The Issue Whether Respondent engaged in the conduct alleged in the Administrative Complaint. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida. Respondent's Teacher Certification Respondent is a teacher by profession. She holds a certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that she is eligible to teach in the State of Florida in the areas of early childhood education, elementary education, ESOL, and exceptional education (specific learning disabilities, emotionally handicapped, and mentally handicapped). The certificate's "validity period" is July 1, 1993, through June 30, 1998. Respondent's Employment History Respondent has been employed by the School District since August of 1987. She holds a professional services contract. She is currently under suspension (without pay) pending the outcome of this disciplinary proceeding. For the duration of her employment with the School District, Respondent has held an instructional position at Forest Hill Elementary School (Forest Hill), the principal of which, since the 1988-89 school year, has been Linda Hardy. During her early years at Forest Hill, Respondent taught emotionally handicapped students. Having to deal with these special-need students, however, became too stressful for her. She therefore was moved to the regular education program at the school and served as a regular fifth grade classroom teacher until her removal from the classroom in November of 1996 when the school administration learned of the criminal conduct in which she had engaged the month before (that is described in the Administrative Complaint). Respondent's Classroom Performance Respondent's classroom performance at Forest Hill was erratic. Principal Hardy had various informal conferences with Respondent during which she identified for Respondent those areas of Respondent's performance in which improvement was needed. Respondent's performance in these areas would improve and reach a satisfactory level following each conference, but only for a limited period of time, after which it would decline again, thereby necessitating the convening of another conference. As Principal Hardy stated in her testimony at the final hearing, Respondent's performance was "like a roller coaster." Respondent nonetheless received an overall satisfactory rating on every annual written evaluation she was given while at Forest Hill. There were, however, on each of these evaluations, "areas of concern" noted.1 These "areas of concern" primarily involved Respondent's interaction with students, parents and colleagues. Respondent's Prior Disciplinary Record Prior to her removal from the classroom in November 1996, the only discipline she had received was a written reprimand for failing to timely submit lesson plans and other paperwork. Respondent's Rejection of the Suggestion to Participate in the Employee Assistance Program Particularly during the latter part of the period that she served as a regular classroom teacher, Respondent had difficulty coping with the stress she was experiencing in both her professional and personal lives. Principal Hardy, in whom Respondent had confided about these problems, suggested on more than one occasion that Respondent utilize the services of the School District's Employee Assistance Program. Respondent declined to follow Principal Hardy's suggestions. She advised Principal Hardy that it was unnecessary for her to seek assistance from the Employee Assistance Program since she was "seeing her own doctor" to help her with these problems. The Granting of Respondent's Request for Extended Leave By letter dated November 8, 1995, which read, in pertinent part, as follows, Respondent requested an extended leave of absence from her position with the School District: Effective 11-8-95, I am requesting a temporary leave of absence from my fifth grade teaching position at Forest Hill Elementary School (0621). At the present time it would be in the best interest of my students if I take a temporary leave of absence. During this temporary leave of absence I will be under the care of Doctors Jeanne Yetz [and] Mark Ellinger . . . . Respondent was granted a leave of absence from November 8, 1995, until January of 1996. Respondent's Mental Health Dr. Mark Ellinger is a clinical psychologist who has been treating Respondent (using psychotherapy) since August of 1994, for problems relating to mood, interpersonal relations, and substance abuse and dependence. Dr. Ellinger's treatment has been supplemented by medication (to reduce anxiety and for depression) prescribed by a psychiatrist, Dr. Jeanne Yetz. Over the period of time that she has been treated by Drs. Ellinger and Yetz, Respondent's condition has worsened. Dr. Ellinger's original diagnosis, at the time treatment began, was depressive disorder NOS (Not Otherwise Specified), a very mild disturbance. His secondary diagnosis was post-traumatic stress disorder. (Respondent related to Dr. Ellinger that, during her childhood, she had been sexually molested and verbally and physically abused.) More recently, in October of 1997, Dr. Ellinger determined that Respondent was suffering from major depression recurrent, borderline personality disorder, and cannabis dependence (in partial remission). Major depression recurrent is the most severe form of depression. Borderline personality disorder is also a very serious mental illness. It can extend over a lifetime and is difficult to treat effectively. Persons with borderline personality disorder struggle to control their anger and rage and to act appropriately, particularly