The Issue Whether Petitioner, Sarasota County School Board (Petitioner or School Board), had just cause to terminate Ernest Curry (Respondent) for misconduct in office.
Findings Of Fact Petitioner is responsible for operating, controlling, and supervising the public schools in the School District. See § 1001.32(2), Fla. Stat. At all times material, Respondent was employed as a groundskeeper for the School Board. Groundskeepers are educational support employees. On September 2, 2020, while at work at Tuttle Elementary School, Respondent submitted to a reasonable-suspicion urine drug screen. The final test results returned positive for marijuana. As an educational support employee, Respondent’s employment with the School District is governed by the Collective Bargaining Agreement. 1 Petitioner’s Exhibit 1 is a copy of an excerpt of the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the School Board of Sarasota County, FL (Collective Bargaining Agreement). The undersigned takes official recognition of the entire Collective Bargaining Agreement, which may be accessed at https://www.sarasotacountyschools.net/cms/lib/FL50000189/Centricity/Domain/143/2019- 20%20Classified-Final-Rev%20052620.pdf. (Last visited Jan. 6, 2021).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 7th day of January, 2021. COPIES FURNISHED: Ernest Curry 3408 16th Court East Bradenton, Florida 34208 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. 500 South Washington Boulevard, Suite 400 Sarasota, Florida 34236 (eServed) Dr. Brennan W. Asplen, III, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34321-3365 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Respondent Respondent began working for the School Board approximately 12 years ago. He is presently under suspension pending the outcome of this disciplinary proceeding. For the duration of his employment with the School Board, he has done roofing work. He was hired as a Roofer II, was subsequently promoted to a Roofing Foreperson position, and then took a voluntary demotion back to a Roofer II position, the position he currently occupies. The School Board's job description for Roofer II provides, in pertinent part, as follows: BASIC OBJECTIVES The Roofer II (journey person) will work independently under the guidance of a foreperson or other supervisory personnel and in accordance with the standard practices of the roofing trade. Journey person level work includes, but is not limited to: installing, altering, maintaining and repairing all hot and/or cold roofing systems and their related components; using knowledge and experience of the trade to determine a method or to devise a means to accomplish the assigned job; and interpreting technical data from sketches, blueprints, schematics and service manuals. . . . PHYSICAL REQUIREMENTS This is very heavy work which requires the following physical activities: climbing, balancing, bending, stooping, kneeling, crouching, twisting, reaching, standing, walking, pushing, pulling, lifting, finger dexterity, grasping, repetitive motions, talking, hearing, and visual acuity. The worker is exposed to heat, noise, hazards, atmospheric conditions and oils. The work is performed outdoors. MINIMUM QUALIFICATION REQUIREMENTS * * * 5. Possession of a valid CDL Class A (6331) or Class E (6056) driver's license. * * * NOTE: This is an Omnibus Transportation Employees Testing Act (OTETA) monitored position. Employees with this job description may be required to drive or road test a motor vehicle weighing over 26,000 pounds, transport 16 or more persons, or carry hazardous materials. At all times material to the instant case, Respondent was assigned to the School Board's South Central Maintenance Satellite (South Central). At all times material to the instant case, Robert Goldberg was the director of South Central. At all times material to the instant case, Berny Blanco was a Coordinator III at South Central and Respondent's immediate supervisor. The Collective Bargaining Agreement As a Roofer II employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Dade County School Maintenance Employee Committee (DCSMEC) and covered by a collective bargaining agreement between the School Board and DCSMEC (DCSMEC Contract). Article XI of the DCSMEC Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled, "Notification." It provides, in pertinent part, as follows: Whenever an employee violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the rule, regulation, or policy violated. An informal discussion with the employee shall occur whenever the employee[']s conduct or the nature and severity of the alleged infraction/violation does not warrant formal disciplinary action. Section 2 of Article XI is entitled, "Types of Separation." It provides as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of three distinct types of separation. Voluntary-- The employee initiates the separation by resigning, retiring, abandoning the position, or other unilateral action by the employee. Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays, where such absence is not reported as prescribed by bureau/office procedures, shall be evidence of abandonment of position. Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for which the School Board may terminate employment. Absences due to emergencies, or circumstances beyond the employee's control, will be given full consideration. An employee recommended for termination under this provision shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after first being notified by the Office of Professional Standards. Dismissals, Suspensions, Demotions-- Employees dismissed, suspended, or demoted shall be entitled to appeal such action to an impartial hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. (The employee shall have 20 calendar days in which to notify the School Board Clerk, in writing, of the employee's intent to appeal such action.) Failure to request a hearing for appeal of disciplinary action in the manner prescribed herein shall be deemed a waiver of rights to any such hearing. The Board shall provide for an impartial Hearing Officer who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. All such proceedings shall be conducted in accordance with School Board Rule 6Gx13-8C- 1.64. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and demotions. If the employee is not employed or has had a reduction in salary during the time of appeal of such dismissal, suspension, or demotion, and if reinstated by Board action, the employee shall receive payment for the days not worked, or salary not received, and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or demotion. Section 4 of Article XI is entitled, "Cause for Suspension." It provides as follows: In those case where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]" As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s] regulation[s], [and] [p]olic[ies]" and, if he does not, he may be disciplined in accordance with the DCSMEC Contract. Among the School Board's rules are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." Pre-2001-2002 Regular School Year Warnings and Conferences-for- the-Record Regarding Respondent's Attendance and Leave On December 13, 2000, in response to Respondent having been absent without authorization a total of three and a half days since the beginning of the previous month, Mr. Blanco sent a memorandum to Respondent, which read as follows: SUBJECT: Notice of Performance Expectation/Requirement Consider this notice a reminder of the importance of your performance expectation in the area of attendance. A review of the most recent Leave Without Pay (LWOP) Report indicates that you have accumulated three and one half (3.5) days (11/2/00- 1 day, 12/4/00- 1 day, 12/7/00- 1/2 day, 12/1/00- 1/2 day and 12/12/00 1/2 day) of unauthorized leave without pay (ULWOP) during the previous twelve months. Be advised that Article XI, Section 2-A.2 of the Bargaining [A]greement between the School Board of Miami-Dade County and Dade County School Maintenance Employee Committee (DCSMEC) states that " . . . Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism . . . shall constitute grounds for which the School Board may terminate employment . . ." This provision serves to insure the required job performance, and prevent any unnecessary impact on other staff members and contributes to the effective operation of this department. Your unauthorized absences adversely impact this department's ability to provide timely service. When you fail to report to work, the projects you are assigned are disrupted and must be either rescheduled or reassigned to other staff members. This in turn causes them to disrupt their work schedules to perform your assignment. In conclusion, you are hereby warned that should you continue to accumulate ULWOP's, appropriate disciplinary action will be taken. Respondent signed the memorandum, acknowledging his receipt thereof. On that same date (December 13, 2000), Mr. Goldberg formally referred Respondent to the School Board's Employee Assistance Program (EAP) based upon, among other things, Respondent's "excessive absences"; his "unauthorized absences"; and his "absences on Monday[s] and/or Fridays." Despite the School Board's efforts to help him, Respondent continued to have attendance problems, which adversely impacted South Central's maintenance operations. For example, he was absent without authorization on July 9, 10, 11, 12, 13 and 18, 2001. On August 7, 2001, Mr. Goldberg held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences" and "performance-related issues." Mr. Goldberg subsequently prepared and furnished to Respondent a memorandum, dated August 28, 2001, in which he summarized what had transpired at the conference and indicated what actions Respondent needed to take in the future. Mr. Goldberg's memorandum read as follows: A conference for the record was held on Tuesday, August 7, 2001. In attendance at this conference were Dr. James Monroe, Executive Director, Maintenance Employment Standards, Mr. Berny Blanco, Coordinator, South Central Satellite, Mr. George Ellis, DCSMEC, Representative, yourself, and this administrator. Your employment history indicates that you were first employed in December of 1990 as a Roofer II, Maintenance Operations South Central Satellite. I verified that your home address is: . . . . The purpose of this Conference was to address your excessive absenteeism: nine and one half unauthorized absences, which you have accumulated in the past twelve months. Also discussed were performance- related issues and the adverse effect your unsatisfactory performance has on your employment status as a Maintenance Operations Employee. You were on unauthorized leave on the following days: July 9, 10, 11, 12, 13, 18, 2001, December 4, and 7(.5), 2000, November 2, 2000, October 23(.5), 18(.5). You were given a written warning for attendance in December 2000 when you accumulated three and one half absences without authorization. You were previously referred to the District's Support agency on two separate occasions, and you declined to avail yourself of this service. You will again be administratively referred to this agency. You are directed to: To be in regular attendance. If in the event of further abs[ences], you are to contact Mr. Blanco or in his place Mr. Louis Martinez. If your absences are due to illness, immediately upon your return to duty, you must submit a note from your treating physician. Failure to comply will result in the absence being recorded as leave without pay, unauthorized (LWOP). To honor the workday by arriving on time. You submitted the attached letter dated August 1, 2001 requesting a career redirection back to [a] Roofing Journeyperson position. Dr. Monroe and I indicated that we would recommend to Mr. Woodson that this request be accepted and you be placed in a Journeyperson's position effective immediately. It was explained to you that this request does not relieve you of your responsibility to improve your attendance nor does it allow you to interfere with the daily operation of the roofing crew under the supervision of an acting or temporary foreperson. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference summary, and to have any such response appended to this document. Respondent signed the memorandum, acknowledging his receipt thereof. Respondent's request to be placed back in a Roofing II position was granted. In a further attempt to assist Respondent to become a more productive employee, the School Board again referred him to the EAP. The 2001-2002 School Year The School Board's efforts to help Respondent were unavailing. Respondent's poor attendance persisted. Moreover, contrary to the instructions he had been given, he failed to notify supervisory personnel of his absences. Not having "heard from [Respondent]," who had been absent without authorization for an extended period of time, Mr. Goldberg, on October 15, 2001, sent the following memorandum, by certified mail, return receipt requested, to Respondent's residence: SUBJECT: EMPLOYMENT INTENTION Please be advised that you have been absent from the worksite on the following days: 9/14/01, 9/17/01, 9/18/01, 9/19/01, 9/20/01, 9/21/01, 9/24/01, 9/25/01, 9/26/01, 9/27/01, 9/28/01, 10/1/01, 10/2/01, 10/3/01, 10/4/01, 10/5/01, 10/8/01, 10/9/01, 10/10/01, 10/11/01 Because these absences have caused . . . __x__ effective operation of the worksite to be impeded . . . I am requesting your immediate review and implementation of any of the following options. Notify the worksite or your intended date of return; Effect leave procedures (request for leave form attached); Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Respondent failed to comply with the directives contained in this memorandum; however, he did attend a meeting on October 23, 2001, at which his "leave history for the past 12 months was presented to [him] and reviewed with [him]." During this 12-month period, Respondent was absent a total of 83.5 days, 40.5 of which he was absent without authorization. Respondent attended a Conference for-the Record held on November 7, 2001, in the School Board's Office of Professional Standards. Also in attendance at the conference were Renaldo Benitez, the Executive Director of the Office of Professional Standards; Dr. James Monroe, the Executive Director of Facilities Operations; Mr. Goldberg; and a DCSMEC representative. The conference was held to address Respondent's "performance assessments-to-date; attendance-to-date; non- compliance with site directives regarding attendance; and . . . future employment status with the Miami-Dade County Public Schools." On November 13, 2001, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You have exceeded the number of days accrued and have failed to follow directives and reminders issued to you at your worksite in reference to your excessive absenteeism. You were provided an opportunity to respond and you said: "I was out on back injury and knee surgery. I thought that the worksite would grant me authorized leave. I knew it would be leave without pay, but not unauthorized. I provided all the doctor's notes to Mr. Goldberg." This administrator told you that if that was the case, you should have effected a medical leave with the leave office. You said, "I didn't know anything about the leave office. I was not aware of those procedures." Dr. Monroe asked you if you were in possession of your Maintenance Employee Handbook, which includes procedures to effect leave and you said, "Yes, I did not read the employee book and that is my fault." Mr. Goldberg showed you the employee intention letter sent to you on October 15, 2001, which you admitted having received, and pointed out that one of the options is for you to implement leave procedures and a Request for Leave Form was attached. You said, "I did get the letter, but there was no form attached." This administrator asked you if you had attempted to contact your union and seek advice from them and you said, "No." You also said: "I just went through a divorce. I don't want to be a bad employee. I have tried to see Mr. Abin with the District's support referral services. He just has not been able to see me. I want to participate." You provided a note from your physician, Dr. Nancy L. Erickson, releasing you for full duty and restricting you to only wearing a knee support. Dr. Monroe said, "This note is satisfactory, but you have to be in attendance and on time every day. It is very important for you to schedule any pending doctor's appointments after work hours because of the large number of absences you have amassed." This administrator reminded you that 40.5 days of leave without pay unauthorized within the last 12 months is more than excessive. According to contractual stipulations, "Unauthorized absences totaling more than five or more workdays during the previous 12 month period shall be evidence of excessive absenteeism." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. You said, "No. sir." The following directives were issued to you during the conference concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact on the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference you were provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct and 6Gx13-4E-1.01, Absences and Leaves. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference, to assume your duties. . . . Please be aware of your right to clarity, explain, and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. The "note from . . . Dr. Nancy L. Erickson" that Respondent submitted during the conference was a forgery. It read as follows: To whom it may concern: I apologize. Mr. Kepler's rehabililative [sic] therapy completion date was incorrect. The correct date in [sic] November 1st. He kept his appointment with me on October 31st which was the completion of his therapy. He is released for full duty and only restriction is to wear knee support. The second sentence of the note referred to a previous note that Dr. Erickson had purportedly written. This previous note, which had been sent, by facsimile transmission, to Mr. Goldberg, was also a forgery. It read as follows: October 16, 2001 Re: Charles Kepler To Whom It May Concern: Mr. Charles Kepler has been under my care for an injury to his left knee. Mr. Kepler has been under going [sic] rehabilitative physical therapy which he will complete the end of this week. Mr. Kepler is released to return to work on Monday October 22, 2001. Respondent was a patient of Dr. Erickson's, but the last time he had seen her was March 29, 2001, and he had only received treatment from her for back pain, not for any knee problems. Mr. Goldberg received other notes concerning Respondent's physical condition and medical needs, in addition to the two mentioned above, purporting to be from Dr. Erickson that were also forgeries. While he may have had the assistance of others, Respondent was the driving force behind this scheme to defraud the School Board through the submission of forged doctor's notes. 2/ Following the November 7, 2001, Conference-for-Record, Respondent continued his "pattern of excessive absenteeism and . . . violation of . . . attendance procedures," which prompted Mr. Goldberg to recommend, in writing, that Respondent be fired. Mr. Goldberg's written recommendation, which was dated November 30, 2001, read, in pertinent part, as follows: I hereby recommend that Mr. Charles Kepler be terminated from his employment with the Miami-Dade County School District Maintenance Operations, South Central Satellite. Mr. Kepler has a continuing pattern or excessive absenteeism and has recurring violations of Maintenance and Operations attendance procedures. He has failed to comply with School Board rules, responsibilities and duties even after he was given specific instructions and directives regarding future absences. * * * On November 26, 2001, he requested one-day sick leave but only had 1/2 day available leave. On November 29 and 30, 2001, he again called in for sick leave with no available time. He never personally notified Mr. Blanco or this administrator of this request for leave time. On three separate occasions, Mr. Kepler was referred to the District Support Agency. He declined to avail himself of its service on every occasion. . . . No immediate action was taken on Mr. Goldberg's recommendation. Respondent was absent without authorization on December 10, 12, 13, 18, 19, 20, 21, 27, 28 and 31, 2001, January 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30 and 31, 2002, and February 1 and 4, 2002. On February 4, 2002, Mr. Goldberg sent a memorandum, by certified mail, return receipt requested, to Respondent's residence containing the following instructions: I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. On or about February 7, 2002, Mr. Goldberg received the following letter from Respondent: This is to inform you that I will be returning to work on Feb. 11, 2002. I will be completing my therapy for my knee on Feb. 9, 2002. I will bring a release from the doctor and she will fax you one. Her assistant has been faxing you updates every week. I will be moving this weekend; my new address is . . . and my new phone number is . . . . If there are any changes with my injury I will contact you Friday after therapy. Respondent did not report to work on February 11, 2002, or at any time thereafter, and he failed to comply with the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." (On numerous occasions, Mr. Goldberg telephoned Respondent's residence in an effort to "contact [Respondent] directly," but he was never able to reach Respondent.) During the week of February 11, 2002, and the several weeks that followed, Mr. Goldberg received, by facsimile transmission, notes, purportedly signed by Dr. Erickson, concerning Respondent's physical ability to report to work. Mr. Goldberg, suspecting (correctly) that the notes might not be genuine, contacted Dr. Erickson's office by telephone and, in response to the inquiries he made, was told that the last contact Dr. Erickson had with Respondent was in late March of 2001. Following this telephone conversation, Mr. Goldberg referred the matter to the School Board's Police Department for investigation. The investigation was conducted by Detective Richard Robinson. After completing his investigation, Detective Robinson issued a written report (Investigative Report G-13852) on May 1, 2002, which contained the following accurate conclusion: Based on statements and evidence gathered during this investigative process, there is sufficient evidence to prove between the dates of July 25, 2002, Mr. Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents stating his inability to return to work, due to an injury. During an interview with Mr. Kepler's physician, Dr. Nancy Erickson, it was confirmed that the physician notes faxed to Mr. Goldberg from Mr. Kepler, and allegedly signed by Dr. Erickson, were forged. Dr. Erickson stated she has not seen Mr. Kepler since March 29, 2001. The allegation of the Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, against employee, Mr. Kepler, Jr., is Substantiated. From November 7, 2001, the date of the last Conference-for-the-Record, to May 23, 2002, Respondent was absent a total of 122 days. All but one of these absences were unauthorized. Respondent repeatedly disregarded the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." Sometime prior to May 31, 2002, Mr. Goldberg learned that Respondent's driver's license had been suspended since December 31, 2001 (as a result of Respondent being arrested for driving under the influence) and that therefore Respondent no longer (and had not since December 31, 2001) met the minimum qualifications to be a Roofer II. Respondent attended a Conference-for-the Record held on May 31, 2002, in the School Board's Office of Professional Standards. Also in attendance at the conference were Mr. Benitez, Mr. Goldberg, and representatives of DCSMEC. The conference was held "to address Investigative Report G-13852 . . . ; [Respondent's] record; and [his] "future employment status with the Miami-Dade County Public Schools." On June 17, 2002, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You were provided an opportunity to respond to your excessive absences and your suspended driver's license. You said, "I was sick. I could not bend my knees, but I still called the tape. My driver's license is suspended, but I'm not guilty. That's why I'm fighting it. I'm in the process of clearing all this up." Mr. Goldberg said, "The directives that you were given were specific, that is, to contact me and not to call the tape. Furthermore, your job requires you to have a valid driver's license in order to perform your duties. You need to take care of your driver's license and submit a letter from your doctor that you can return to work without any restrictions." Investigative Report- G-13852, Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities- Substantiated A copy of the aforementioned investigative report was presented to and reviewed with you in its entirety. You were provided an opportunity to respond to the allegation that: "Between July 25, 2001 and February 25, 2002, Employee Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents, stating his inability to report to work, due to injury." You said, "I did not submit anything forged. Everything came from her office as far as I know. I have never forged any doctor's letter." This administrator asked, "Why were these medical notes faxed from a different medical center and some even had misspellings." You said, "I don't know. It was the girl in the office that wrote them." I reminded you that Dr. Nancy L. Erickson, O., is an anesthesiologist and she stated that she has only seen you three times. You said, "That's because they don't want to deal with me anymore. The other doctor that she sent me to was afraid that I would sue him." I asked you again if any of these notes were false and you said, "No." Mr. Bell [a DCSMEC representative] said, "He will submit documentation of his knee surgery." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with M-DCPS. You said, "No, sir." Should you return to work, the following directives were re-issued to you during the conference concerning future absences: Be in regular attendance. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay, Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. In addition, the following directives herein delineated were also issued to you during the conference: Adhere to all (M-DCPS) School Board Rules and regulations at all times. Do not forge any documents related to your employment with M-DCPS. Do not submit any forged documents for any reason to M-DCPS. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference, you were provided with a copy of School Board Rule[] 6Gx13-4A- 1.21, Responsibilities and Duties/Employee Conduct. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference to assume your duties. You were advised to keep this information presented in this conference confidential and not discuss this with co- workers. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Chief Facilities Officer of Maintenance, and the Director of South Central Satellite. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Chief Facilities Officer of Maintenance will compel formal notification of the recommended action or disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have any response appended to your record. Respondent did not provide supervisory personnel with proof that his driver's license had been reinstated, nor did he "submit a letter from [his] doctor that [he] c[ould] return to work without any restrictions," as he had been instructed to. He remained out of work, accumulating additional unauthorized absences. On June 23, 2002, Respondent attended a meeting in the Office of Professional Standards, along with Mr. Benitez and Mr. Goldberg, at which he was advised of the following: A legal review of the case file and the summary information determined that you, Mr. Charles M. Kepler, be recommended for dismissal for the following charges: Just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. On August 9, 2002, Merrett Stierheim, the School Board's Superintendent of Schools, sent Respondent the following letter: I am exercising my responsibility as Superintendent of Schools and recommending to The School Board of Miami-Dade County, Florida, at its scheduled meeting of August 21, 2002, that the School Board suspend you and initiate dismissal proceedings against you from your current position as Roofer II at South Central Maintenance effective at the close of the workday, August 21, 2002, for just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. If you wish to contest your suspension and dismissal, you must request a hearing in writing within 20 calendar days of the receipt of notice of the Board action, in which case, formal charges will be filed and a hearing will be held before an administrative law judge. At its August 21, 2002, meeting, the School Board took the action recommended by Mr. Stierheim. At no time from May 23, 2002, until the date of his suspension did Respondent report to work. All of his absences during this period were unauthorized. Although Respondent had accumulated an extraordinary number of unauthorized absences at the time of his suspension, the number would have been even greater had Mr. Goldberg not "worked with [Respondent]" and converted some absences, which were initially unauthorized, to "vacation or sick days when [Mr. Goldberg] could" (following his review of medical documentation belatedly provided by Respondent).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment with the School Board pursuant Article XI of the DCSMEC Contract. DONE AND ENTERED this 26th day of February, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 26th day of February, 2003.
