The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a paraprofessional, non-instructional employee at all times relevant to these proceedings. Respondent School Board is the body politic responsible for the administration of public schools within the Suwannee County School District. Petitioner was a member of the non-instructional chapter of the United Teachers of Suwannee County, Florida, and was subject to the terms and conditions of the collective bargaining agreement between that organization and Respondent. Additionally, Petitioner’s employment was subject to the terms and conditions set forth in the Continuing Contract of Employment Non-Instructional Education Support Employees of the Public Schools executed between Petitioner and Respondent. Petitioner worked at the Suwannee Primary School in Live Oak, Florida. Petitioner’s work schedule required him to work Monday through Friday of each work week. Petitioner’s duty day started at 7:30 a.m. and ended at 2:40 p.m. Marilyn K. Jones, the principal of the Primary School, was Petitioner’s immediate supervisor. Although their surnames are the same, Principal Jones and Petitioner are not related. Petitioner approached Jones on February 14, 2005, and spoke with her regarding his recent employment with a state prison. Petitioner informed Jones that he had been hired as a corrections officer and that he was required to attend orientation and training sessions. Petitioner informed Jones that the initial orientation and training sessions were held during times he was required to work at the Primary School. Petitioner asked for a couple days off from his work at the Primary School to attend these initial sessions. Petitioner was hopeful that once the training and orientation sessions were completed, his work hours with the state prison would be from 4:00 p.m. to 11:00 p.m. and would not interfere with his employment with Respondent. Jones informed the Petitioner that he could use personal leave time that he had accumulated to attend the orientation and training sessions. Jones requested that Petitioner keep her posted regarding the days he would be absent and directed him to complete and submit the forms required to take leave prior to the actual absences so that arrangements could be made for substitute personnel to assume Petitioner's duties. Petitioner did not, however, submit the proper leave forms and the training period at the prison was longer than the originally expected. Additionally, after discussions with the payroll Department, Jones learned that the Petitioner did not have enough accumulated leave time to allow for his previous absences. Jones and the Petitioner had a telephone conversation on March 5, 2005. Jones informed Petitioner that he had been absent more times than their initial understanding, that he had failed to submit the leave forms in advance of the days he would be absent, and that he did not have leave time available. Petitioner apologized for the additional time that he had been absent and again noted that he thought that after the first few days of training, his work at hours at the prison would be from 4:00 p.m. to 11:00 p.m. Jones told Petitioner that his continued absences would be unauthorized and that she did not want him to be fired for taking unauthorized leave. Jones informed the Petitioner that if he wished to resign, he could submit his resignation to her. On March 7, 2005, Petitioner met with Jones and her assistant principal Betty Ann Sumner, along with Sheryl Daniels, the president of the Teacher’s Union, to discuss Petitioner’s absences. Petitioner expressed his desire to work three days a week at the Suwannee Primary School and the other two days at his job with the prison. Jones reiterated her previous statements to Petitioner that she was concerned for him and did not want the School Board to terminate his employment based on his absenteeism. Jones informed Petitioner that he had taken days off from work without providing any advance notice and advised that in the event of future absences, Petitioner must submit the appropriate forms in advance. When Petitioner raised the subject of a leave of absence until the fall semester so that he could schedule his employment with the prison and Respondent to avoid time conflicts, he was referred to Respondent's district office. Subsequently, Petitioner requested a 10 week leave of absence with the Superintendent of the Suwannee County School District, J. Walter Boatright, to continue to pursue training as a corrections officer. Under School Board policy, an absence in excess of five days has to be approved by the School Board. Boatright declined to bring Petitioner’s request for leave to the Suwannee County School Board based on his view that the Board’s policies did not allow an employee an extended leave of absence to receive training for an unrelated second job, that the end of the school year was approaching, and that the School District needed the presence of all of its employees. As established by Boatright's testimony, Respondent often has difficulty finding substitute personnel when its employees are absent for wholly legitimate reasons. Boatright informed Petitioner that he would not recommend that the School Board approve Petitioner’s request and would not bring Petitioner’s request to the School Board for its consideration. Additionally, Boatright recommended that the School Board deny Petitioner’s request for leave for the days that he had already been absent. Petitioner never personally appeared before the School Board to submit his request for personal leave. After Boatright's decision was communicated to him, Petitioner was again absent without leave on several occasions. Petitioner met with Boatright on March 24, 2005. At that meeting, Boatright warned Petitioner that he faced disciplinary action, including termination from employment if he continued to be absent from his non-instructional position without leave. In response to Boatright’s warnings, Petitioner said, “Anybody can do what I do” and suggested that Boatright simply obtain a substitute teacher to fill his position. Following Petitioner's remarks, Boatright informed Petitioner that his role with the Suwannee County School District as a paraprofessional, non-instructional employee was important. Sheryl Daniels, the president of the United Teachers of Suwannee County was also present at the meeting on March 24, 2005, with Boatright and Petitioner. Daniels asked Boatright to reconsider Petitioner’s request for leave because Petitioner had been a good employee in the past and this should merit some additional consideration. Boatright, however, denied Petitioner’s request for leave. Later, Petitioner received a letter dated April 20, 2005, from Boatright, confirming and reiterating the warning delivered to Petitioner during the March 24, 2005. In this letter, Boatright, advised Petitioner “that any further absence without leave on your part after the receipt of this letter will result in my recommendation to the Suwannee County School Board for your termination.” Subsequent to Petitioner’s receipt of the April 20, 2005, letter from Superintendent Boatright, Petitioner was again absent without leave in late April and in May of 2005. On April 28, 2005, Petitioner received his annual employment evaluation. The evaluation was performed by Jones, his principal. An employee’s overall evaluation rating is determined by adding the employees’ scores in seven different categories. Although Petitioner received an overall rating of “Effective,” Petitioner’s rating with respect to his professional responsibilities was “Needs Improvement.” Jones’ evaluation noted that although Petitioner did a good job in the computer lab, his frequent absences were a concern and that student behavior had deteriorated in Petitioner’s classes when he was absent. On April 28, 2005, Boatright filed a petition with the School Board to terminate Petitioner’s employment. A hearing was scheduled for May 15, 2005. The School Board rescheduled the May 15, 2005, hearing, however, when Petitioner requested additional time to prepare for the hearing. Thereafter, Petitioner was served with an Amended Petition for Termination of Employment filed by Boatright. The Superintendent’s Petition for Termination of Employment charged Petitioner with violating Suwannee County School Board Policy Section 6.22, which states, “[a]ny employee of the District who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and the employee contract shall be subject to cancellation by the School Board.” By letter dated May 31, 2005, Petitioner submitted a letter of resignation to Respondent. In that letter, Petitioner wrote that he was submitting his resignation due to the denial of his request for an unpaid leave of absence and the need to avoid further damage to his reputation. Petitioner also stated in the letter that he thought he had been the subject of discrimination and was left with no alternative but to resign his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 5th day of July, 2006, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2006. COPIES FURNISHED: Mike Jones Post Office Box 372 Live Oak, Florida 32064 Andrew J. Decker, IV, Esquire Andrew J. Decker, III, Esquire Post Office Box 1288 Live Oak, Florida 32064 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue posed for decision herein is wither or not the Petitioner, Sandra Carter's discharge by the Respondent on May 1, 1979, should be upheld based on Respondent's contention that the Petitioner "feigned sickness" after she had requested leave without pay which was denied.