in their dealings with others. As a result, they have difficulty maintaining stable interpersonal relationships. Cannabis dependence is a maladaptive pattern of marijuana use leading to clinically significant impairment or distress. It is more serious than cannabis abuse, which, unlike cannabis dependence, involves merely periodic, rather than ongoing, marijuana use. On November 5, 1997, Dr. Ellinger filled out a Functional Capacities Evaluation form (FCE Form) describing Respondent's abilities in the following areas: Ability to relate to other people; Restriction of daily activities, e.g. ability to attend meetings, socialize with others, attend to personal needs, etc.; Deterioration of personal habits; Constriction of interests; Understand, carry out, and remember instructions; Respond appropriately to supervision; Perform work requiring regular contact with others; Perform work where contact with others will be minimal; Perform tasks involving minimal intellectual effort; Perform intellectually complex tasks requiring higher levels of reasoning, math and language skills; Perform repetitive tasks; Perform varied tasks; Makes independent judgment; Supervise or manage others; Perform under stress when confronted with emergency, critical, unusual or dangerous situations; or situations in which working speed and sustained attention are make or break aspects of the job; and Ability to work relative to the attached job description. Dr. Ellinger indicated on the FCE Form that Respondent had a "mild" impairment ("[s]uspected impairment of slight importance which does not affect functionality ability") in areas 3, 11, and 12; a "moderate" impairment ("[i]mpairment affects but does not preclude ability to function") in areas 4, 5, 8, 9, and 10; and a "moderately severe" impairment ("[i]mpairment significantly affects ability to function") in areas 1, 2, 6, 7, 13, 15, and 16.2 Dr. Ellinger sent the completed FCE Form to the "claims advisory agent" representing the insurance company with whom Respondent had filed, in May of 1997, after the initiation of this disciplinary proceeding, a claim seeking disability insurance benefits. Dr. Ellinger also completed and sent to the "claims advisory agent" a Mental Status Supplemental Questionnaire (Questionnaire), in which he stated, among other things, the following: She [Respondent] continues to struggle with the above listed problems [problems relating to mood, substance abuse and interpersonal relations] and those have gone on for years. Mood is intermittently depressed, anxious and irritable. Thinking processes are intact with some moderate deficit due to mood disorder and stress of medical problems. Intelligence is normal. Perception shows some deficits and judgment has been poor in recent past evidenced by legal problems. Behavior has been impulsive and aggressive. He also indicated in the completed Questionnaire that one of Respondent's "treatment goals" was to "develop [a] new career due to [her] disability." It is important for Respondent to "develop [a] new career" inasmuch as her deep-rooted and severe mental health problems have significantly impaired her ability to function effectively as a classroom teacher.3 Respondent's Relationship with the Scrivos In 1996, Respondent moved into an apartment building on Seapine Way (Seapine Apartments) in Greenacres, Florida. Living in the apartment directly beneath Respondent's was the Scrivo family: Joseph, Sr. (Joe); his wife Dana; and their children, Joseph, Jr., and Gianna. Joseph, Jr., and Gianna are now three and eight years of age, respectively. Gianna is now, and has been at all times material to the instant case, a student at Forest Hill. After moving into the Seapine Apartments, Respondent began to socialize with the Scrivo family and became friends with Dana. Respondent, however, did not get along well with Joe. Joe said things to Respondent that Respondent considered to be insulting. She also suspected that Joe was the person who was leaving the pornographic material she started to find at her front door in the morning. (In fact, Joe was not the culprit.) The Scrivos' Separation In the summer of 1996, Joe and Dana had marital problems. As these problems escalated, Joe began to secretly tape record Dana's telephone conversations at home. With Respondent's assistance, Dana discovered that Joe was making these tape recordings. On August 7, 1996, Joe and Dana separated. Dana and the children remained in the Seapine Way apartment. Joe moved into a trailer located at 6074 South 16th Way in West Palm Beach. Dana obtained a restraining order against Joe. The restraining order prohibited Joe from having contact with Dana, except to the extent that such contact was necessary for Joe and Dana to discuss and to tend to the needs of their children. Dana made Respondent aware of the fact that she had obtained a restraining order against Joe. Joe's October 23, 1996, Visit to the Seapine Apartments Gianna had trouble dealing with her parents' separation. On the evening of October 23, 1996, Gianna was particularly upset. Dana telephoned Joe and told him that she wanted to speak to him in person about Gianna. Later that evening, Joe drove to the Seapine Apartments to meet with Dana. Respondent saw Joe in his van outside the apartment building. She telephoned the police and reported to them that Joe was on the grounds of the Seapine Apartments in violation of a restraining order that had been issued against him. When the police arrived on the scene, Joe and Dana were in Joe's van talking to