The Issue Whether the Miami-Dade County School Board (School Board) has good cause to terminate the employment of Mayda Cepero (Respondent), a paraprofessional, as alleged in the Amended Notice of Specific Charges filed by Petitioner on April 18, 2013.
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 Miami-Dade County, Florida. Finlay Elementary is a public school in Miami-Dade County, Florida. At all times material hereto, Respondent has been employed as a paraprofessional and assigned to a Pre-K class at Finlay Elementary. At all times material hereto, Cecilia Sanchez has been the principal of Finlay Elementary. During the 2009-2010 school year, C.M. was a student at Finlay Elementary, but C.M. was not a student in Respondent’s assigned classroom. Respondent had no direct supervisory responsibility for C.M. Prior to the 2009-2010 school year, Respondent had met Ms. M. and, through Ms. M., Respondent met Mr. M.3/ Respondent asked Mr. M., who has a law enforcement background, to assist her with certain personal matters relating to the untimely death of Respondent’s son. The M. family and Respondent developed a personal relationship. Thereafter, Respondent made what Mr. M. considered to be an inappropriate sexual advance towards him. Mr. M. attempted to break-off all communication with Respondent. Subsequent to the break-off, Respondent accessed C.M.’s emergency contact information card and began sending Mr. M. numerous, unwanted text messages, emails, and other electronic communications. Respondent used the emergency contact information to make these communications with Mr. M. Respondent had no professional interest in accessing C.M.’s emergency contact information. In November 2009, Ms. Sanchez issued a reprimand to Respondent for this conduct.4/ On March 23, 2010, Respondent disobeyed instructions from her classroom teacher and from her principal. The teacher had instructed Respondent to keep the class in the classroom during a Career Day demonstration involving a K-9 officer and his dog. The K-9 officer was Mr. M. Notwithstanding that instruction, Respondent brought her class outside to watch the K-9 demonstration. Ms. Sanchez told Respondent to take her class back to the classroom. Respondent refused and told her class to run and play. Ms. Sanchez had to ask another teacher, who was supervising her own class, to assist with Respondent’s class. Because of this incident, Ms. Sanchez issued a written reprimand to Respondent for her failure to follow instructions from her classroom teacher and Ms. Sanchez. In April 2010, Ms. Sanchez reprimanded Respondent for failing to comply with her responsibilities and duties in the classroom. On February 25, 2012, Ms. Sanchez reprimanded Respondent for not following her job responsibilities and duties and for not complying with directives issued by both her classroom teacher and Ms. Sanchez. In November 2012, a personnel investigation against Respondent began based on complaints from Mr. and Ms. M. that Respondent was monitoring N.M. at school and texting Mr. M. with her observations. Respondent would often stare at N.M. at school. Respondent monitored N.M.’s absences from school. Respondent went to the parking lot to see who picked N.M. from school. Respondent often interrupted the security employee who was supervising the parent pick-up of children following the school day. Respondent repeatedly sent text messages to Mr. M. that contained references to N.M.’s activities at school. N.M. became very uncomfortable and talked to N.M.’s parents about Respondent. N.M. became reluctant to attend school and N.M.’s grades suffered. In November 2012, Ms. Sanchez informed Respondent that she was under investigation from parents that were to remain confidential for the time being. Ms. Sanchez directed Respondent to have no contact with any witness who may be involved in the investigation. Immediately after being told by Ms. Sanchez not to contact any witness, Respondent sent a text message to Mr. M.5/
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the School Board of Miami-Dade 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 Mayda Cepero and terminate that employment. DONE AND ENTERED this 19th day of July, 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 19th day of July, 2013.
The Issue Did the Hendry County School Board (Board) have just cause to terminate Respondent from her employment as a paraprofessional teacher's aide?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent was employed by the HCSD as a paraprofessional teacher's aide at LMS. The employment relationship between the Board and Respondent is subject to the terms and conditions of the Collective Bargaining Agreement Article 8, Section 8.013, Collective Bargaining Agreement, provides that "when an employee has completed three (3) years of the past five (5) with satisfactory service with the Hendry County School Board . . . and has been appointed for a subsequent year, he [sic] will be eligible for continued employment status, which status will continue year to year unless the Board terminates the employee for just cause (Emphasis furnished). Respondent was first employed with the HCSD on August 18, 1986, and worked continuously through May 25, 1999, when she was terminated. Since Respondent achieved "continued employment status," she can only be terminated for "just cause." The Board terminated Respondent for "failure to perform assigned duties in a satisfactory manner" and "other sufficient cause" under School Board Policies and Procedures 218. There were no written evaluations of Respondent's performance accomplished during the first 9 years of Respondent's employment with the HCSD because the Board did not adopt its current policy until approximately 1996. However, there is no evidence that Respondent's work performance was unsatisfactory during the first 9 years of her employment with the HCSD. Respondent worked at LMS for each of those nine years of her employment with the HCSD and was routinely re-appointed for each ensuing year. The first 2 years of her employment, Respondent was assigned to work with students that were classified as "trainable mentally handicapped." Respondent had to assist these students in learning rudimentary skills such as brushing their teeth and changing their underwear. From the fall of 1988 until the spring of 1992, the equivalent of 4 school years, Respondent was assigned to the "Time Out Room." The assignment to the "Time-Out Room" was not punitive in nature, or the result of unsatisfactory work performance by Respondent. Disruptive students that caused a problem in the classroom were sent to the "Time-Out Room." The students went in the "Time-Out Room" for one period after which they usually would return to their regular class. Although Respondent was employed as a "Teacher's Aide" for exceptional education students with special needs she did not assist a teacher, but ran the "Time-Out Room" alone. After 4 years working in the "Time-Out Room," Respondent was assigned to Internal Suspension. The "Time-Out Room" was eliminated, and replaced with Internal Suspension. Internal Suspension was used as a form of discipline for students who violated school policy. Students were sent to Internal Suspension anywhere from 2 to 10 days. Internal Suspension was conducted in a double-wide trailer behind LMS. Respondent again was by herself in Internal Suspension and was not assisting a teacher. The first documentation of any performance deficiency by Respondent consists of a Procedure for Improvement form and a Special Non-Instructional Personnel Evaluation form, both dated January 22, 1996. The forms were prepared by James C. Allen, Principal of the LMS. The Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent achieved a "satisfactory" designation for 6 areas and a "Needs Improvement" in "Quality of Work" and "Work Attitude." The deficiencies specified in the Procedures for Improvement form are: "Harshness in speaking with staff and students, assisting students with academic work, unacceptable activities in classroom, needlepoint, police scanner." The Procedures for Improvement form provided that Respondent had the "95/96 school year" to improve, and that Mr. Allen would "Recommend dismissal" if the deficiencies were not improved. Respondent successfully improved her performance. On March 21, 1996, Mr. Allen wrote a letter to Respondent's union representative, with a copy to Respondent, stating that "I too am optimistic that improvement has occurred." On April 1, 1996, Mr. Allen wrote directly to Respondent expressing concern about "complaints/concerns" received about her conduct on a Beta Club trip to Washington, D.C., but stating, in pertinent part: These concerns cannot be overlooked, however, since we initiated procedures for improvement January 22, 1996, which dealt specifically with harshness in speaking with students/staff. Improvement has been noted. It must also be pointed out that Ms Dankanich (Beta Club sponsor) and some staff members felt that you did a good job in controlling your students and watching out for their safety and welfare. (Emphasis furnished). The March and April 1996 letters from Mr. Allen were included in Respondent's personnel file. Also included in the personnel file were letters from the Beta Club sponsor for the Washington, D.C. trip and a chaperone. These letters stated that Respondent spoke to students and adults and conducted herself in an appropriate manner throughout the trip. Respondent's annual "Overall Evaluation" for the 1995-1996 school year was "Satisfactory." Mr. Allen checked the box entitled "Reappoint based on employee's willingness to improve job dimensions not satisfactory." Respondent attained a "Satisfactory" score on 6 out of eight areas listed for job dimension with "Quality of Work" and Work Attitude" checked-off for "Needs Improvement." Respondent was reappointed and returned to LMS for the 1996-1997 school year. Respondent was assigned to assist with the "trainable mentally handicapped" students after having been on her own in the "Time-Out Room" and Internal Suspension for 8 years and working with Exceptional Student Education (ESE) students. This assignment required an adjustment for Respondent. On February 11, 1997, Allen presented Respondent with another Procedures for Improvement form and Special Non- Instructional Personnel Evaluation form. As in the preceding year, the Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent "Needs Improvement" in "Quality of Work" and "Work Attitude." The Procedures for Improvement form identified deficiencies as "failure to perform assigned duties in a satisfactory manner, harshness in speaking with students/staff; unacceptable activities in classroom," and afforded Respondent the 96\97 school year to improve or be recommended for dismissal. Respondent wrote on both forms that she did not agree with them. In April 1997, 12 professional colleagues of Respondent wrote letters of support. These letters were included in Respondent's personnel file. The letters vouch for Respondent's professionalism and many stated that Respondent never was observed to engage in improper conduct or exhibit inappropriate speech or tone of voice. Throughout the second semester of the 1996-1997 school year, Respondent worked 2 class periods as a teacher's aide for Erin Berg-Hayes. Ms. Berg-Hayes was a sixth grade ESE teacher. Ms. Berg-Hayes testified that Respondent's job performance during the 1996-1997 school year was satisfactory. Respondent did not receive annual evaluation for the 1996-1997 school year. Since Respondent was not told otherwise, Respondent assumed she had improved her performance to Mr. Allen's satisfaction. Respondent received a letter of appointment at the end of the 1996-1997 school year and was reappointed for the 1997-1998 school year. For the 1997-1998 school year, the sixth grade students at LMS were moved to the Sixth Grade Center (SGC). Jodi Bell assistant principal at LMS was assigned to administer the SGC. Mr. Allen remained as principal at the LMS which consisted of seventh and eighth grade students. Respondent worked as Erin Berg-Hayes' full-time aide for the 1997-1998 school year. Respondent and Ms. Berg-Hayes were assigned to the SGC. Ms. Berg-Hayes characterized Respondent's job performance during the 1997-1998 school year as "good." When Ms. Bell prepared Respondent's annual evaluation, Ms. Berg-Hayes advised Ms. Bell that she was "pleased" with Respondent's performance and "on the overall [Respondent's] performance was good and satisfactory." Ms. Bell prepared Respondent's 1997-1998 annual evaluation for the 1997-1998 school year. Ms. Bell checked off "satisfactory" in the 8 areas designated for assessment. There were no check marks in the "Needs Improvement" column. On the 1997-1998 annual evaluation, Ms. Bell checked the box for "Satisfactory" as Respondent's "Overall Evaluation," and also checked the box for "Reappoint for next year." In the section entitled "Comments by Evaluator," Ms. Bell wrote: "I have appreciated your willingness to go above what is expected and help wherever help is needed. Keep up the good work!" Respondent returned to the SGC as Ms. Berg-Hayes' Aide in the 1998-1999 school year. Ms. Berg-Hayes and Respondent worked together for the fall semester after which Respondent requested to be reassigned. Respondent attributed this to a personality clash with Ms. Berg-Hayes that started in July 1998. Ms. Berg-Hayes testified that Respondent's performance declined in the 1998-1999 school year. Cathy Lipford, teacher's aide at SGC, who worked together with Ms. Berg-Hayes and Respondent for one period during the entire fall semester in the 1998-1999 school year did not observe a problem with Respondent's work performance. This teachers' aide was aware of some tension between Respondent and Ms. Berg-Hayes. However, this aide testified that Respondent appeared to take the initiative, and assisted students, and the aide never observed Respondent speaking inappropriately to students. Ms. Berg-Hayes did not prepare any documentation of Respondent's alleged performance deficiencies during the fall semester of the 1998-1999 school year. Ms. Berg-Hayes was not consulted about Respondent's performance by Mr. Allen, the former principal of LMS or Mr. Cooper, the current principal of LMS at the time Respondent's performance was evaluated for the 1998-1999 school year, when it was decided to recommend dismissal of Respondent for failure to perform her assigned duties or other sufficient cause. During the spring semester of the 1998-1999 school year, Respondent was assigned as an aide to Dorothy Lomago, a varying exceptionalities teacher for seventh and eighth grade students. Respondent and Ms. Lomago worked together from January 1999 through May 1999. Ms. Lomago had been employed by the Board for 25 years. Prior to Respondent, Ms. Lomago only had had 2 other teaching assistants. Ms. Lomago considers compassion for children and initiative as the most important characteristics for a teacher's aide in special education. Ms. Lomago rated Respondent's performance in those areas as "ineffective." Ms. Lomago considered Respondent adequate in performing clerical tasks such as copying papers and grading papers. Ms. Lomago did not document Respondent's performance deficiencies. Ms. Lomago neither counseled nor corrected Respondent. Likewise, Ms. Lomago never brought to Respondent's attention the things she believed Respondent failed to do or did wrong. Ms. Lomago merely did what she was told to do by Mr. Cooper when he arrived at LMS in March 1999. On March 31, 1999, Respondent went to Mr. Allen's office for her 1998-1999 annual evaluation. R. Scott Cooper, assistant principal, Ms. Jodi Bell, assistant principal, Mr. Allen, and Ms. Davis, assistant principal were present in Mr. Allen's office upon Respondent's arrival. This meeting was terminated after Mr. Allen indicated there was a problem and asked Respondent if she wanted union representation. Respondent replied that she thought it would be wise. Before the meeting on March 31, 1999, Respondent was not aware that her job performance was considered deficient. Respondent had not been told of any deficiencies and had not received any counseling. In March/April 1999, Mr. Allen retired, and was replaced as principal of LMS by Mr. Cooper. Mr. Cooper arrived at LMS some time in the last 2 weeks of March 1999. Respondent and Mr. Cooper had had no professional contact before March 1999. Mr. Cooper met with Respondent on April 16, 1999, for Respondent's 1998-1999 annual evaluation. Mr. Cooper gave Respondent 4 separate Procedures for Improvement forms and an Annual Non-Instructional Personnel Evaluation form. This was Respondent's first notice of her specific performance deficiencies for the 1998-1999 school year. Mr. Cooper never conducted a formal observation of Respondent's job performance. Mr. Cooper based the annual evaluation predominantly on a review of the school board records, and on discussions with Mr. Allen, Ms. Bell, and Ms. Davis. The Procedures for Improvement forms specified the following deficiencies: "Work Attitude - able to successfully work with co-workers and students"; "Initiate Resourcefulness - ability to identify what needs to be done"; ""Dependability"; and "Quality of Work." The forms identified the following means of judging success in overcoming the foregoing deficiencies, respectively. "Supervisors will observe appropriate student/aide interactions in all circumstances"; "decreased necessity for teacher/supervisor to redirect Ms. Bennett's activities"; "Ms. Bennett will demonstrate the ability to effective [sic] facilitate school functions - adhere to work requirements"; and "Higher quality of work - decrease in errors." As a Statement of Assistance Offered, all of the forms provided: "Ms. Bennett may meet with Mr. Cooper weekly to obtain suggestions and assistance" Respondent was given until May 10, 1999, to improve her deficiencies. This was a period of 3 weeks or 15 school days. On Respondent's Annual Non-Instructional Personnel form, Mr. Cooper checked-off 4 out of 8 areas for "Needs Improvement" with "Satisfactory" checked for the remaining 4 areas. Mr. Allen checked "Unsatisfactory" for the "Overall Evaluation" and checked the box "Dismissal." Respondent noted her disagreement with the evaluation. On May 19, 1999, Mr. Cooper formally recommended dismissal of Respondent. Respondent received a Notice of Recommendation of Dismissal on that date. The Board approved Respondent's dismissal on May 25, 1999. During the 3 week period Respondent was given to improve her performance, neither Mr. Cooper nor any other administrator met with Respondent to advise her as to whether she was improving. There is no documentation whatsoever of Respondent's lack of improvement. During the 3 weeks Respondent was to improve her performance, she received repeated assurance from Ms. Lomago that they would be working together the following year. Ms. Lomago never advised Respondent that her performance continued to be unsatisfactory. Likewise, no one from the Board or any school administrator advised Respondent that she was not complying with the Procedures for Improvement or that her work continued to be unsatisfactory. Not hearing otherwise, Respondent considered her work to be satisfactory and did not meet with Mr. Cooper to obtain suggestions and assistance. The evidence does not establish that Respondent failed to perform her assigned duties in a satisfactory manner during the 1998-1999 school year or that the Board had just cause or any other sufficient cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board reinstate the employment of Annette Bennett-Edwards and provide for back pay and benefits retroactive to May 25, 1999. DONE AND ENTERED this 6th of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2000. COPIES FURNISHED: Edward A. Upthegrove Superintendent Hendry County School District Post Office Box 1980 LaBelle, Florida 33935-1980 Richard G. Groff, Esquire Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206 Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2989 Fort Myers, Florida 33902-2089
The Issue Whether Respondent's employment should be terminated based on the allegations contained in the Notice of Specific Charges.
Findings Of Fact At all times relevant to this proceeding, Petitioner has been a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Florida Constitution, and Section 1001.32. Petitioner has continuously employed Respondent since 1992 as a custodian at Melrose Elementary School, one of the public schools in Miami-Dade County. At all times relevant to this proceeding, Cynthia Gracia was the principal of Melrose Elementary School. Respondent is a non-probationary "educational support employee" within the meaning of Section 1012.40, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 1012.39. . . . "Employee" means any person employed as an educational support employee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. (b) Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . At the times material to this proceeding, Respondent was a member of the AFSCME collective bargaining unit. AFSCME and Petitioner have entered into a CBA, which provides in Article XI for discipline of covered employees. Article XI, Section 4 provides that covered employees who have been employed by Petitioner for more than five years (such as Respondent) may only be discharged for "just cause." Article XI, Section 4 of the CBA pertains to types of separation from employment. Article XI, Section 4(B) pertains to excessive absenteeism and abandonment of position and provides as follows: (B) An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall be grounds for termination. . . . School Board Rule 6Gx13-4E-1.01 provides as follows: Except for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave. Pursuant to Section 1012.67, a school board is authorized to terminate the employment of an employee who is willfully absent from employment without authorized leave, as follows: Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the school board. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee, unless the employee can demonstrate that he or she was wrongfully incarcerated. At the times material to this proceeding, Respondent was not wrongfully incarcerated, and he was not eligible for a leave of absence under Petitioner’s leave polices. School Board Rule 6Gx13-4A-1.21 states in pertinent part that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. On September 25, 2002, Respondent was charged with assault and battery (domestic violence) involving his then girlfriend. Those charges were pending at the time of the final hearing. On or about November 14, 2002, Respondent appeared at a court hearing. Because he had missed an earlier court date, Respondent was incarcerated in the Miami-Dade County jail. Shortly after he was arrested, Respondent attempted to contact Ms. Gracia at Melrose Elementary School. Respondent testified he tried to call the school five or six times on the day he was arrested, but the call from jail was long distance and the school would not take a collect call. That same day, Respondent called his new girlfriend (Leanne Perez), told her that he was in jail, and asked her to tell Ms. Gracia that he was in jail. On November 14, 2002, Ms. Perez told Ms. Gracia by telephone that Respondent had been detained. When questioned, Ms. Perez explained that Respondent was in jail, but she did not provide any additional information. Respondent returned to his job site on December 16, 2002. Between November 14 and December 16, Respondent was absent from work without authorized leave. Neither Respondent nor anyone on Respondent's behalf contacted or attempted to contact Ms. Gracia between Ms. Perez's telephone call on November 14 and Respondent's reappearance at the job site on December 16. Prior to his incarceration, Respondent had absences from work without authorized leave. From April 11, 2002, to December 16, 2002, Respondent had 29.5 days of unauthorized absences from the worksite. Respondent's unauthorized absences impeded the provision of the custodial services that are necessary to keep a school clean and safe. During Respondent's unauthorized absences, the other members of the custodial staff had to perform their duties and had to perform extra work to cover for Respondent's absence. On December 5, 2002, Ms. Gracia wrote a memorandum to Respondent styled "Employment Intention." After listing the dates Respondent had been absent between October 10, 2002, and December 5, Ms. Gracia wrote as follows: These absences have caused the effective operation of the worksite to be impeded, and/or efficient services to students to be impeded. I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; or Effect leave procedures (request for leave [form] attached); or Implement resignation from Miami-Dade County Public Schools. (Resignation letter attached.) You are directed to notify the worksite within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Ms. Gracia's memorandum was mailed to the address Respondent had given Petitioner as his residence, and a relative of Respondent, who was not named at the final hearing, signed for the mailing. Respondent testified, credibly, that he did not receive the memorandum until after he got out of jail. Respondent did not respond to the memorandum. Respondent testified, credibly, that he did not intend to abandon his employment. Respondent worked between December 16, 2002, and April 9, 2003, the date Petitioner suspended Respondent's employment without pay and instituted these proceedings to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth in this Recommended Order, sustains the suspension of Respondent's employment without pay, and terminates that employment. DONE AND ENTERED this 24th day of October, 2003, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2003.