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Sandra J. Carter, petitioner, had been employed by the Lee County District School Board as a bus driver for more than three (3) years when she was terminated on May 1, 1979, for "unexcused absences". On April 12, 1979, Petitioner filed a personal leave request for permission to be absent from her job as a bus driver for the Lee County Public School System in order to attend the Supreme Session of the White Shrine in Des Moines, Iowa, on April 30 through May 4, 1979. 2/ The leave request was reviewed by the Director of Transportation and the Superintendent of Schools on April 23, 1979. The request was denied and Petitioner was so advised. (Respondent's Exhibit 3.) On or about April 26, 1979, Petitioner called in sick and, thereafter, presented an excuse from her doctor, G. Thomas Hinkle, M.D., which contained a diagnosis with physician's notes to the effect that the Respondent should be excused from work for one week based on her diagnosed diarrhetic condition. (Petitioner's Exhibit 2.) On May 1, 1979, Assistant Superintendent Cecil A. Waldron telephoned the Veteran's Memorial Auditorium in Des Moines, Iowa, at approximately 3:15 p.m. and requested that Petitioner return his call in Fort Myers. Petitioner did so and it was this telephone conversation which confirmed Petitioner's presence at the White Shrine Convention in Iowa. As a result thereof, Petitioner was discharged for being absent without leave for "feigning sickness after she had been specifically warned in advance". During her employment with Respondent, Petitioner has always received satisfactory or above satisfactory evaluation ratings. (Petitioner's Exhibit 1.) Lorraine McGlohon, Respondent's supervisor, has evaluated Petitioner's performance since the outset of her employment with the School Board. Ms. McGlohon dispatched Anna Rich (another driver) to Petitioner's home to pick up the doctor's excuse on April 26, 1979. Thomas G. Lane, Respondent's Transportation Director, testified that there is no policy which permits drivers to operate school buses while they are taking medication. Director Lane further testified that bus drivers are not permitted to stop loaded buses to relieve themselves. Witnesses Erma and James Huntley testified respecting the Respondent's physical condition during the period leading up to the Shrine Convention in Des Moines. The Huntleys testified that they were concerned about Petitioner's condition to the point where they felt that she should not attend the convention. The Huntleys testified that Petitioner was the outgoing High Priestess, which is synonymous to the "President" of the White Shrine and, as such, was automatically authorized to attend and represent the local chapter at the convention. Helen Bartholomew attended the Shrine Convention along with the Petitioner and testified that they left on Saturday, April 28, 1979. According to Ms. Bartholomew, the local chapter members who attended the conference drove to Tampa on Saturday, April 28, 1979, and flew from Tampa to Des Moines, Iowa, the following day. Ms. Bartholomew testified that Respondent showed effects of the diarrhetic condition when she attended the various meetings and frequently had to absent herself from sessions during the convention. She testified that Petitioner did not appear "peppy" during the convention, did not engage in any hilarity nor drink alcoholic beverages during any of the sessions. She testified that Petitioner did not attend numerous banquets. Petitioner testified on her own behalf and indicated that she initially filed her application for personal leave during early January of 1979. She further testified that she later filed another leave request during mid-April, 1979, and was later told of the Board's denial during mid-April. At that juncture, Petitioner gave her banquet tickets to other members that were attending the convention. Petitioner felt despondent when she was informed that her leave request had been denied. Petitioner, during this period, was dizzy, light-headed and often took medication for diarrhea. She testified that Anna Rich, another bus driver, was dispatched to her house to pick up the doctor's authorization requesting that she be confined for one week due to the diarrhea. Petitioner also testified that she frequently needed to relieve herself during this period and that it was impossible for her to have driven the school bus based on outstanding policies issued by the Board to the effect that bus drivers should not stop their buses to relieve themselves when students were on the bus. In this regard, Dr. Hinkle, by letter dated September 24, 1979, related Petitioner's diagnosed diarrhetic condition. Dr. Hinkle stated that Petitioner's working diagnosis was that of "spastic colitis". Dr. Hinkle stated that the diarrhea actually began approximately three weeks prior to Petitioner visiting his office, or about April 26, 1979, and that the condition persisted through early June, 1979. Dr. Hinkle expressed his feeling that "during her period of having diarrhea, she was unable to drive the school bus". (Petitioner's Exhibit 3.) Dr. Hinkle's written diagnosis is corroborative of Petitioner's sworn and credible testimony. Virginia Nestor, also an employee of the Transportation Department in Lee County, was Petitioner's immediate supervisor when the subject incident occurred. Ms. Nestor testified that Petitioner phoned her on the evening of April 25, 1979, and advised that she had either a kidney or bladder infection which necessitated her visiting a doctor the following day. Ms. Nestor gave her approval and indicated that she would pass the leave request on to Ms. McGlohon. When Ms. McGlohon received Petitioner's sick leave request, she dispatched Anna Rich to Petitioner's residence at 1:30 p.m. on April 26, 1979. Ms. McGlohon considered the leave request suspicious inasmuch as Petitioner had advised her that she would be attending the Shrine Conference in Iowa during April, 1979. Ms. McGlohon received Petitioner's leave request during January, 1979, but either lost or misplaced it. Ms. McGlohon advised Petitioner when the second request was submitted that it was doubtful that the leave would be granted due to the shortage of drivers and the "double runs" that the available drivers were making. Ms. McGlohon related the fact that the "double runs" result in students arriving late for school. Likewise, the affected students also return home later than usual. Ms. McGlohon testified that when Petitioner's leave request was denied on April 17, 1979, a meeting was held based on a request by Petitioner's husband, an AFSCME representative and Petitioner. Ms. McGlohon testified that Petitioner renewed her leave request to attend the convention, which request was again denied. Although the facts surrounding Petitioner's attendance at the Shrine Convention in Des Moines, Iowa, appear suspicious, it is uncontroverted that Petitioner suffered from a diarrhetic condition during the period in which the convention was held. However, suspicion is no substitute for proof. Without question, Petitioner attended the convention in Iowa. Nevertheless, it is also clear that had she been in Fort Myers, she could not have fulfilled her duties as a bus driver based on the diagnosis, treatment and convalescence prescribed by her physician, Dr. G. Thomas Hinkle. For this reason, the undersigned is forced to conclude that Petitioner's sick leave request should have been honored by the Respondent in view of its outstanding policies condemning the practice of bus drivers reporting for work in a condition which hampers their ability to perform as required. Based thereon, I shall recommend that the Petitioner's termination be rescinded and that she be reinstated with back pay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner, Sandra J. Carter, be reinstated to her former position with back pay from the period in which she was terminated through the date that she is offered reinstatement to her former or substantially equivalent position. RECOMMENDED this 8th day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue for disposition is whether Barbara Higgins should be suspended for a period of three days without pay because she allegedly "frisked" an employee on October 11, 1989.