one another. The police questioned Joe and then spoke to Dana. Dana told the police that she had requested the meeting with Joe to talk to him about the emotional problems their daughter was experiencing. She further informed the police that the restraining order did not bar Joe from meeting with her to discuss such a matter. The police left without taking any action. The Vandalizing of Respondent's Car The following afternoon, Thursday, October 24, 1996, Joe left town to visit his aunt in Key West, Florida. Sometime after Joe left town, during the evening of October 24, 1996, or the morning of October 25, 1996, before approximately 7:45 a.m., the front of the exterior of Respondent's automobile was damaged while the automobile was parked in the parking lot outside her apartment. It appeared to Respondent, who discovered the damage at approximately 7:45 a.m. on October 25, 1996, as she was about to get into her car and drive to work, that someone had thrown paint remover on the car. Respondent reported the damage to the police and then drove to work. After work she went to a body shop to obtain an assessment of the damage that had been done to her automobile. She then returned home. The "Trashing" of Joe's Trailer and the Theft and Use of Joe's Credit Cards From the time she returned home until the early morning hours of Sunday, October 27, 1996, Respondent remained awake and stewed about what had been done to her car. She felt as if she had been "violated." The more she thought about it, the more upset and angrier she became. Although she was experiencing these negative feelings, Respondent believed that there was no immediate need to seek the assistance of Dr. Ellinger, with whom she had an appointment scheduled for the following week. She thought that this situation "was something that [she] could actually work through" herself. As it turned out, she was wrong. Respondent erroneously believed that it was Joe who had damaged her automobile and she decided to get even with him by doing damage to his possessions. She knew that Joe was out of town, so, during the early morning hours of Sunday, October 27, 1996, she drove to Joe's trailer with the intention of vandalizing it and its contents. Upon arriving at her destination, she broke into the trailer and, in accordance with her plan, proceeded to willfully and maliciously do extensive damage to the interior of the structure and the possessions of Joe's that were in the structure. Among other things, she flooded the trailer by stopping up the sinks, turning on the faucets, and letting the water run; spread and smeared food items that were in the refrigerator on the floor, walls, ceiling, furniture, and photographs, including photographs of the Scrivo children; slashed Joe's clothes and his bed with a knife; and damaged electronic equipment. In addition, she stole from the trailer three of Joe's credit cards, which she subsequently used to purchase, by fraudulent means, in excess of $300.00 worth of merchandise. Respondent's "trashing" of Joe's trailer and her theft and fraudulent use of his credit cards was related to her mental illness, which made it difficult for her to control her emotions and to exercise restraint (although she knew what she was doing and that her actions were wrong). Respondent engaged in this conduct, notwithstanding that she was at the time, and had been for approximately the previous 26 months, under the care of, and receiving treatment from, Drs. Ellinger and Yetz. In fact, Dr. Ellinger had specifically counseled Respondent to make every effort to avoid being provoked by Joe. There is no guarantee that Respondent will not engage in similar inappropriate conduct in the future. Indeed, given the nature of her mental illness, it is more likely than not that she will. The Discovery of Respondent's Crimes Respondent also took from the trailer, when she left after her rampage, three or four audio cassette tapes that Joe had used to secretly tape record Dana's telephone conversations before their separation. Respondent left the tapes outside the front door of Dana's apartment along with a note which read as follows: These are the tapes that Joe used to record your phone conversations. From a friend. When Dana found the tapes and read the note she figured that someone had broken into Joe's trailer. She suspected Respondent as having been the culprit because, to Dana's knowledge, other than Joe and her herself, only Respondent and a friend of Dana's who lived in New Jersey knew of the existence of the tapes. Dana asked two of her downstairs neighbors who were friendly with Joe to go check on Joe's trailer. They agreed to do so. Some time later, one of them returned and informed Dana that Joe's trailer was flooded and that the police had been called to the scene. The other neighbor telephoned Joe, who was still in Key West, and told him about the damage to his trailer. Joe returned home immediately. Respondent's Post-Incident Conduct Respondent did not want anyone to know what she had done. She therefore initially told no one, not even Dr. Ellinger, about her "trashing" of Joe's trailer and her stealing and subsequently using his credit cards. While she remained quiet about her wrongdoing, she was not reluctant to complain to others about what she perceived to be Joe's harassment of her. On or about October 29, 1996, Respondent applied for and obtained in Palm Beach County Circuit Court an ex parte restraining order against Joe. The restraining order was later dismissed on November 12, 1996, after a hearing on the