The Issue Whether it was proven by clear and convincing evidence that Respondent committed the offense(s) charged in Petitioner's Petition; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Stipulated Facts During the 2014-15 school year, Respondent was employed as a teacher at Frontier Elementary School ("Frontier"). Respondent is an experienced teacher. Facts Established at the Hearing Petitioner is the duly-constituted school board of Palm Beach County, Florida. It is charged with the duty to provide a public education to the students of Palm Beach County and to establish policies and programs consistent with state law and rules that are necessary for the efficient operation and general improvement of the Palm Beach County district school system. Respondent was employed by Petitioner as a teacher in the Palm Beach County district school system for 16 years and has been teaching since 1996. At all relevant times, Respondent was employed at Frontier in Palm Beach County, Florida. Respondent previously taught second grade, third grade, and fifth grade in self-contained class settings. During the events relevant to this action, she was an English Language Learners (ELL) resource teacher to children in grades first through fifth. Her performance evaluations had been positive up until the events which are involved in this matter. The employment relationship between Petitioner and Respondent is subject to the terms and conditions of a collective bargaining agreement between Petitioner and the Classroom Teachers Association of Palm Beach County ("CTA"). Petitioner has alleged in its Petition that Respondent is guilty of the following violations of statute, School Board policies, or administrative rules: School Board Policies 0.01(2)(c) and (2)(d) Commitment to the Student, Principle I; School Board Policy 3.02(4)(a), (4)(d), (4)(e), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 5.002, Anti-Bullying and Harassment, Expectations; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff, School Board Policies; School Board Policy 3.27, Criteria for Suspension & Dismissal and Code of Ethics of the Education Profession in Florida; Article II, Section M of the CTA Collective Bargaining Agreement; Rule 6A-5.056, F.A.C., (2) Misconduct in Office; H. Rule 6A-5.056(4), F.A.C., of [sic] Ethics of the Education Profession in Florida; I. Rules 6A-10.081(3)(a) and (3)(e), F.A.C., Principles of Professional Conduct for the Education Profession in Florida. The facts underlying these alleged violations are outlined in paragraphs 8 through 12 of the Petition filed by the School Board dated March 2, 2016. See DOAH docket entry and Petition filed on March 2, 2016. Incident Involving Z.N. Z.N., a student of Respondent, was called by the School Board. On direct examination, he was unable to remember how he was treated by Turnbull when she was his teacher. Other than acknowledging that he remembered being pulled out of Petitioner's class, Z.N. articulated no credible, clear, or convincing testimony supporting any of the allegations lodged against Respondent regarding her interaction(s) with him. Z.N.'s mother, J.N., testified that Turnbull was her son's teacher when he previously attended H.L. Johnson Elementary School ("H.L. Johnson"). Z.N. would come home every day crying and seemed miserable in Respondent's class. These observations occurred when he was Respondent's student at that elementary school. He was moved to her class at Frontier on September 22, 2013. There were times when he attended her class at H.L. Johnson that he would come home from school and would be visibly shaking. He would throw up the night before school, and she would have to physically put him in the classroom while he would beg and scream not to stay. Prior to and after leaving her class, Z.N. did not exhibit those behaviors. She wrote a letter complaining to the principal about Respondent. His mother also testified that Z.N. has been diagnosed as having attention-deficit/hyperactivity disorder ("ADHD"). The mother observed that on days where he had to attend school with Respondent at H.L. Johnson, she noticed a big difference in his sleeping and his eating. His demeanor would change, and he became withdrawn. The mother of Z.N. did not personally observe any interaction between her son and Respondent in the classroom. The father of Z.N. testified as well. He recounted that his son did not want to attend school while he was previously in Respondent's class at H.L. Johnson. He would become upset, emotional, and withdrawn. His son "threw fits," broke down, and cried when he had to go to school. To investigate his son's disconcerting response, the father personally "observed" the class three times, from outside the door.1/ During one visit, he observed the class being somewhat reckless, and Respondent was trying to get her class under control. He heard Turnbull slam a book on the desk to get the attention of the class. He heard Petitioner use the "F bomb" on one occasion.2/ When Z.N. transferred out of Turnbull's class, he started doing very well, began to succeed, and started to come out of his shell. He began going to school with less of a problem. Like the mother, Z.N.'s father did not personally observe or witness any interaction between his son and Respondent. E.D. was a student in the same class with Z.N. and Respondent at H.L. Johnson. She testified that she found Respondent to be a great teacher, and she learned things in the class with her. She felt that Turnbull was very nice to other students and her. She never saw Turnbull pick on Z.N., or treat him in a way that she felt was unfair. On the other hand, E.D. testified that Z.N. was loud and disruptive in class. Z.N. caused problems in the class which prevented the class from moving forward. E.D. did not recall hearing Respondent yell at any students, other than perhaps once when the class was loud. She never saw or heard Z.N. cry in class. The testimony of E.D. was credible and gained from personal knowledge and actual observation of teacher/student interactions in the classroom. Turnbull testified about her involvement with Z.N. At some point in time, Z.N. eventually became her class student. He was bright, although he had a diagnosis of ADHD and had been prescribed medication, which he "took infrequently, at best." He acted out and was disruptive in class virtually every day. He was disruptive in different ways, sometimes calling out and sometimes making funny noises with his mouth. At times, he would bother the other children. The behavior of Z.N., combined with that of other students, was difficult and disruptive, preventing her class from moving along according to the curriculum. As a result, the class was falling behind the other classes academically. Respondent did yell at Z.N. but not as a first resort. She would first talk to him and ask him to stop. She tried different techniques with Z.N., but admitted that there could have been times when her voice got louder when she had to repeat the same thing to Z.N. six or seven times within a short time period. She has a loud voice, which some students can interpret as yelling, but that was not her intent. Until the time Z.N. left her classroom, she felt that the parents were supportive. The mother sent her emails thanking her partially for what she was doing for her son, including an email thanking her for easing his transition into her class. She felt compassion for Z.N. and believed that he could not control what he was doing, particularly when he was not regularly taking his prescribed medication. The more persuasive evidence is that Z.N. presented teaching problems and challenges to Respondent. He disliked going to school after he was assigned to Respondent's classroom, but the undersigned is not convinced that his reaction to school was based on any traumatic treatment by Respondent. Z.N. himself offered absolutely no evidence regarding any wrongdoing by Respondent. Based on this record, there was simply a lack of clear and convincing evidence to support the allegation(s) that Respondent violated any statute, policy, or rule regarding her interaction with Z.N. Incident Involving Student A.C. A.C. was called by the School Board. He was Turnbull's fifth-grade student at Frontier. A.C. is now 13 years old and in seventh grade. On direct examination, he testified that he liked having Respondent as his teacher. He also recounted that there was not a time he did not want her to be his teacher or a time he did not want to be taught by her. Inconsistently, however, he also testified that he talked to his parents about getting him out of Respondent's class because she was rude and he did not want to be in her class. After he was no longer in her class group, there came a time when Respondent wanted A.C. to return to her group. A.C. testified that Turnbull came to get him and took him outside to talk. She stood close to him outside in a hallway alcove. He said that he was scared and nervous because he did not like the idea of a teacher talking to him. However, Respondent did nothing else to make him feel uncomfortable while they were standing in the hall. Respondent was merely talking to him. A.C. testified that when he spoke with Respondent in the hallway, she told him how much she liked him. She was not yelling or rude to him. This same hallway discussion between Turnbull and A.C. was apparently observed by Jacquelyn Marie Smith, a ten-year teacher at Frontier. She testified that one day as she was walking down the hallway with a few students, she observed Respondent and A.C. in the alcove of a doorway outside a classroom, standing about eight inches apart. It appeared to her that Respondent was speaking to A.C. and reprimanding him for something. She observed the look on A.C.'s face and could tell that he was very uncomfortable. However, she did not hear anything said by either Respondent or the student. She assumed the student was being disciplined based on his body stance and facial expressions. She did not observe Respondent place her hands on A.C. in the hallway. She testified that she observed the situation for "maybe 10 seconds."3/ There was nothing about Respondent's demeanor, posture, or anything else that led her to believe that Respondent was angry or upset. She never observed A.C. crying during her brief observation of this hallway encounter. Another teacher, Rosa Cabrera, testified that as she was passing by, she also saw Respondent in the hallway with her finger pointed at "J," a second-grader. Respondent was crouched down in the student's face saying things which Cabrera could not hear. She had no idea what Respondent was saying to the child. She did not hear anything, although she passed very close to Respondent and the student. The two were talking in a tone lower than a typical conversational tone. Like Smith, Cabrera found the fact that Respondent was standing so close to the student to be improper.4/ Respondent testified that A.C. was removed from her group for a period of time. She understood that he had gone home one day and expressed to his father that he was upset because he felt that she did not like him or that she had been mean to him and he did not want to go back to her class. When he was removed from her teaching group, Turnbull became concerned about A.C. not being provided the teaching instructions he needed. It was unrebutted that she exchanged emails with the assistant principal expressing her concern for him and her desire to work with A.C. again. As a result of her request, she was directed by the assistant principal to work with A.C. again. Respondent decided to speak to A.C. first to be sure that he was comfortable with her. She asked A.C. to come out of his class into the hallway, and they spoke in the hallway alcove. The alcove was the width of the door and perhaps an additional six inches on either side. She did this so that their conversation would not be overheard by classmates, would not embarrass him, and to ensure that A.C.'s privacy would be protected. She stood close to A.C. because there was little room in the alcove and she could hear his voice. She wanted to speak quietly and gently to him so that she would be more reassuring to him.5/ Respondent told A.C. that she understood that he felt that she was angry at him for some reason. She told him that she wanted to reassure him that she was not angry with him. Respondent told A.C. that there had been some misunderstanding between them and she would like to try to clear it up. She asked him how he felt about coming back into her class group, and told him that they missed him because he was a great addition to it. By the time the conversation was over, A.C. was smiling. They shook hands and said that they would see each other in group later that day. A.C. came to her group later that day and had an excellent session, smiling more than he had before. At no time in her conversation with him was there any scolding, anger, or cross words used. The evidence from the student, A.C., did not support a finding of any violations by clear and convincing evidence. What he did recall, and testify to, did not amount to infractions by Respondent. Likewise, the fellow teachers' unfavorable conclusions about what they observed in the hallway alcove were based on brief observations and did not constitute clear or convincing evidence of any violations. Incident Regarding Marisa Madzi Respondent "pushed in" to the classroom of Marisa Madzi, a third-grade teacher at Frontier.6/ Madzi alleged that Respondent "corrected her" in front of the class, although Madzi could not recall specifically what the correction was about. She recalled that Respondent "chimed in," telling her that she was wrong about a point or topic she had been explaining to her class. Madzi felt that Respondent acted in an unprofessional manner and that if she had an issue, she thought she should have addressed it afterwards and not in front of the class. However, Respondent's statement in front of the class did not cause her to stop her teaching. Respondent previously complained to Madzi that Madzi was loud in the classroom when she taught and that it was interrupting Respondent while she was working with her small group.7/ Respondent explained the incident in a different way. She was working with her students when one of them shared with her his