Findings Of Fact Barbara Higgins is employed by the School Board of Seminole County as Supervisor of Operations for the transportation department. She began service with the board in 1966, working as a bus driver, then moved up to the position of trainer, then to area supervisor, and into her current position in 1986. Ms. Higgins supervises approximately 300 employees, including an assistant supervisor of operations, six area supervisors, all of the bus drivers, bus monitors, dispatchers, and office personnel. Thomas Preston, Assistant Director of Transportation, is her immediate supervisor; Benny Arnold is Director of Transportation; and Richard Wells is the Assistant Superintendent of the School Board of Seminole County, in charge of the transportation department. On October 11, 1989, Barbara Higgins was in a county vehicle driven by Thomas Preston, with Tyrenna Gouvia, Assistant Supervisor of Operations, and Kathy Chapman, who had recently been promoted to Area Supervisor. The group had been to the county office and had stopped for lunch to celebrate Ms. Chapman' s promotion. On the way back to the bus compound, Ms. Gouvia saw Seminole County school bus number 65 and said in an excited voice that she needed to "follow that bus". Ms. Gouvier had been notified earlier in the day that a driver had failed to pick up a student bound for Milwee School. The phrase, "follow that bus", led to laughter and kidding regarding being in hot pursuit, and a game of cops and robbers began. Although bus number 65 is a spare bus and does not ordinarily pick up for Milwee, the group, joking and horsing around, followed the bus into the compound. As bus number 65 pulled next to one gas pump, Thomas Preston pulled into the adjacent island. As the bus driver, Geraldine Cozad, exited the bus to obtain gas, Barbara Higgins got out and approached her asking, "You don't go to Milwee do you?" Laughing, Ms. Higgins then said "I'll frisk you anyway" (or words to that effect), and "Put your hands on the bus." Geraldine Cozad turned, put her hands on the bus and Barbara Higgins lightly patted her three or four times on her sides. To the witnesses, Ms. Cozad appeared to be participating in the joke and was laughing as well. Then Ms. Higgins turned to her companions in the car and said, "She's clean." She got back in the car and the group left the gasoline pump area. Leonard Williams, a custodian at the bus garage observed the incident from a nearby gas pump. He asked Ms. Cozad why Barbara frisked her, and she replied that she did not know. He had seen the group laughing and grinning, like they were having fun, including the bus driver. Ms. Cozad got her gas, gave Mr. Williams her mileage, and left. Roberta Trammell was a bus monitor on bus number 65 on October 11, 1989. She did not witness the actual "frisking" from her seat on the bus, but heard Ms. Cozad laughing. Ms.Cozad proceeded to run her normal route the rest of the day and did not appear to be upset or nervous. The next afternoon, Geraldine Cozad talked to Union President Caroline Perry, at Longwood Elementary School, a stop on her route. She was advised to contact Nancy Wheeler, the executive director of Seminole County School Bus Driver's Association, Inc. (the union). Nancy Wheeler contacted Richard Wells and also sent a letter to the school board superintendent, Robert Hughes, demanding that Barbara Higgins and Thomas Preston be terminated. Richard Wells and his Director of Transportation, Benny Arnold, investigated the incident. When Benny Arnold asked Barbara Higgins what happened, she was surprised that anyone was inquiring. Ms. Cozad refused to come in to discuss the incident and Richard Wells had the impression that she did not want to talk without her attorney. Initially the supervisors felt that Barbara Higgins should apologize, and she agreed to do so. The letter from the union convinced them that it was not considered a minor incident, and more stringent discipline was recommended. Publicity of the incident caused factional disputes in the agency, with some groups arguing that Barbara Higgins was a victim, and with others taking Geraldine Cozad's side. The event exacerbated friction between the union and management and both Wells and Arnold spent many hours investigating and trying to resolve the conflict. In a letter dated November 16, 1989, Benny Arnold notified Barbara Higgins that he was recommending a suspension of three days without pay because of the October 11th incident. The letter states, in part: "I do not feel that your actions were intentional or malicious. However, an employee did suffer embarrassment from the incident. A higher level of conduct must be expected from administrators in positions similar to yours. [School Board Exhibit #3] Robert Hughes, Superintendent concurred with the recommendation in a letter dated November 20, 1989. Geraldine Cozad was embarrassed, although she never communicated that directly to any of the supervisors at the transportation department, nor did she appear upset to the witnesses of the event. Barbara Higgins had no intentions to embarrass anyone. The type of joking and fooling around that occurred on October 11th was common in the transportation department, where an atmosphere of light camaraderie alleviated stress. Prior to the incident, Barbara Higgins had an excellent rapport with her staff. She usually arrived at work at 5:30 a.m. and was the last to leave in the afternoon. She came up through the ranks and was respected. Some described her as a "mother figure". She has always received at least satisfactory annual performance evaluations, and in twenty-four years with the school board her only discipline has been a single verbal reprimand. On her personnel evaluation, dated 11/17/89, after the incident she was rated "outstanding" or "satisfactory" in all areas except judgement, which was rated "needs improvement". The school board has no progressive disciplinary guidelines nor any rules or guidelines on touching or joking among the employees. The bus drivers have in the past hired strippers to come perform on the occasion of someone's retirement, without apparent embarrassment to others and without disciplinary consequences. It is axiomatic that supervisors should conduct themselves in a manner consistent with their managerial responsibility, that they should avoid inappropriate embarrassment or harm to their subordinates and should strive for efficient operations and smooth labor relations. In retrospect, Barbara Higgins' conduct was inappropriate because of the effect it caused. She is recommended for discipline not because of her joking, but because of the way the joke was perceived and she had no warning of that effect. That effect was not foreseeable in the silliness of the moment. Ms. Cozad's account of the "frisking" is an intrusive prolonged and thorough patting or feeling of most of her body. She may truly believe that is how she was touched; such touching would have been undeniably improper. The weight of the evidence does not support her account. Every other witness, for both the school board and Ms. Higgins, established in competent, credible testimony that the alleged "frisking" did not resemble a real frisking as by a law enforcement officer seeking contraband, but rather consisted of quick, cursory pats on Ms. Cozad's sides. According to Ms. Higgins' supervisors, she is being disciplined for "frisking" her employee, not for joking with her. The evidence establishes that the incident was a joke and was not a "frisking" in the objective sense, or a "search" of Ms. Cozad. The discipline is, therefore, unwarranted.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a Final Order be issued by the School Board of Seminole County rescinding its notice of three day suspension of Barbara Higgins, and dismissing the petition of Thomas Preston. DONE and RECOMMENDED this 14th day of May, 1990, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 89-6999, 89-7001 The following constitute specific rulings on the parties' proposed findings of fact. THE SCHOOL BOARD OF SEMINOLE COUNTY 1. Adopted in number 1. 2. through 4. Adopted in number 2. 5. Adopted in number 3. 6. through 8. Adopted in number 4. 9. through 14. Adopted in substance in number 5. Adopted in substance in numbers 6 and 7. Adopted in substance (as to Ms. Cozad's subjective perception) in number 18. Adopted in numbers 8 and 7. 18, 19. Adopted in numbers 10 and 11. 20. through 22. Adopted in number 12. Rejected as unnecessary. Adopted in number 12. Rejected as contrary to the weight of evidence. Adopted in part in number 16, otherwise unnecessary. Adopted in number 17. Rejected as unnecessary. Adopted in number 13. Rejected as redundant and unnecessary. Rejected as contrary to the weight of evidence. Adopted in number 15. 33 and 34. Rejected as unnecessary. BARBARA HIGGINS Adopted in number 1. Adopted in number 15. Adopted in numbers 3 and 4. Adopted in number 5. through 7. Rejected as summary of the testimony, however the facts based on that testimony are found in numbers 5 through 7. Adopted in part in number 8, otherwise unnecessary. Adopted in part in numbers 14 and 19, otherwise unnecessary. Adopted in number 15. Adopted in part in numbers 10 and 11, otherwise unnecessary. Adopted in number 16. COPIES FURNISHED: Donna L. Surratt-McIntosh, Esquire Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons P.O. Box 1330 Sanford, FL 32772-1330 John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, FL 32308 Robert Hughes, Superintendent School Board of Seminole County 1211 Mellonville Avenue Sanford, FL 32771 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Leslie Weaver Procedural Safeguards Department of Education 325 West Gaines Street, Suite 614 Tallahassee, FL 32399-0400 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons P.O. Box 1330 Sanford, FL 32772-1330
The Issue The issues to be determined in this proceeding are whether St. Lucie County School Board (School Board) Rules 6.16 and 6.50*+ are invalid exercises in delegated legislative authority as defined by sections 120.52(8)(c), (d), and (e).