matter, in which both Joe and Respondent participated. On November 22, 1996, the police came to Forest Hill to speak with Respondent about the events of October 27, 1996. After being read her Miranda rights, Respondent agreed to give a statement to the police. At first, Respondent denied breaking into Joe's trailer. Not long thereafter, however, she retracted her denial and admitted to the police what she had done. Following the interview, the police advised Respondent that they would be seeking the issuance of a capias for her arrest. The police told Principal Hardy of their intention to effect Respondent's arrest. Principal Hardy thereupon directed Respondent not to return to the classroom and informed her that she was being reassigned (with pay) to her home until further notice. Later that day, Respondent saw Dr. Ellinger and for the first time told him about her destructive behavior at Joe's trailer during the early morning hours of October 27, 1996. (She subsequently, on December 16, 1996, told Dr. Ellinger about the credit cards she had stolen and then used.) The District Meeting and Meeting of the Professional Standards Committee Principal Hardy brought the matter of the police investigation of Respondent to the attention of the School District's Department of Employee Relations. The Department of Employee Relations determined that a pre-disciplinary meeting should be held with Respondent. Such a pre-disciplinary meeting was ultimately held on March 18, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County Teachers Association, Respondent and her attorney. At the meeting, Respondent admitted to breaking into Joe's trailer and "trashing" it and to stealing Joe's credit cards and using them to make purchases in excess of $300.00. In attempting to explain why she had engaged in such conduct, Respondent claimed that Joe had taunted, stalked and harassed her prior to the incident. In addition, she advised that she was under the care of a psychologist, Dr. Ellinger, whom, she stated, the School District could contact if it so desired. After hearing from Respondent, the School District representatives at the meeting determined that there was probable cause for the matter to be presented to the School District's Professional Standards Committee for its recommendation. After having considered the matter, the Professional Standards Committee recommended to the School District's Superintendent of Schools that action be initiated to terminate Respondent's employment with the School District. The Superintendent's Action On April 14, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows: Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an instructor. You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between the School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon the following actions (criminal or otherwise): First, you admitted to breaking into a trailer and "trashing it." Second, you admitted to stealing a credit card and using it to make purchases in excess of $300.00. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B-1, Florida Administrative Code. Please be advised that I will recommend at the May 7, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective May 8, 1997, and that the termination of employment will become effective upon the expiration of fifteen days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes. The May 7, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at 5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (561) 434- 8139, of your intention to make a presentation at that meeting. Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter. On April 22, 1997, the Superintendent of Schools executed a Petition for Dismissal, which contained the following "administrative charges" and "demand for relief": ADMINISTRATIVE CHARGES Petitioner, Dr. P. Kowal, alleges as follows: Respondent, Debora Woessner, admits to breaking into a trailer and "trashing it." Respondent also admits to stealing a credit card and using it to make purchases in excess of $300.00. The above-described conduct violated Section 231.36(1)(a), Florida Statutes (1995), the Respondent's contract, the Palm Beach County School Board's Rules and Regulations, and the Code of Ethics of the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code. Just cause exists for the requested relief, pursuant to Section 231.36(1)(a), Florida Statutes; Article II, Section M, of the collective bargaining agreement between the School District and the Palm Beach County Classroom Teachers Association; the School Board's Rules and Regulations; and Rule 6B- 4.009, Florida Administrative Code, in that Respondent has engaged in misconduct, criminal and otherwise, which is inconsistent with the standards of public conscience and good morals, to wit: destruction of property, breaking and entering, and theft. DEMAND FOR RELIEF WHEREFORE, Petitioner, Dr. Joan P. Kowal, Superintendent of Schools, recommends that the School Board of Palm Beach County, Florida, immediately suspend Respondent, Debora Woessner, without further pay or benefits. The Petitioner recommends that the School Board, subsequent to providing the requisite notice, dismiss, the Respondent, Debora Woessner, from her employment as an instructor predicated upon the foregoing facts and legal authority. By letter dated April 28, 1997, which read as follows, Respondent, through her attorney, requested a hearing on the Superintendent of School's recommendation: Our office has been retained for the purpose of representing Ms. Debora