response to Madzi's explanation of the answer. The student explained to Turnbull that he did not understand why his answer was wrong. She looked at the question and could see where his confusion came from. Either Madzi walked over to her to determine what she was talking to the student about or Respondent gestured for her to come over. She told Madzi that "I explained it to him, but you may want to go further into explaining to him why that's the right answer." Madzi had a reaction to being called over by Turnbull and said, "Okay, I will take care of it." Madzi had a funny look on her face that made Respondent uncomfortable. Thinking that Madzi may have been upset by their interaction in class, Respondent sent her an email (Resp. Ex. 40), saying that she did not intend to step on Madzi's toes. The purpose of the email was to apologize for giving Madzi the impression that she was correcting her. Turnbull testified that during the entire time that Respondent worked at Frontier, Madzi never spoke to her to suggest that there was anything about her, her teaching style, or her dealings with her students that she was uncomfortable with. The undersigned finds that there was not clear or convincing evidence to conclude that the incident in Madzi's class constituted a violation of any statute, policy, or rule. Incident Involving Rose Cabrera Rose Cabrera has been a teacher at Frontier for 12 years. She was driving home from campus one day and felt that Respondent was driving behind her in an aggressive manner.8/ The next day Cabrera approached Respondent on campus and said that she was the one that Respondent was tailgating and yelling at. She claimed that Respondent immediately got upset and started yelling at her and telling her that she was unprofessional. Cabrera then walked away. The next work day, Respondent stopped Cabrera in the hallway and asked to talk. Cabrera claimed that Respondent told her that "there were two possible reasons why people tailgate; either they are crazy or they have a problem, like something's going on." Cabrera testified that she walked away; but, that Respondent continued to yell at her, saying that she was unprofessional and pointing her finger at her. No students or other employees were present at either of these encounters between Respondent and Cabrera, and none were called to testify about them. Turnbull testified that she recalled the incident. She was running late for an appointment and was driving in a rush. She did not recognize the person driving the car in front of her. The next day, as she left the mail room, a person whom she did not recognize was blocking her way. The woman began to berate her, stating that Respondent had been tailgating her, that she was crazy on the road, that the woman had recently had an accident and was very nervous on the road, and that Respondent should not have been doing what she did. Respondent "could not get a word in edgewise." Neither woman was shouting. Shortly thereafter, Respondent saw Cabrera in the hallway and asked to speak with her. She tried to explain to her that she was sorry if she had upset her on the road. The two were talking over each other, but Respondent tried to explain that if somebody is behind her or beeping or waving or tailgating, she usually just gets out of their way, as obviously they are in a hurry for some reason. Cabrera said that she did not want to talk to Respondent. She had upset her the other day and was upsetting her again, so she walked away. As Cabrera was walking away, Respondent told her she was being unprofessional because she was not allowing Respondent to reply to the accusation. They never spoke of the matter again. The off campus incident on the road and the follow-up discussions on campus do not support a violation of any statute, rule, or policy by clear and convincing evidence. There was no credible evidence presented to suggest that any students or other staff members were affected, and the dispute was in the nature of a personal disagreement between Turnbull and Cabrera. This conduct and personal encounter, while regrettable, did not rise to the level of a violation of a statute, policy, or rule by Respondent. Incident in Alyssia Liberati's classroom. Alyssia Liberati worked as a teacher at Frontier for approximately 15 years. Respondent was teaching two students at the back table in her classroom, while Liberati was teaching the main class a social studies lesson. Liberati asked her students a question and, when some raised their hands, Respondent inexplicably raised her hand as well. The students thought that was funny. Liberati did not find Respondent's action to be appropriate because she was asking the children the question, not Respondent. Liberati could not remember whether Respondent was working with her students on a separate matter or whether they were included as part of the social studies lesson. Respondent claims they were coordinating their work, and one of her students wanted to participate in Liberati's question. Turnbull further testified that when the class was asked this question by Liberati, one of Respondent's own students had the correct answer. She encouraged the student to raise his hand and answer Liberati's question. When he just smiled, she offered to raise her hand for him, and he agreed. When she raised her hand, Liberati called on her. When the student would not answer, despite her encouragement, Respondent announced the student's answer and attributed it to him. Liberati said nothing to her then or after class and did not chastise her in any way, then or later. Respondent testified that part of her job was to help the English for Speaker of Other Languages (ESOL) students acquire oral language and the ability to socially interact and participate. She wanted to show the student that he should not be afraid of participating. Liberati continued on with her class and never suggested to Respondent that by raising her hand and offering her student's answer, she had disturbed her class. Empty Classroom Incident with Alyssia Liberati On another occasion, Respondent went to Liberati's classroom to "push in" and found the classroom dark and empty. Respondent waited for approximately ten minutes, thinking that the students may have been out of the room for some reason and would be late getting back. When the class never appeared, Respondent left. She wrote an email to Liberati, asking that she be notified in the future if the class and teacher were not going to be in the room at her designated arrival time.9/ Pet. Ex. 12. Liberati testified that she received an email from Respondent that night, which she characterized as requesting that she let Respondent know next time in advance if she was not going to be in the classroom because her time is valuable, that she does not have much time to go from one classroom to the next, and that she had wasted her time trying to find out where her students were. She responded to the email late that night, explaining about her daughter. She found Respondent's email to be offensive and inappropriate. The next morning, Respondent read the late night email from Liberati and, for the first time, found out about Liberati's daughter's situation. She responded immediately to Liberati and explained that at the time that she wrote her email, she had not known that Liberati's absence had been due to a family emergency. She also inquired about the well-being of her daughter. Pet. Ex. 12. Respondent further wrote, "No offense was intended," and "[S]o I hope none was taken." She followed up by going to Liberati's room in the morning to ask her if she had seen her email from that morning. Liberati replied that she had not yet seen it. Respondent explained to her that had she known that Liberati's daughter was ill, she would have never sent the email. Respondent told Liberati that her daughter takes priority and that she inquired as to how her daughter was doing. Liberati testified that she was offended by the email and that Respondent did not have to send it. She felt that Respondent could have asked another teacher where her students were. Respondent tried to explain to her that she had been instructed not to knock on other teachers' doors for any reason, so she did not-–as she did not want to disturb other classes. Nonetheless, Liberati was very angry with her. During Respondent's follow-up about the second email the next morning, Liberati felt that Respondent was in her personal space and she felt uncomfortable. She noted that Respondent's tone was very rude and confrontational and felt Respondent should not be speaking to her like that in front of the children in the hall. However, Liberati acknowledged that Respondent expressed to her in one form or another that no offense was intended. Liberati's coworker, Tara Levine, saw Respondent come down the hallway the next morning in what she described as a fairly aggressive manner, at a fast pace and with an annoyed look on her face. Levine observed a conversation between Liberati and Respondent which she felt was "a little heated." However, Levine admitted that she could not remember the conversation or its tone. She felt it was necessary to remove students from the area, which was in the hallway just before school started. Levine testified that Respondent's finger was in Liberati's face, although she observed that Liberati is much taller than Respondent, who was standing very close to Liberati. Levine never reported the incident to any administrator. Based on an objective view of the facts involving Liberati's classroom hand-raising incident and their exchange of comments regarding the empty classroom incident, there is no clear and convincing evidence that these events constituted a violation of any statute or rule. Respondent was attempting to coach her student to raise his hand when he had the right answer, and then modeled the hand-raising for him. Rather than doing something improper, Respondent was serving her student in a manner that caused no problem to Liberati. While Liberati may have been taken back by this technique, it did not constitute a violation of any rule or policy. Likewise, there was nothing improper about the email written by Respondent, who did not know about the ill child. When she found out, she responded appropriately and with due concern for the child, explaining that she did not know of the circumstances. Although the undersigned credits the observation by Levine, the hallway confrontation between Liberati and Respondent does not rise to the level of clear and convincing evidence to support a violation of statute, policy, or rule. Incidents Involving J.B. Respondent taught in a class of students with Janet Vino, a teacher at Frontier. Vino testified that Respondent was very aggressive toward her student, J.B. Respondent would get "in his face," speaking loudly enough for the rest of the class to hear. While Vino conceded that there was nothing inappropriate about reprimanding a student who is having behavior issues, Respondent did so in a way that Vino could hear Respondent as she was teaching her lesson off to the side. Vino described Respondent's demeanor with J.B. as very loud, with her being very close to him and with her fingers pointing in his face. Vino said that Respondent on occasion would ask her in class whether she had issues with him too. On occasion, J.B. would hide in the bathroom to avoid going with Respondent. When he would come out to go with her, he would be sulking. J.B. was in the midst of a number of family and legal-related problems, and he also had discipline issues. Vino acknowledged that she was never trained to avoid pointing your finger and shaking it at a student or not to "get too close to a student." Respondent conceded that she had problems with J.B. He would not do his work and was disruptive. J.B. would do disruptive things, like crawl under the work table and lift it up with his shoulders, while she was working with the other students. J.B. spoke to her disrespectfully at times and would hold up the class by taking his time getting started and by not being ready when she would arrive to pick him up. Sometimes he would go in the bathroom and would not come out. The effect of J.B.'s behavior on her teaching was to limit the time that she had available to teach him and other students in his group. It often took ten minutes to get J.B. to the room and seated at the table, before they could even get started. His behavior interrupted the lessons that Respondent was trying to teach and interrupted the learning of the other students. Respondent sought help with J.B. from his teacher, Vino, and Assistant Principal Witt. Respondent sought help from Vino one time in her classroom, calling her to ask if she could come over and help with J.B. because he was refusing to work and instead was writing on the worktable with a crayon. Vino never complained to Respondent about her request for help but seemed unwilling to help her with J.B. As a result, Respondent did not seek her assistance again. Turnbull sent emails to the principal and the assistant principal concerning J.B. and his problems at school. Respondent felt that J.B. was a special child who came from a difficult situation and that people at the school should be working to help him. She wanted to keep the administration informed regarding her dealings with him and how he was doing with her. Resp. Exs. 10, 11, 12, 15, and 24. Respondent made efforts to try to work with and communicate with J.B., notwithstanding his behavioral issues. She tried speaking to him directly and told him that his behaving was keeping him from learning and preventing the other student from learning. Respondent testified that she liked J.B., and, as disruptive as he was, she felt a great deal of compassion for him. She understood his bad situation at home and knew that his family was split up among foster homes. She believed that his disruptive behavior was attention-seeking and that he was an angry boy. The undersigned finds that the more credible and persuasive evidence establishes that Respondent had trouble with J.B., who presented a formidable challenge to teach. This very likely would have been true for any teacher dealing with him. Respondent sought help from his teacher and the administration. The observations and concerns raised by Vino, while understandable, do