Findings Of Fact Ms. Jones is currently an employee of the St. Lucie County School Board, and has a professional service contract pursuant to section 1012.33, Florida Statutes. Her status with the School Board is “suspended without pay,” for reasons that are not relevant to this proceeding. As a classroom teacher, Ms. Jones is covered by the Collective Bargaining Agreement between the School Board of St. Lucie County and the Classroom Teachers Association. On June 13, 2017, the School Board suspended Ms. Jones without pay and on July 27, 2017, a Petition for Termination in Termination I was referred to the Division of Administrative Hearings for an evidentiary hearing. At that point, while Ms. Jones remained an employee of the School Board, she received no pay and no benefits from the School District. She began to look for other employment to support herself and her family. Ms. Jones applied to and was offered a job to work as a music teacher by the Somerset Academy St. Lucie (Somerset). Somerset is a charter school in St. Lucie County sponsored by and located within the geographical bounds of the School District and the jurisdictional bounds of the School Board. Ms. Jones did not submit an application for leave and the School Board did not approve a request for leave of absence in order for Ms. Jones to work at Somerset. By letter dated August 28, 2017, Superintendent Gent notified Ms. Jones of his intent to recommended to the School Board that she be terminated for grounds in addition to the already-existing suspension, i.e., for violating the School Board’s Rules 6.16(1); 6.301(2), (3)(b)(i), (3)(b)(xix), and (3)(b)(xxix); and 6.50*+. That letter became the basis for the Termination II proceeding. The factual basis for pursuing the second termination proceeding was that Ms. Jones was working at Somerset without having applied for and received approval for a leave of absence from the School Board. The merits of the School Board’s allegations in this second proceeding are no longer relevant in terms of Ms. Jones’ employment with the School Board, as the School Board, through counsel, has represented that the School Board no longer intends to pursue the allegations in Termination II. The allegations are relevant and informative, however, in establishing the School Board’s interpretation of its rules and establishing Ms. Jones’ standing to challenge the validity of those rules. The evidence presented at hearing established that Ms. Jones has standing to bring this rule challenge. School Board rule 6.16 is entitled “Dual employment,” and provides as follows: No person may be employed to work in more than one position in the school system except upon the recommendation of the Superintendent and approval of the School Board. No employee shall accept other employment that might impair the independence of his or her judgment in the performance of his or her duties. Rule 6.16 lists as its statutory authority sections 1001.41, 1012.22, and 1012.33, Florida Statutes, and lists sections 1001.43 and 1012.22 as the laws implemented. No reference to authority granted by the Florida Constitution is identified. School Board Policy 6.50*+ is entitled “Leave of Absence,” and provides in pertinent part: Leave of absence. A leave of absence is permission granted by the School Board or allowed under its adopted policies for an employee to be absent from duty for a specified period of time with the right to return to employment upon the expiration of leave. Any absence of a member of the staff from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. Length of Leave and Pay. Generally, no leave or combination of leaves, except military leave or Workers’ Compensation Leave, will be granted for a period in excess of one year. Illness-in-line-of- duty leave may not be extended beyond the maximum medical improvement date or a maximum of two (2) years from the date of injury, whichever is the earliest date. Leave may be with or without pay as provided by law, regulations of the State Board, and these rules. For any absence that is without pay, the deduction for each day of absence shall be determined by dividing the annual salary by the number of days/hours for the employment period. Employment leave. A leave shall not be granted to any employee to accept other employment unless the leave is to accept employment at a charter school as provided in paragraph (5) below. Accepting employment while on a leave of absence cancels the leave automatically. The person on leave will be notified that he or she must return to work with the School Board immediately, resign or be terminated. The Superintendent shall develop procedures to implement leave provisions. Charter School Leave. An employee may be granted leave to accept employment at a charter school in St. Lucie County in accordance with the following provisions: Teachers. Teachers may apply for leave to work at a charter school. The School Board will not require resignation of teachers desiring to work at a charter school. Teachers granted such leave by the School Board are not required to be on a continuing or professional services contract and shall not be subject to the seven (7) continuous years’ service requirement. Should a teacher on leave elect to return to work at the District, the teacher shall return to the teacher’s former position or a comparable position for which the teacher is qualified. * * * Method to Request Leave. An application to request leave to accept employment in a charter school shall be submitted using the procedures specified in Policy 6.501(1). For ten month instructional personnel, an application to request leave to accept employment at a charter school shall be submitted to the principal at least forty-five (45) days prior to the first day of work for the school year . . . . Insurance and Retirement Benefits. It shall be the sole responsibility of the charter school site to provide insurance and retirement benefits to charter school employees . . . . * * * Notice of Intent to Return. Employees on charter school leave shall give the School Board written notice of their intent to return at least sixty (60) days prior to the beginning of the semester they wish to return. Requirement for Annual Renewal. Charter school leave must be renewed annually. It is the sole responsibility of the employee on leave to submit an annual written letter notice of leave to the Superintendent or designee, and a copy of the annual written letter notice of leave to the employee’s school principal or immediate supervisor, as applicable, on or before April 1 of each year if they wish to renew their charter school leave for the following school year. Employees who do not submit the required annual leave form on or before April 1st will be considered to have voluntarily terminated their employment, and will no longer be eligible for any benefits or other consideration under this leave policy. (Emphasis supplied.) 11. Rule 6.50*+ lists sections 1001.41, 1012.22, and 1012.33 as its statutory authority, and lists sections 1001.43, 1002.33(12)(e), 1012.22, 1012.61, 1012.63, and 1012.66 as the laws it implements. No reference to authority granted by the Florida Constitution is identified. Rule 6.50*+ provides that if a teacher working for the School Board wishes to work at a charter school within St. Lucie County, that teacher must apply for permission to do so. However, the definition of a leave of absence in the first paragraph of rule 6.50*+ specifically provides that a leave of absence allowed under the rule is for a specified period of time “with the right to return to employment upon the expiration of leave.” By its terms, the rule does not appear to encompass those employees whose status is “suspended without pay,” given that those employees who are suspended without pay do not necessarily have the right to return to employment upon expiration of leave. Rule 6.50*+ also provides that an application for charter school leave shall be provided to the teacher’s principal at least 45 days before the beginning of the school year. For teachers on suspension without pay or who are not assigned to a particular school, there is no principal to whom the application can be given. The rule does not specify an alternative. Instead, Mr. Clements stated that it would be up to Ms. Jones (and presumably, anyone in her circumstance) to ask where to submit an application for charter school leave. The School Board interprets rule 6.50*+ as applying to all employees, regardless of their status. Rule 6.50*+ does not indicate what criteria would be used for determining if an employee’s application for leave should be granted. Mr. Clements testified that the decision is made on a case-by-case basis. He also testified that had Ms. Jones applied for charter school leave, he would not have recommended that her request be approved, because as a teacher on unpaid suspension, she is not in good standing with the School District. Nothing in rule 6.50*+ alerts Ms. Jones, or any other teacher in her circumstances, that her suspension without pay would be a basis for disapproval of an application for charter school leave. Nothing in the rule alerts any applicant of the criteria to be considered for the grant or denial of a requested leave of absence. The consideration of a staff member’s current disciplinary status is not an unreasonable consideration for the Superintendent or for the School District. It is not, however, included in the rule as a basis for deciding whether a request for charter school leave should be approved or denied.
The Issue Whether Respondent should be reassigned to Douglas MacArthur Senior High School--North.