Woessner before the School Board of Palm Beach County, Florida, with respect to the issues raised in the Superintendent's letter dated April 14, 1997, charging Ms. Woessner with misconduct. Ms. Woessner denies that there is any basis to support the Superintendent's recommendation for suspension without pay and contests the recommendation for her dismissal. Ms. Woessner requests that a hearing be conducted with respect to all issues raised by the charges described above and her defense to the charges, and requests such a hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before a hearing officer appointed by the Division of Administrative Hearings. I will speak on Ms. Woessner's behalf at the School Board meeting scheduled for May 7, 1997, when the Board will consider the propriety of the recommendation for suspension without pay and dismissal from employment. The Criminal Proceedings After the conclusion of the police investigation of the "trashing" of Joe's trailer and the theft and use of his credit cards, the matter was turned over to the State Attorney and Respondent was criminally charged (in Palm Beach County Circuit Court Case No. 96-13985CFA02) with one count of felony criminal mischief and one count of grand theft. Respondent entered a guilty/"best interest" plea to both counts. An Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered in Palm Beach County Circuit Court Case No. 96-13985CFA02 on April 23, 1997. The order placed Respondent on probation for a period of five years "concurrent with each count." Among the conditions of her probation were that she have "no contact" with Joe and that she pay Joe restitution in an amount to be determined following a hearing on the matter. Such a hearing was held on May 16, 1997, after which an order was entered which provided as follows: THIS CAUSE having come before the Court for a restitution hearing and this Court having [pr]esided at said hearing on May 16, 1997, it is hereby ORDERED AND ADJUDGED that Defendant, Debora Woessner, pay to the victim, Joseph Scrivo, restitution in the amount of $30,238.92. Restitution is to be a condition of the Defendant's probation sentence and shall be paid monthly in the minimum amount of $10 per month, commencing July 1, 1997 and continuing until paid in full. Publicity Respondent's criminal conduct was widely publicized in the community. It was reported in the newspaper and received television coverage. One particularly aggressive television news reporter attempted to interview Forest Hill students on school grounds to obtain their reaction to Respondent's wrongdoing. After the reporter was directed to leave, he stationed himself across the street from the school, where he interviewed students on their way home following the end of the school day. In addition, someone distributed in the neighborhood surrounding Forest Hill fliers which denounced Respondent as being unfit to teach as a result of her criminal conduct. Impaired Effectiveness Teachers serve as authority figures and role models for their students. Respondent's ability to effectively serve as a positive role model for her students has been seriously impaired by her widely publicized criminal conduct. The May 7, 1997, School Board Meeting The Superintendent of Schools' recommendation regarding Respondent's future employment was discussed at the Palm Beach County School Board's May 7, 1997, meeting. At the May 7, 1997, meeting, Respondent's attorney argued that the School Board was prohibited by the Americans with Disabilities Act (ADA) from taking adverse action against Respondent and that it was required by the ADA to provide her with an accommodation. The School Board decided not to take any action on the Superintendent of School's recommendation regarding Respondent's future employment until it received further information concerning Respondent's entitlement to protection under the ADA. Correspondence Concerning Respondent's ADA Claim On May 9, 1997, the School District's General Counsel sent Respondent's attorney a letter, which read as follows: On Wednesday, May 7, 1997, you appeared before the board on behalf of Debora Woessner. That evening you advised that Ms. Woessner had sought an ADA accommodation, and that her rights were violated due to the District's failure to accommodate her. As of today's date, we have had no information regarding this employee's request for an accommodation. No later than Monday, May 12, 1997, we would request a letter via facsimile to the attention of Dianne Howard, our Risk Manager, at (561) 434-8103 with regard to the following: Please outline the nature of your client's disability. Please outline how this disability affects her major life activity. Please advise as to the accommodation she is seeking. This information is critical for the District's consideration of your request. The consideration must be arrived on or before May 16, 1997. If this information is not received by Monday, and the meeting cannot be scheduled before May 16, 1997, th[e]n termination which was predicated on criminal activity, admitted by your client, will proceed at the next regularly scheduled Board meeting on May 21, 1997. Respondent's attorney responded to this letter from the School District's General Counsel by letter dated May 12, 1997, which read as follows: I am in receipt of your letter of May 9, 1997 regarding Debora Woessner. For clarification, my statements to the Board indicated that Ms. Woessner was requesting, through her attorney, an accommodation. I further stated that Ms. Woessner was in