not rise to the level of providing clear and convincing evidence of a violation of any statute, policy, or rule. Behavior Observed by Principal Susan Groth Susan Groth has been the principal at Frontier for six years. She felt that the collegial and helpful climate at her school changed after Respondent came to the school. While offering no causal or underlying link to Respondent, Groth claimed that teachers became more reserved, no longer left their doors open in the morning, and had fewer interactions with one another. She claimed that this collegial atmosphere changed with Respondent's arrival.10/ Groth claimed to have personally witnessed that after certain encounters with Respondent, Community Language Facilitator Melady Roque would be shaken and crying.11/ Groth personally encountered combative behavior from Turnbull when she would try to have conversations with her. She also started to receive complaints from other teachers about Turnbull.12/ In response, she offered Respondent different training opportunities, which Respondent attended. Groth provided Respondent with two mentors for advice because she was new to the "push in" and "pull out" class system at Frontier. Groth was made aware of issues involving Respondent from other teachers within her first three weeks at the school. She received reports about Respondent concerning intimidation, humiliation, interruptions, unprofessionalism, and Respondent being very defensive.13/ However, she did not witness those encounters or behaviors herself. She noted that Respondent was defensive when she would provide constructive feedback to her. During one of her classroom observations of Respondent at work, a student misread certain sight words. Respondent nonetheless praised his work. Groth addressed the matter with her. She felt that Respondent's response to her counseling was very defensive. Subsequently, Groth gave a written observation report to Respondent. Respondent disagreed with several observation points made by Groth. She provided Groth with a written explanation setting forth her rebuttal and verbally defended her position.14/ Despite this, when Groth provided her with helpful resources and training to review, Respondent participated. However, Groth felt that Respondent did not accept her criticism very well. The issues that Groth had with Respondent were becoming less serious as time went on. It appeared to Groth that by January of Respondent's first year at Frontier, Respondent was beginning to properly adjust to the school environment and personnel. However, shortly thereafter, during an investigative meeting with Turnbull, Groth confronted Respondent with the names of several teachers that had complained about Respondent's behavior.15/ During the meeting, Turnbull had a pad of paper out and was bearing down hard and writing every time a new name of a witness was disclosed by Groth. At one point, she threw down her pencil on the table in frustration and stated, "This is horse shit." She did not throw the pencil at any person, nor did Groth think that it was her intent to do so. Respondent's union representative, at one point, had to calm her down because Respondent's arms were flailing, and she was explosive. Respondent used profanity during the meeting.16/ Despite Turnbull's actions, the process went on to completion. Neither Respondent nor her union representative ever asked for the meeting to be adjourned. Respondent's actions during that meeting were documented.17/ Pet. Ex. 11. Turnbull provided her version of this investigatory meeting with Groth. She received notification that an incident involving A.C. was being investigated. The notice of the meeting advised her that there was going to be an inquiry into an incident regarding A.C. At the meeting, other matters, unrelated to A.C., were brought up by the principal. Respondent objected to the other matters being raised. She felt that she had been "blindsided" and was being treated unfairly by consideration of matters that were not part of the official notice to her. Respondent became upset and started crying because these issues were statements made against her by colleagues, and she did not know so many people were upset with her. She testified that none of her colleagues ever approached her about any of these complaints or issues. She thought that the meeting was called to discuss one specific incident regarding one specific child. She was overwhelmed when she learned that there were so many complaints against her by teachers who had never said anything to her. Respondent was completely unaware that the statements from other teachers had even been taken. She admitted she felt betrayed and was extremely upset, stunned, and shocked. She did not threaten any person and did not confront any of the complaining teachers or staff members. Groth claimed to be worried about the safety and security of her staff and students, because of Respondent's profanity, emotional state, and explosive behavior at the meeting. Groth worried about Respondent "going after" one of the people on the list of witnesses announced at the meeting. After the meeting, Respondent was escorted off the campus without incident. Groth's belief that the mood at her school changed after Respondent arrived, without her own specific observations of conduct by Respondent, is nonetheless credited. However, her "sense" of an atmospheric change falls short of clear and convincing evidence of a violation of a policy or rule by Respondent. While Groth had the responsibility to observe and evaluate Respondent's performance, Respondent had the right to professionally and respectfully defend that performance in the observation conference. The manner of her evaluation performance defense does not violate any statutory policy or rule. However, the undersigned finds that Respondent's use of profanity and her unrestrained and explosive conduct, at the investigative meeting, were inappropriate and insubordinate. Petitioner provided sufficient and credible evidence to prove a violation of the rules and policies by clear and convincing evidence regarding her actions and conduct during this investigatory meeting with Groth. Other Relevant Events and Testimony From Respondent Aside from teachers who claimed difficulties or hostile encounters with Respondent, there were also teachers and colleagues who complimented her work and teaching methods. Janine Brockelbank has been a "push in" teacher at Frontier since 2003, like Turnbull. When she worked together in the room, she did not observe any problems with Turnbull. She observed Respondent working with Lisa Caprio's students, and the interaction seemed positive and professional to her. Turnbull often spoke closely and quietly to children in consideration of the privacy of the children and to prevent embarrassment. Brockelbank also stated that Respondent was cooperative and collaborative when they compared lesson plans with one another. Caprio taught at Frontier since it opened in 2001. She found Respondent to be on time and was always prepared to work with students. She promptly got started with the students and seemed to be ready to work with them. Caprio never had any issues with Respondent in her classroom. Caprio stated she did not find any issues with a teacher interrupting her lesson for assistance with a student. In her view, it was appropriate for a "push in" teacher to ask for her help with a student. Jennifer Eddy taught at Frontier for 13 years. Eddy observed Respondent work with her students. There was nothing that Respondent did while she was teaching in the same room that disturbed her or kept her from doing her job, nor caused her concern for the well-being of Eddy's students while they were taught by Respondent. Eddy thought that Respondent's one-on-one instruction seemed appropriate, collaborative, positive, helpful, and beneficial to the students. Catherine Burda is a 14-year veteran teacher at Frontier. She observed Respondent work hard and well with one of her students and felt she learned a lot from Respondent. Respondent had a good relationship with her students and came prepared each day. Burda wrote a positive and praising email to the principal regarding Respondent's work. Resp. Ex. 16. Burda appreciated that Respondent always spoke honestly and freely with her. Karen Lundgren worked with Respondent at H.L. Johnson and considered her to be a good colleague. Lundgren worked closely with Respondent, who was cooperative, collegial, and friendly. Respondent got along with students and taught them well. She acted professional and caring towards both students and colleagues. Smyrna Daumec, an 18-year teacher, taught with Respondent at H.L. Johnson. She found Respondent to be a good colleague because Respondent would contribute ideas on how they could work together and they shared lesson plans. Notably, she witnessed Respondent having professional disagreements with colleagues, but none of those professional disagreements adversely impacted her ability to teach. Respondent knew the material that she was teaching and was a cooperative coworker. Respondent was kind to the students and not belittling or mean. Parent S.S. had a daughter in Respondent's third- grade, gifted math class at H.L. Johnson. Her child learned and made progress in Respondent's class. Respondent remains her favorite teacher to this day. Her child learned and achieved in Respondent's class. Respondent consistently kept S.S. updated on her child's progress through email or notes in the agenda. S.S. never had any problems with Respondent, and her daughter had a good year of school when she was with Turnbull. She observed that Respondent interacted warmly with students and parents and acted very friendly and cheerful. Parent C.B. knew Respondent as a teacher for her two children at H.L. Johnson. When her children had Respondent as a teacher, they never acted or manifested a desire not to go to school. Respondent kept her updated on her children's progress, and she had open communication with Respondent while she was the teacher for both of her children. She found Respondent to be volunteering and helpful. She saw Respondent interact with other children in addition to her own when she was on campus and did not observe anything that was negative in those interactions. Her children had good years in school when they were in Respondent's class and seemed happy with her as a teacher, despite Respondent being a strict teacher. As a parent, C.B. was very happy with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order withdrawing the proposed five-day suspension and issuing instead a letter of reprimand to Respondent regarding her conduct during the investigatory interview with her school principal. DONE AND ENTERED this 9th day of March, 2017, 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 9th day of March, 2017.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Notice of Specific Charges.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities in Miami-Dade County. Respondent is employed by the School Board as a school bus aide. She is currently assigned to the John Schee Transportation Center. Respondent was initially hired by the School Board on September 8, 1992. She was terminated, effective October 31, 1995, for having been absent without authorization for three consecutive days. The School Board rehired Respondent on May 3, 2000, and assigned her to the Northwest Transportation Center. On October 11, 2002, Respondent was given her current assignment at the John Schee Transportation Center. As a school bus aide employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides, in pertinent part, as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: . . . . (2) separation, suspension, dismissal, and termination of employees for just cause; . . . . It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: A. Discipline or discharge of any employee for just cause; . . . . * * * Article XI of the AFSCME Contract is entitled, "Disciplinary Action." Section 1 of Article XI is entitled, "Due Process." It provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal.[2] A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (1.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary.[3] The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled, "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract[,] the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures. Section 4 of Article XI is entitled, "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four [sic] distinct types of separation. Voluntary-- . . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Chief Personnel Officer for Human Resources a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence.[4] Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- . . . . AFSCME, Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause. Layoff-- . . . . As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s], regulation[s], and [p]olic[ies]. If she does not, she may be disciplined pursuant to the AFSCME Contract.5 Among the School Board's "rule[s]" are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. * * * School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." School Board bus drivers and aides are governed by the following "[a]ttendance [p]olicy" set forth in the School Board Transportation Department's Handbook for Drivers, Aides and Operations Staff: Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract. AUTHORIZED ABSENCES For absences to be authorized, they must be reported to the driver's or aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time, but no later than before the next scheduled report time. Even in an emergency, every possible effort must be made to inform the Dispatch Office. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Leave forms must be completed promptly for payroll purposes. UNAUTHORIZED ABSENCES Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver or aide does not report to work within 15 minutes after the scheduled report time, or does not call in absent before the report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. Additionally, any employee who does not have available sick/personal time may be charged with an unauthorized absence. NOTIFICATION OF ABSENCES -Drivers and aides must notify their Transportation Center[']s Dispatch Office as soon as they have determined they cannot report to work. Drivers are not to make arrangements on their own for a substitute. All arrangements must be made by the Dispatch Office. -If a driver will not be reporting for work on regular school days, the driver must call in immediately and speak with the Dispatcher, or the Field Operations Specialist. -If a driver cannot report to work because of an emergency situation, the driver must contact the Dispatch Office as soon as possible. If the situation requires a driver to leave the area, the driver should have a relative or friend contact the office for the driver. -If the absence will occur sometime in the future, the Dispatch Office should be given as much advance notification as possible. -When the Dispatch Office is contacted, an explanation for the absence should be given along with the length of absence and estimated date of return. -If the driver is off from work for more than one day, the driver must contact the office each day, prior to the report time, with a complete update of the situation. The only times the driver does not have to contact the office on a daily basis are as follows: -Admission to a hospital as a patient -Maternity leave -A doctor's work release for a specified number of days -Extended sick leave -Approved leave of absence -Out of town CHECK-IN POLICY -All employees are expected to arrive at work on or before their scheduled report time. -Drivers and aides will be given a five minute grace period to report to work, during which no disciplinary nor financial actions will be taken. For example, if the driver or aide is scheduled to report for work at 6:00 a.m., but signs-in by 6:05 a.m., the driver or aide will be allowed to go out on the assigned route with no repercussions. -Drivers and aides who report to work 6-15 minutes after the scheduled report times will be considered "tardy." Tardy drivers and aides will be permitted to work. However, the dispatch may assign a stand-by or substitute driver or aide to the route of the tardy employee. Drivers and aides who are more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers and aides and will not be allowed to operate their regularly assigned route. For the tardy driver or aide who was replaced by a substitute or stand-by driver or aide, such driver or aide will then be assigned as substitute for other routes needing coverage, as requirements dictate. A record will be kept documenting all tardiness. Lost time will be accumulated for tardiness and employees will be docked pay in 1/2 day increments. -Drivers and aides who report to work 16 or more minutes after the scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on "unauthorized leave-without pay" (ULWOP) and will be subject to disciplinary action in accordance with the American Federation of State, County, and Municipal Employees (AFSCME) Collective Bargaining Agreement -Extenuating circumstances will be evaluated by the Center Director and, upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. DOCUMENTATION It is the responsibility of the drivers and aides to report to the supervisor in order to complete and/or produce all required paperwork related to the absence on the first workday upon return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. During the time she has been assigned to the John Schee Regional Transportation Center, Respondent has had a history of poor attendance, which has adversely impacted the operations of the center. On February 21, 2003, Respondent was issued a verbal warning for an unauthorized absence. On March 20, 2003, Respondent was issued the following written warning regarding her attendance by Dr. Michael Exelbert, a Coordinator III at the John Schee Regional Transportation Center: Payroll records indicate that you have accrued 7 days of Unauthorized Leave Without Pay and/or Tardies. Records indicate you were verbally warned regarding this issue on Feb. 21, 2003. Article V, Section 27 of the contract between Miami-Dade County Public Schools and AFSCME 1184 states: "Unauthorized Absence - Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI." Article XI, Section 4B of the contract between Miami-Dade County Public Schools and AFSCME 1184 states: "Excessive Absenteeism/Abandonment of Position - An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence." Section 9 of the M-DCPS, Department of Transportation Handbook for Drivers, Aides and Operations Staff addresses the department's Attendance Policy. It states: " Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract." This section addresses: 9.1-Authorized Absences, 9.2-Unauthorized Absences, 9.3- Notification of Absences, and 9.4-Check-In Policy. You are instructed to review this section of your handbook. Deficient performance exhibited by the accrual of unauthorized absences and/or tardiness negatively impacts the department, coworkers and the educational program of the students we serve. This behavior is unacceptable and must be corrected by reporting to duty when scheduled and reporting on time. With this memorandum, you are warned that future occurrences of Unauthorized Absences and/or Tardies will lead to progressive disciplinary action compliant with District policies and procedures and the contract between M-DCPS and AFSCME Local 1184. Be advised M-DCPS has a District Support Agency that may be able to assist you regarding attendance deficiencies and can be reached at . . . . You are encouraged to contact them for assistance in regards to your attendance deficiencies. Please contact me if additional information is required. Respondent signed this written warning, acknowledging receipt thereof, on March 26, 2003. On October 23, 2003, Mr. Exelbert held a conference- for-the-record with Respondent to discuss "attendance requirements." The following day, Mr. Exelbert prepared a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A Conference-For-The-Record was held in my office on Thursday, October 23, 2003. You were asked if you were a member of the Union. You indicated that you were, but did not seek representation. Present at the meeting was Cynthia Brown, Bus Attendant, and this administrator. You were told the purpose of today's conference was to review attendance requirements. You were given a copy of the Notification of this Conference-For-The-Record. You acknowledged receiving and signing receipt for today's Conference-For-The-Record. You also received: a copy of all LWOP-U absences since your written warning and a copy of your M-DCPS screen 026 leave status dates. You received a Verbal Warning about your LWOP-U absences on February 21, 2003, and a written warning about you[r] LWOP-U absences on March 20, 2003. During those meeting the following LWOP-U absences were discussed. November 22(D), 2002. December 05(A), 06(D), 09(D), 10(D), 11(D), 20(P), 2002. February 04(P), 06(A), 11(A), 13(A), 14(P), 20(D), 24(D), 25(A), 2003. March 06(A), 10(D), 11(D), 12(D), 13(D), 2003. For today, the following LWOP-U attendance days since the Written Warning on March 20, 2003 were discussed: March 27(A), 2003. April 11(D), 17(A), 21(A), 23(D), 24(D), 2003. May 09, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, 30, 2003 (ALL Days). June 02, 03, 04, 05, 2003 (ALL Days). August 26(A), 29(A), 2003. September 04(A), 05(A), 11(A), 2003. A total of fifty occurrence of LWOP-U The seriousness of missing work and good attendance was discussed. You were given copies of Section 9 (Attendance Policy) from the Handbook of School Bus Drivers, Aides and Operations Staff. You indicated that you would bring documentation to change the unexcused absences of: April 11, 17, 21, 23, 24, 2003, May 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, 30, 2003, June 02, 03, 04, 05, 2003, (due to medical problems that you experienced at those times), and that you could bring in other documentation for: August 26, 29, 2003 and September 04, 05, 11, 2003, as a result of domestic problems you experienced at those time, from unacceptable to LWOP-A. You were asked if you had any other comments. You indicated that by Friday, October 31, 2003, you would bring in additional documentation for other dates listed above. You were told that this case would now be sent to Mr. George C. Millar, Director of the John Schee Regional Transportation Center and possibly to the Office of Jerry Klein, District Director, Department of Transportation Administration for further review. You were told that a summary would be prepared of today's session. You were apprised of your right to append, to clarify, or to explain any information recorded in this conference, by this Summary. You were asked to review this summary on Monday October 27, 2003, after 8:30AM, in Gail Allen, the Executive Secretary's Office. Respondent signed this memorandum, acknowledging receipt thereof, on October 29, 2003. Mr. Exelbert referred Respondent to the School Board's Employee Assistance Program for help in dealing with problems affecting her attendance. George Millar, the Director of the John Schee Regional Transportation Center, held a conference-for-the-record with Respondent on February 13, 2004. On February 17, 2004, Mr. Millar prepared a memorandum in which he summarized what had transpired at the conference. The memorandum read, in pertinent part, as follows: * * * CONFERENCE DATA It was stated that over the previous 12- month period, excluding summer, you have accrued 35.5 days of unauthorized absences. It was noted that several days previously unauthorized had been changed to authorized with a current net total of 35.5 days . . . . It was noted that the 35th day does not show on the report because the pay period just closed. A review of the record showed the following incidences attempting to assist you improve your attendance: Verbal Warning - February 21, 2003 Written Warning - March 20, 2003 . . . Conference for the Record - October 23, 2003 . . . . District Support Agency Referral - October 23, 2003 . . . . You were asked to present any additional documentation or response to address the issues presented. You stated that you were ill at the end of last year and you brought documentation. During a portion of that time you were hospitalized. You were instructed to submit documentation and it would be reviewed and considered for changing the identified absences to authorized. Your AFSCME Representatives were asked if they had any comment, Mr. Houghtaling said no. Action Taken The following section of the contract between Miami-Dade County Public Schools and AFSCME Local 1184 and Department of Transportation Handbook were reviewed and you acknowledged understanding their meaning and intent Article V, Section 27 . . . . Article XI, Section 4, Paragraph B . . . . Section 9 Attendance - M-DCPS, Department of Transportation Handbook for Drivers, Aides and Operations Staff . . . . The following instructions were given at the conference: Report for duty each day and shift that you are scheduled to work. Call in or submit a leave card in advance of your reporting time when you intend to be absent. Present documentation for absences not covered by accrued leave time to this administrator or Dr. Michael Exelbert upon your return to duty. Conclusion You were instructed that this conference would be summarized and forwarded to the Administrative Director, Department of Transportation, and the Office of Professional Standards for review and subsequent disciplinary action as merited. You were informed of your right to appendage (provide a written statement), which will be attached to the conference summary if you feel any facts or information is misrepresented or statements omitted which occurred during the conference. You will have 24 hours from receipt of the conference summary to submit this appendage. These statements concluded the conference. Respondent signed this memorandum, acknowledging receipt thereof, on February 24, 2004. Barbara Moss, the School Board's Office of Professional Standards' District Director, held a conference- for-the-record with Respondent on March 16, 2004, to discuss Respondent's absenteeism and her "future employment status" with the School board. In the 12-month period prior to this conference, Respondent had been absent a total of 72 days and had 33.5 days of unauthorized absences. On March 24, 2004, Ms. Moss prepared and furnished Respondent a memorandum in which Ms. Moss summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Ms. Moss wrote the following: Action Taken You were advised of the availability of services from the District's support referral agency. The following directives are herein delineated which were issued to you during the conference concerning future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. George Millar or designee. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Millar or designee upon your return to the site. Failure to comply will result in the absence being recorded as Leave Without Pay, Unauthorized (LWOU). During the conference, you were directed to comply and provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4E-1.01, Absences and Leaves. You are advised of the high esteem in which employees are held and of the District's concern for any behavior, which adversely affects this level of professionalism. Action TO Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of District Compliance Units, the Administrative Director of Transportation, and the Director of [the] John Schee Transportation Center. Upon completion of the conference summary, a legal review by the School Board attorneys will be requested. Receipt of their legal review with endorsement by the Chief Communications Officer, will compel formal notification of the recommended disciplinary action. All disciplinary actions will be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. You were apprised of your right to clarify, explain, and respond to any information recorded in this conference by this summary, and to have any such response appended to your record. At its June 16, 2004, meeting, the School Board "took action to suspend [Respondent] and initiate dismissal proceedings against [her]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board pursuant Article XI, Section 4B, of the AFSCME Contract. DONE AND ENTERED this 22nd day of March, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2005.