Findings Of Fact During the whole of the 1987-1988 and the beginning of the 1988-1989 school years, Respondent was a student at Carroll City Senior High School. As of fall, 1988, he was ranked as a 9th grader. Ms. Schipelberg was Respondent's mathematics teacher during the 1987- 1988 school year. In her class, he was outspoken, never brought required supplies to class, and did not work productively when Ms. Schipelberg provided supplies to him. Although Ms. Schipelberg spoke with his father, who promised better behavior on his son's part, better behavior was not forthcoming from Respondent, and on February 18, 1988, Ms. Schipelberg referred Respondent to the office for the same repeated behavior. On March 10, 1988, Respondent was referred by another teacher to Mr. William E. Henderson, a Carroll City High Assistant Principal, for cutting class and leaving school without permission. Three days indoor suspension was meted out as discipline. On May 17, 1988, Respondent was again referred for the administration of discipline by Mr. Henderson. This referral was the culmination of an incident in which Respondent entered a classroom without permission while a class was in progress; "visited" with a student who was properly assigned to that class; refused to leave when requested to do so by the teacher; prevented the teacher from closing the door to shut him out; and directed profanity at the teacher. A security monitor had to be called to eject Respondent from the room, and Mr. Henderson counselled with Respondent's parents and imposed three days outdoor suspension on Respondent. During the whole of the 1987-1988 school year, Respondent initiated repeated incidents of disruptive behavior. He frequently moved around the school without a hall pass, contrary to school rules and the Code of Student Conduct. He repeatedly had excessive absences, cut classes, and left the school grounds without permission. During that period he was referred to the guidance counsellor, the visiting teacher, the occupational specialist, and the dropout program. He was placed on a "behavioral contract" requiring weekly progress reports through him to his parents but he failed to comply. By the end of the 1987-1988 school year, Respondent's exit grades were seven failing classes (F's) and one "D," and he had accumulated 89 absences out of 180 days of school. On September 8, 1988, approximately one month into the 1988-1989 school year, Respondent was referred to Mr. Arthur Lindsey, also an Assistant Principal of Carroll City High School. This referral was for counselling due to Respondent's verbal abuse of a substitute teacher. Mr. Lindsey advised Respondent that his behavior was in direct defiance of the Student Code, which it was. Later that same day, Mr. Lindsey was summoned by walkie talkie due to Respondent's presence in the hall without a hall pass, refusal to go back to class, defiance of a school security officer, and loud use of sexually explicit obscenities. Respondent's father was notified, and Respondent was suspended for 10 days. After review by a child study team on September 12, 1988, Mr. Lindsey formally recommended that Respondent be transferred to the alternative education program at Douglas MacArthur Senior High School--North, an "opportunity school" established by the Dade County School Board. The child study team concluded that this was the appropriate placement for Respondent since all of Respondent's infractions and suspensions fell in the Group 5 range of the Student Code. Group 5 offenses rate suspension, expulsion, or transfer to alternative education. The transfer was deemed the least harsh alternative. At formal hearing, Mr. Henderson stated that he concurred in Mr. Lindsey's recommendation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Robert Ward to the opportunity school program at Douglas MacArthur Senior High School--North until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 6th day of March, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1989. COPIES FURNISHED: Joseph A. Fernandez, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building--Suite 100 2780 Galloway Road Miami, Florida 33165 Mr. and Mrs. Derek Nesbitt 3130 Northwest 174th Street Miami, Florida 33056 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether Respondent, Roosevelt Harvey (Harvey), should be suspended without pay for ten days based upon the facts and reasons alleged in the Amended Petition for Suspension Without Pay. PROCEDURAL HISTORY By letter dated September 30, 1987, the Petitioner, School Board of Escambia County (School Board), through its Superintendent, Mike Holloway, advised Harvey that it would seek a ten-day suspension based on "misconduct in office, gross insubordination, willful neglect of duty and being absent without leave." These charges were based on allegations that Harvey improperly took leave on August 28 through September 1, 1987, and improperly requested sick leave for that period. Harvey timely requested a hearing by letter dated October 13, 1987. The School Board requested that the Division of Administrative Hearings conduct the proceedings. The School Board filed a formal Petition for Suspension Without Pay on December 8, 1987. The Petition alleged the same violations, but added factual allegations that Harvey failed to submit grades for his students at the conclusion of the second six weeks of the 1987-88 school year. These new factual allegations also involved charges of misconduct in office, gross insubordination, and willful neglect of duty, however no greater penalty was requested. Subsequently, the Petition was amended to allege additional facts regarding Harvey's attempt to receive sick leave which was improper and to charge the leave days at issue to August 31, 1987, through September 4, 1987. At hearing the School Board presented the testimony of Roosevelt Kimbrough, D.D.S., by telephone conference call, and of Gary Sturgeon, Richard E. Messmer, Jr., and Roosevelt M. Harvey. Petitioner's Exhibits 1-3 were admitted in evidence. Harvey presented his own testimony and had Exhibits 1-3 admitted in evidence. The transcript of the proceeding was filed on February 25, 1988. By agreement at the conclusion of the hearing, the parties stipulated that their proposed orders would be filed within 20 days after the filing of the transcript. The School Board timely filed its proposed findings of fact and conclusions of law on March 4, 1988. Harvey failed to timely file a proposed order and none has been considered. All timely-filed proposed findings of fact have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact Roosevelt Harvey is employed by the Escambia County School Board as a math instructor at the Judy Andrews School. On August 28, 1987, Mr. Harvey requested personal leave for the week of August 28 through September 4, 1987. The principal of Judy Andrews, Richard Messmer, disapproved Mr. Harvey's request because Harvey was new at Judy Andrews in the 1987-88 school year and Messmer believed that it would be detrimental to the class for him to miss the first week of school. Judy Andrews is a special education school and it was very important that Harvey, who had never taught special education before, develop a relationship with his students from the beginning of school. Personal leave is deducted from accumulated sick leave and is granted almost automatically under normal circumstances. Personal leave must be requested and approved in advance, while sick leave is approved after the fact. Personal leave can be used for anything, while sick leave must be used for sickness. Mr. Messmer had never granted personal leave under the same circumstances that existed with Mr. Harvey on August 28, 1987. Mr. Harvey did not mention having dental problems on the day he requested personal leave. When Mr. Harvey's request for personal leave was denied, he then asked Mr. Messmer, "Well, what happens if I take sick leave?" Mr. Messmer told him he could not stop him from taking such leave, but because of the fact he had just requested personal leave and had not mentioned being sick, he would have to have a doctor's note for each day missed. It is not unusual for Mr. Messmer to require doctor's notes for sick leave if there's a question regarding whether such leave was abused. After his request for leave was denied, Mr. Harvey left the school and did not return until September 8, 1987. Mr. Harvey was unable to get a doctor to see him for his gum condition on August 28, 1987. Sometime during the afternoon of August 28, Mr. Harvey visited the VA Clinic but was not seen for dental work. He requested a physical from them in order to get a note excusing him for the day. On August 29, 1987, Mr. Harvey made a two-day trip by automobile to Chicago. He has many relatives in Chicago, which he visits frequently, and also owns three pieces of real estate there, including two commercial properties and a rental residence. Prior to leaving school on August 28, Mr. Harvey told his department head, Mr. Sturgeon, with whom he share a school room, that he needed to take some personal leave to do some roofing work on a building he owned. He did not mention anything about seeing a dentist to Mr. Sturgeon. Mr. Harvey stated that he attempted to visit a dentist on Monday, August 31, in Chicago, but that the office was closed. On Tuesday, September 1, Mr. Harvey visited Dr. Roosevelt Kimbrough, a dentist in Chicago. Dr. Kimbrough practices general dentistry and does not treat gum disease. There is no medical or dental reason why someone would travel from Pensacola to Chicago to see him for dental treatment. Dr. Kimbrough gave Mr. Harvey a temporary treatment and referred him to another dentist