioner could choose to resign in lieu of termination. Petitioner chose not to sign the document. Petitioner’s employment was terminated at the next meeting of the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Rudyard Julius 19101 Northwest 11th Street Pembroke Pines, Florida 33029 (eServed) Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