for treatment of his gum disease. He did not prescribe any pain medication. Mr. Harvey requested Dr. Kimbrough to give him a note excusing him from work from September 1 through September 5. Dr. Kimbrough agreed to this although Mr. Harvey was not ill, incapacitated or unable to work. According to Dr. Kimbrough, there was no need for Mr. Harvey to be off work September 2, 3 or 4 for this problem. Mr. Harvey did not see any other doctors during the week of August 31 through September 4. He did not have any surgery done on his gums until December of 1987. The only notes Mr. Harvey provided after his return to school were the notes dated August 28 and September 1. Mr. Harvey requested sick leave with pay for the period of August 28 through September 4. Mr. Harvey's request for sick leave was eventually disapproved and he was not paid for the period of August 28, through September 4. Subsequently, the disapproved period was reduced to August 31 through September 4. The only other time when leave was denied to Mr. Harvey during 1987 was August 18, when a mandatory workshop was being conducted. He submitted several other leave requests during that year and all were approved. Mr. Harvey failed to submit his grades for the second six weeks of the 1987-88 school year within the time set by the Master Contract of Collective Bargaining. This resulted in the report cards being printed without math grades which reflected poorly on the school and the School Board. Mr. Messmer ordered Mr. Harvey to submit his grades on two separate occasions prior to the report cards being printed, but Mr. Harvey failed to do so. Mr. Harvey had no additional duties which would have precluded him from submitting his grades on time. Mr. Messmer has never had a teacher who failed to submit grades on time other than Mr. Harvey. Mr. Harvey's past disciplinary record includes two suspensions without pay since 1980 and a reprimand for being absent without leave in 1977.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Escambia County enter a Final Order suspending Roosevelt Harvey without pay for ten days. DONE AND ORDERED this 29th day of March, 1988 in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5058 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, School Board of Escambia County Proposed findings of fact 1-25 are adopted in substance as modified in Findings of Fact 1-25. COPIES FURNISHED: G. James Roark, III Attorney-At-Law 17 West Cervantes Street Pensacola, Florida 32501 Thomas G. Morton, Jr. Attorney at Law 6050 North 9th Avenue Pensacola, Florida 32504 Mike Holloway, Superintendent c/o School Board of Escambia County 215 West Garden Street Pensacola, Florida 32501
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of having been convicted of a crime of "moral turpitude" and thereby subject to having her employment terminated for just cause by the Petitioner in accordance with Section 231.36(1)(a), Florida Statutes. Whether, under the facts and circumstances of this case, Respondent is guilty of having been absent without authorized leave in violation of Section 231.44, Florida Statutes, and thereby subject to having her employment terminated for just cause by the Petitioner in accordance with Section 231.36(1)(a), Florida Statutes.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Charles F. Blalock, Jr., was the duly elected Superintendent of Schools of Suwannee County, Florida. At all times material to this proceeding, Janette Walls was a member of the instructional staff of the Suwannee County School District, employed by the District School Board of Suwannee County, Florida (Board) under an annual contract. While a written annual contract had not been executed between the Board and the Respondent for the 1989-1990 school year due to Respondent's being on maternity leave the first 9 weeks of the 1989-1990 school year, the contractural relationship was the same as set forth in the 1988-1989 annual contract (except for salary which is not in dispute) executed by the Board and the Respondent which provided for dismissal for just cause during the term of the contract as required by Section 231.26(1)(a), Florida Statutes. The Respondent plead Nolo Contendere to the charge of passing worthless checks to Pic N Save in the amount of $50.10, Jiffy Food Store in the amount of $35.00, Suwannee Pack in the amount of $25.00, Suwannee Pack in the amount of $40.53 and Jiffy Food Store in the amount of $21.47 in Case Numbers 89- 1103 MN, 89-1127 MN, 89-1128 MN, 89-1135 MN and 89-1203 MN in the County Court, Suwannee County, Florida. The court in each case adjudicated the Respondent guilty and ordered restitution and assessments in the total amount of $712.10 and placed the Respondent on supervised probation for a period of 12 months in each case. There was no evidence presented as to whether the Respondent paid any of the restitution and assessments ordered in these cases. 4. In Case Numbers 89-1170 MN, 89-1171 MN, 89-1172 MN, 89-1173 MN (orders dated June 5, 1989), 89-1179 (order dated June 6, 1989), 89-1211 MM, 89-1212 MN (orders dated June 14, 1989), 89-1798 MN (order dated August 21, 1989) and 89- 1799 MN (order dated August 23, 1989) in the County Court of Columbia County, Florida the Respondent plead guilty to the charges of passing worthless checks in the amount of $37.42 to Suwannee Swifty on May 5, 1989, $47.63 to Suwannee Swifty on May 6, 1989, $49.86 to Suwannee Swifty on May 5, 1989, $13.00 to Suwannee Swifty on May 9, 1989, $35.00 to Suwannee Swifty on Nay 8, 1989, $6.86 to S & S Store #5 on May 16, 1989, $8.70 to S & S Store #5 on May 9, 1989, $25.00 to Suwannee Swifty on May 9, 1989 and $37.52 to Suwannee Swifty on May 16, 1989. As a result of her plea in the above-cited cases the court adjudicated the Respondent guilty, ordered her to pay restitution and court costs and placed her on probation. There was no evidence presented to show whether the Respondent paid the restitution and assessments ordered in these cases. 5. In Case Numbers 89-478 MN, 89-479 MN, 89-480 MN, 89-647 MN, 89-648 MN, 89-649 MN, 89-650 MN, 89-651 MN. 89-652 MN, 89-653 MN and 89-702 MN in the County Court of Hamilton County, Florida the Respondent plead guilty to the charge of passing worthless checks in the amount of $30.34, $60.00, $60.00, $57.00, $68.91, $62.00, $55.29, $72.45, $65.00, $52.48 and $46.32. On August 4, 1989 the court adjudicated Respondent guilty in Case Numbers 89-478 MN, 89-479 MN and 89-480 MN and ordered the Respondent to pay restitution plus $300.00 in court costs. The Court also placed Respondent on 6 months probation in each case. On December 1, 1989 the court adjudicated the Respondent guilty in Case Numbers 89-647 MN through 89-653 MN and 89-702 MN and sentenced her to 4 months in the Hamilton County Jail with a condition for her release upon her serving 30 days and paying costs and restitution in the amount of $1,279.45. Respondent was incarcerated from on or about December 1, 1989 until on or about December 18, 1989. Respondent was granted personal leave for December 1, 1989. During the school week of December 4 - 8, 1989 Respondent's mother called in to advise the school that the Respondent was sick and that her father was either ill or had died and Respondent would not be in to teach and requesting sick leave for the Respondent. Sometime during the following week of December 11 - 15, 1989 Respondent's mother called again and requested further sick leave for Respondent. On all occasions when sick leave was requested, it was made clear that Respondent would have to fill out a request for sick leave. On December 19, 1989 when Respondent returned to school she completed and signed three Claim For Leave Compensation forms requesting sick leave for the periods of December 4-8, 1989, December 11 & 12, 1989 and December 13 - 15 & 18-19, 1989. It is apparent that Charles M. Sweat, Principal of Suwannee Elementary West signed the Respondent's leave requests recommending approval without paying any attention to who was requesting the sick leave because upon learning that he had signed Respondent's leave request knowing of her incarceration in the Hamilton County Jail prior to his signing the leave requests, he attempted to "white-out" his signature. The request for leave was never approved by the Petitioner, which is required, although such approval may be in some cases after the fact. Respondent may have been paid for this leave time by the Board and, if so, could be considered as approval of the requested leave after the fact; however, there is insufficient evidence to show that the Board did in fact pay the Respondent for this leave time. The Respondent was absent from her work at Suwannee Elementary West without authorized leave for the period of time of December 4 - 8, 11- 15 and 18-19, 1989.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Suwannee County District School Board enter a Final Order terminating Respondent, Janette Walls' employment with the Suwannee County School District effective January 9, 1990, the date Respondent was suspended without pay. DONE AND ENTERED this 25th day of April, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1990. COPIES FURNISHED: Honorable Charles F. Blalock, Jr. District School Superintendent, Suwannee County, Florida 224 West Parshley Street Live Oak, Florida 32060 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 J. Victor Africano Post Office Box 1450 Live Oak, Florida 32060 Ms. Janette Walls 843 Alderman Road # 531 Jacksonville, Florida 32211
The Issue The issue in this case is whether Respondent violated section 1012.795(1)(c), Florida Statutes (2009),1 by being incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school.
Findings Of Fact Ms. LaBranche holds Florida Educator's Certificate 911242, covering the areas of general science, which is valid through June 30, 2011. During the 2008-2009 and 2009-2010 school years, Ms. LaBranche was employed by the Lake County School District (District) as a science teacher at Mount Dora Middle School. On January 20, 2009, there was an incident in Ms. LaBranche's classroom involving a student who became ill. The student had requested to go to the front office, and Ms. LaBranche had denied her request. The student fell onto the floor and began crying. Ms. LaBranche did nothing for two or three minutes until some of the other students told her that the student was ill. At that time, Ms. LaBranche called administration for assistance. As a result of Ms. LaBranche's inattention to the student, Ms. LaBranche received an evaluation on February 4, 2009, showing that she needed improvement in the area of personal characteristics and professional responsibilities. On March 4, 2009, Ms. LaBranche received an Observation/Assessment of Professional Standards, showing that she failed to meet satisfactory overall performance expectations and performed unacceptably in the areas of adherence to the Code of Ethics and to the Principles of Professional Conduct of the Education Profession of Florida. By memorandum dated April 23, 2009, from Kelly Sanders, the principal at Mount Dora Middle School, Ms. LaBranche was advised that because of her performance deficiencies listed in the Observation/Assessment of Professional Standards she was being placed on performance probation for 90 calendar days, beginning on August 24, 2009, and ending on November 23, 2009. On September 9, 2009, Mr. Sanders met with Ms. LaBranche to discuss her performance deficiencies from the 2008-2009 school year and performance deficiencies in the 2009- 2010 school year. Performance deficiencies during the 2008-2009 school year included her 90-day performance probation, her failure to report grades correctly, and her misplacement of checks written by parents. Ms. LaBranche had performance deficiencies for the first two weeks of the 2009-2010 school year. On August 26, 2009, Ms. LaBranche was yelling so loudly at her class that Mr. Sanders could hear her down at the end of the hall. Ms. LaBranche failed to report to a mandatory training session on time. Additionally, Ms. LaBranche had three major incidents with students within six school days. The incidents included a major fight between two of her students in the media center; one student hitting another on the back in her classroom; and two students yelling at each other in the classroom to the extent that Ms. LaBranche called administration for assistance. Ms. LaBranche was advised of recommended procedures for correction of the performance deficiencies. On September 9, 2009, as a result of her performance deficiencies, Ms. LaBranche was given a Professional/Personal Action Report Relating to Work Experience Appraisal II (Appraisal II), which included the following areas of concern: classroom management and personal characteristics and professional responsibilities. On October 2, 2009, Maria Ramirez, an assistant principal at Mount Dora Middle School, met with Ms. LaBranche to discuss Ms. LaBranche's conduct toward Mr. Sanders on September 30, 2009, when Ms. LaBranche was argumentative with Mr. Sanders in the presence of students, other teachers, and non-instructional personnel. Ms. LaBranche made such statements as: "You never listen to my side," "You are picking on me," "You are out to get me," and "I'm tired of the way you treat me." Such behavior showed a lack of professionalism toward the teaching profession. As a result of her behavior toward Mr. Sanders on September 9, 2009, Ms. LaBranche received an Appraisal II which showed a continuing concern in the areas of professional characteristics and professional responsibilities. As stated in the teacher handbook, Mount Dora Middle School's policies on collecting funds requires teachers to submit monies collected from students on a daily basis. Money was not to be left in the classroom. On October 21, 2009, Ms. Ramirez also met with Ms. LaBranche to discuss her failure to meet these directives. On October 15, 2009, Ms. LaBranche submitted checks she had received from students. The dates on the checks ranged from September 28, 2009, to October 2, 2009. Ms. Ramirez reminded Ms. LaBranche that she had been counseled on this issue the previous school year. As a result of Ms. LaBranche's failure to submit collected funds appropriately, she received an Appraisal II on October 30, 2009, again showing areas of concern in professional characteristics and professional responsibilities. Ms. LaBranche submitted a request for leave of absence dated November 4, 2009, requesting leave from November 16, 2009, to August 1, 2010, for an extended illness. By letter dated November 12, 2009, Ms. LaBranche submitted her resignation to the superintendent of Lake County Schools, effective November 20, 2009. She further advised that she would be on sick leave through November 19, 2009. By letter dated November 13, 2009, Ms. LaBranche advised the School District that she was rescinding her letter of resignation dated November 12, 2009. Ms. LaBranche's request for leave was approved from November 18, 2009, through March 2, 2010. Ms. LaBranche submitted another request for leave of absence dated February 18, 2010, requesting leave from March 1, 2010, through August 1, 2010, for an extended illness. The request for leave was denied on February 25, 2010. Ms. LaBranche submitted a third request for leave dated March 1, 2010, requesting leave from March 2, 2010, through August 1, 2010, for an extended illness. The request for leave was denied on March 4, 2010. Ms. LaBranche submitted another request for leave of absence dated March 3, 2010, requesting leave from March 4, 2010, through August 4, 2010, due to her illness. She noted on the request form that she had a doctor's appointment on the following day. The request for leave was denied on March 4, 2010. Ms. LaBranche submitted an undated request for leave of absence for March 5, 2010, due to illness. This request was denied on March 4, 2010. Ms. LaBranche submitted another undated request for leave of absence from March 5, 2010, through March 8, 2010, for an illness. This request was also denied on March 4, 2010. By letter dated March 11, 2010, the School District advised Ms. LaBranche that she had not requested any accommodation that would allow her to perform her duties. Therefore, the School District directed Ms. LaBranche to be examined by the Lake County School Board's physician for the purpose of evaluating her fitness for duty. She was required to contact Dr. Magy Shanawany before the close of business on March 17, 2010. Ms. LaBranche did not make an appointment with Dr. Shanawany. The School District sent Ms. LaBranche a letter dated March 23, 2010, which stated: Your March, 2010 requests for extended illness leave beginning March 1, 2010 and extending through August 1, 2010[,] is [sic] denied based on the following: You were on Family and Medical Leave Act beginning November 17, 2010[,] and extending through March 2, 2010. You currently have no sick leave available for you to use. You have refused to get a fitness for duty evaluation by the School Board's physician, Dr. Shanawany, as you were required to do in a letter dated March 11, 2010[,] from district staff. Ms. LaBranche, since you have no available sick leave to use, you must report to work or be considered Absent Without Approved Leave. Being Absent without approved Leave is in violation of School Board policy 6.511 and could lead to your termination from employment with Lake County Schools. Please report to work no later than Monday, March 29, 2010. By letter dated March 24, 2010, Ms. LaBranche advised the Lake County School Board that she was currently on medical leave and intended to return to Mount Dora Middle School in August 2010. Ms. LaBranche did return to Mount Dora Middle School on March 29, 2010. At the time that Ms. LaBranche began her medical leave in November 2009, she had not completed her 90-day performance probation, which was to have ended on November 23, 2009; therefore, Mr. Sanders went to Ms. LaBranche's classroom on March 29, 2010, to observe and evaluate her performance in the classroom. Ms. LaBranche informed Mr. Sanders that her physician had told her that she did not have to teach and walked out of the classroom. Mr. Sanders returned to Ms. LaBranche's classroom the next period. Ms. LaBranche refused to teach and walked out of the classroom. Mr. Sanders did an Appraisal II, finding that Ms. LaBranche's performance was unacceptable. By memorandum dated March 29, 2010, Mr. Sanders informed the superintendent of Lake County Schools that Ms. LaBranche's 90-day performance probation had ended and that Ms. LaBranche had failed to correct her performance deficiencies. In his opinion, Ms. LaBranche could not correct her performance deficiencies and recommended the termination of her employment. By letter dated March 29, 2010, the Superintendant of the Lake County Schools advised Ms. LaBranche that she was suspended for four days without pay and a recommendation would be made to the Lake County School Board that Ms. LaBranche's employment be terminated. Ms. LaBranche's employment was terminated effective May 10, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Ms. LaBranche violated section 1012(1)(c), and revoking her educator's certificate for five years, with reinstatement pursuant to the provisions of section 1012.795(4), Florida Statutes. DONE AND ENTERED this 30th day of August, 2012, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 30th day of August, 2012.
Findings Of Fact 1. On April 18, 2014, the Board issued an Invitation to Bid (‘2014 ITB”) for holding pond and related grounds maintenance work. The 2014 ITB specifically advised bidders that the Board reserved the right to contract “all or none, or by group to responsible and responsive bidder(s) determined to be the most advantageous to the District, taking into consideration price, product quality and other requirements as set forth in this ITB.” The language in the 2014 ITB gives the Board the discretion to award the contract to one bidder, several bidders or no bidders. 2. The 2014 ITB specifically advised bidders of their right to challenge the terms and conditions of the ITB. Petitioner, Mark's Lawn Maintenance, Inc., did not challenge the terms or conditions of the 2014 ITB. 3. The 2014 ITB specifically informed bidders that local and small business certification preferences were available to bidders, where applicable. Petitioner was given a 3% local preference for having a business in an adjoining county. Val’s Lawncare, Inc. ("Val's”) received a 5% small business certification preference. Applying the discount, Val's was the lowest bidder. 4. In 2007 and 2010, the Board issued ITBs for holding ponds and grounds maintenance services, and, each time, the contract was awarded to multiple bidders. 5. The 2014 ITB was awarded in accordance with the terms and conditions set forth therein, and not any prior practice or any language from prior ITBs.
Conclusions This matter came upon before the Board for entry of a Final Order upon entry of an Order Relinquishing Jurisdiction by June McKinney, an Administrative Law Judge of the Florida Division of Administrative Hearings, and, having reviewed the same, and ail other matters of record, and being otherwise advised in the premises, the Board finds and concludes as follows:
The Issue Whether the School Board of Dade County has cause to terminate Respondent's employment on the grounds that Respondent was "willfully absent from duty without leave," within the meaning of Section 231.44, Florida Statutes, as alleged in the Notice of Specific Charges filed in the instant case? If not, what relief should Respondent be afforded?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was employed as a teacher by the Dade County School Board during the 1988-89 school year on an annual contract basis. His employment commenced on August 31,1988. At all times he was assigned to the ESOL (English for Speakers of Other Languages) program at Carver Middle School. The principal of Carver Middle School, and Respondent's immediate supervisor, was Samuel Gay. Simine Heise was one of Gay's assistant principals. In Gay's absence, Heise served as acting principal. At around 12:00 p.m. on Monday, January 30, 1989, following a meeting with Gay, Respondent became physically ill at school. He left school for the day after notifying Gay and securing his authorization. Respondent was placed on sick leave for the remainder of the school day. At no time thereafter did Respondent report back to work. Various substitute teachers covered Respondent's classes during the period of his absence. Effective April 20, 1989, he was suspended by the School Board and it initiated action to terminate his employment on the ground that he had been willfully absent without authorization. During the period of his absence, Respondent was under the care of a psychiatrist, Dr. Adolfo M. Vilasuso. He was suffering from depression, insomnia, stress, anxiety and stress- induced gastrointestinal distress. He was treated by Dr. Vilasuso with psychotherapy and medication. Respondent's condition was primarily the result of personal problems involving his son and former wife. He was obsessed by these matters. He paid very little attention to anything else, including his teaching responsibilities. Although he was physically able to report to work, he was so distracted and preoccupied by his personal problems that he could not effectively discharge his teaching duties. The School Board requires that, in order to continue to obtain sick leave, a teacher absent because of illness must contact his immediate supervisor or the supervisor's designee by 2:00 p.m. of each day of absence and give notice that he will be out sick the following day. Teachers are advised of this "2:00 p.m. notification" requirement in the teacher handbook, a copy of which Respondent had received prior to his absence. Throughout the period of his absence, Respondent was capable of understanding and complying with this requirement. A teacher who complies with the "2:00 p.m. notification" requirement, but has exhausted all of his accrued sick leave credits, will automatically be placed on authorized leave without pay for illness for a maximum of 30 days, without the necessity of formal School Board approval. The leave will be extended beyond 30 days only if the teacher submits an appropriate application for an extension, accompanied by a "statement from [the teacher's] physician explaining why such [extended] leave is necessary." After leaving school on January 30, 1989, Respondent did not contact any member of the Carver Middle School administration or its staff concerning his absence until Saturday, February 11, 1989, when he telephoned Principal Gay's secretary, Maria Bonce, at her home and left a message with her daughter that he would not be at work the following Monday. On February 15, 1989, Dr. Vilasuso telephoned Carver Middle School and spoke with Assistant Principal Heise. Dr. Vilasuso told Heise that Respondent was under his care. He was vague, however, regarding the nature of Respondent's illness and he did not indicate when Respondent would be able to return to work. On February 21, 1989, not having heard anything further from either Respondent or Dr. Vilasuso, Principal Gay sent Respondent the following letter: The purpose of this communication is to determine your intentions for the balance of this school term. You've been absent from your teaching position at Carver Middle School since 12:00 a.m [sic] on January 30, 1989. On Saturday, February 11, you called my secretary, Mrs. Bonce, indicating you would return to work next week. On February 15, an individual identifying himself as your doctor called Carver Middle School and spoke to the assistant principal, Mrs. Heise. When he was requested [to provide information] about your illness, medical status and your ability to return to work, he stated he would not give further information without your approval. Until now we have not heard from you since February 11 when you contacted Mrs. Bonce at home. Also, the phone number and address we have on record obviously are no longer yours, therefore, I am unable to ccntact you. In addition to the above, we have no lesson plans, roll books, grade books for your students. It has been reported to me by custodial staff that you are frequently observed in the building after duty hours yet you have failed to communicate with me personally or the assistant principal or speak with your department head or the assistant principal for curriculum. I must call your attention to the contract between Dade County Public Schools and UTD and the teacher handbook which has information whiih addresses teachers' absences. You are clearly in violation of these documents. Finally, may I remind you of a memorandum given to you on January 27. A written response was due to me on February 1st. In addition, a conversation for the record was scheduled for February 1st. That conference will be held. You simply need to tell me when. I must remind you that failure to comply with district and local rules can result in non-reappointment for the 1989-90 school year. After receiving the letter, Respondent, on Thursday, February 23, 1989, telephoned Carver Middle School and spoke with Gay. Although he did not indicate to Gay when he was going to return to school, he did leave Gay with the impression that his condition was improving. Respondent also intimated during the telephone conversation that Gay would be receiving a letter from Dr. Vilasuso concerning Respondent's illness. The following Monday, February 27, 1989, at around 9:00 p.m., Respondent telephoned Secretary Bonce at her home and told her that he would be absent from school the remainder of the week due to illness. On Wednesday, March 8, 1989 Respordent telephoned Gay at school. He told Gay that he wanted to apply for sick leave and asked how he would go about doing so. Gay responded that he had referred Respondent's case to the School Board's Office of Professional Standards and that therefore the matter was "out of his hands" and Respondent would have to contact that office. On no occasion other than during the foregoing telephone conversations of February 11, 23 and 27, 1989, and March 8, 1989, did Respondent communicate with Gay or any member of Gay's administrative staff concerning his absence. Respondent's failure to so communicate with either his immediate supervisor or anyone on his immediate supervisor's administrative staff was willful. On March 28, 1989, Dr. Joyce Annunziata, the head of the School Board's Office of Professional Standards, sent Respondent a letter, which provided in pertinent part as follows: The Office of Professional Standards has been advised that you have been absent without authority from your duties as an employee in the Dade County Public Schools. During this period you did not obtain authorized leave from your supervisor. Florida Statute 231.44 provides: Any District school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board. Your absence without authorized leave constitutes willful neglect of duty and subjects your employment with the Dade County Schools to immediate termination. Please be advised that unless you provide within five days from receipt of this letter a written notification to the Office of Professional Standards, 1444 Biscayne Boulevard, Suite 215, Miami, FL 33132, of your resolution of your unauthorized leave status, your termination will be submitted to the School Board for final action at its meeting of April 19, 1989. Respondent received Dr. Annunziata's letter on April 10, 1989. He did not provide the Office of Professional Standards with the requisite "written notification" within five days of his receipt of the letter. Accordingly, the matter was considered by the School Board at its April 19, 1989, meeting. Thereafter, Respondent submitted to the Office of Professional Standards a written request for leave without pay for illness. The request sought leave for the period from February 8, 1989, through June 19, 1989. Although the form on which Respondent made his request noted that a "[d]octor's statement indicating diagnosis [and] length of time required for leave" was required, no such statement accompanied Respondent's request. A letter from Dr. Vilasuso concerning Respondent's condition was subsequently received by the Office of Professional Standards on April 28, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board of Dade County enter a final order terminating Respondent's employment as an annual contract teacher pursuant to Section 231.44, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3231 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: School Board's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Rejected because it adds only unnecessary detail. Rejected because it adds only unnecessary detail. First, second and third sentences: Rejected because they add only unnecessary detail; Fourth and fifth sentences: Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. First sentence: To the extent that it suggests that Respondent "never" complied with the "2:00 pm. notification requirement," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. Second sentence: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Accepted and incorporated in substance. To the extent that it suggests that Respondent was absent without authorization during a portion of the period from January 30, 1989, to April 19, 1989, it has been accepted and incorporated in substance. To the extent that it suggests that he was absent without authorization during the entire period, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it is irrelevant and immaterial. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Respondent's Proposed Findings of Fact: Rejected because it is a summary of rather than a finding of fact based upon such testimony. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is more in the nature of argument than a finding of fact. Accepted and incorporated in substance. First sentence: Rejected because it is more in the nature of argument than a finding of fact; Remaining sentences: Rejected as contrary to the greater weight of the evidence to the extent it suggests that a teacher need not comply with the "2:00 p.m. notification" requirement to obtain authorized leave for illness and that Respondent was on such authorized leave during the first 30 days of his absence. Otherwise, they have been accepted and incorporated in substance. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue, Suite One Miami, Florida 33134 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County School Board School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