possession of School Board Policy 3.06, and that the School Board should allow the District's ADA process to run its course before making a decision regarding Ms. Woessner's termination. I did not state that Ms. Woessner's rights had been violated. I stated that the Board should delay acting on the recommendation so that Ms. Woessner's rights would not be violated. Regarding your statement that the District has no information regarding Ms. Woessner's request for an accommodation, I stated at the meeting that (1) Ms. Woessner has been diagnosed with a psychiatric disability specifically defined by the DSM IV, (2) this disability affected a major life activity, i.e., interacting with people, (3) the actions for which the Superintendent recommended discipline for Ms. Woessner were directly related to her disability, (4) my client was directly in the process of getting information required by the district from the individual treating her for her disability, and that the district would be informed as to what accommodation was appropriate. Regarding the request contained in the letter, I spoke with Darren Edwards of your office on the afternoon of May 9, 1997 and informed him that Ms. Woessner would provide the requested information as early as possible. As I have previously informed you, and as I informed Mr. Edwards during the aforementioned conversation, Ms. Woessner obtained a copy of School Board Policy 3.06, and is in the process of complying with its dictates. Because of the nature of the information required by the Policy and the strictness of the Policy, it is not possible for Ms. Woessner to comply with your request that she have all information you requested in Ms. Howard's office by this afternoon. I would further note that this is the first time in the many instances in which I have dealt with the Palm Beach County School District on ADA accommodation questions that a deadline has been imposed on an employee. I have checked Policy 3.06 and can find no mention of a deadline within which an employee must provide the requested information. In short, it appears that Ms. Woessner has been singled out for special treatment. I consider this to be not only inappropriate, but possibly unlawful. I would also point out that your request implies that the information requested should come from me, Ms. Woessner's attorney, and not a mental health counselor. In short, it is my client's intention to comply with the District's ADA policy as quickly as possible. If you have any questions regarding this matter, please do not hesitate to contact my office. In a letter sent to Respondent's attorney on May 12, 1997, the School District's General Counsel acknowledged receipt of his May 12, 1997, letter and further stated the following: Ms. Woessner was reassigned to her home with pay in November, 1996. Over the past six months, and during several conferences with Ms. Woessner, there has never been any mention of her alleged disability or request for an accommodation. The principal confirmed that during the last nine years, Ms. Woessner never indicated she suffered any mental disability. Certainly no request for an accommodation was ever made. However, Ms. Woessner was very aware of our ADA policy since she had requested on prior occasions, ADA accommodations for her allergies. Irrespective of the ADA claim which has only recently been made, Ms. Woessner acknowledged her actions which comprise the felony charges against her. After admitting to the charges, termination proceedings were commenced. It was only at the eleventh hour, when the Board was asked to proceed with her termination of employment, did you state that Ms. Woessner was suffering from a disability. Although the administration sought termination related to Ms. Woessner's admitted criminal behavior, we agreed to consider your request on your client's behalf. We asked you to specify the nature of the disability, how it affected a major life activity, and the specific accommodation she was seeking. Your letter to the District indicates that this information will not be provided in the time frame requested. As a matter of law and in accordance with the very same case you cited (Hindman v. GTE), the District has never been made aware of the disability allegedly suffered by your client at the time of the incident, at the District meeting, or when she was notified of the termination proceedings. There was no request for an accommodation which specifies the accommodation, as required by the ADA either prior to her criminal behavior, nor after she was notified in April of the termination proceedings. The District will proceed with the termination proceedings on May 21, 1997. On May 21, 1997, ten to fifteen minutes before the start of the School Board meeting scheduled for that day, Respondent's attorney handed the School District's Chief Personnel Officer a letter addressed to Diane Howard, the School District's Director of Employee Benefits and Risk Management, which read as follows: Enclosed please find a copy of an affidavit executed by Dr. Mark Ellinger. Dr. Ellinger is Debora Woessner's psychologist and has provided the affidavit to assist Ms. Woessner in obtaining an accommodation for a disability pursuant to School Board Policy 3.06. Ms. Woessner is a teacher assigned to Forest Hill Elementary School, and holds a Professional Services Contract. Her Social Security Number is . . . . As you can see from the Affidavit, Ms. Woessner has had some recent difficulties related to her disability, and has been recommended for suspension without pay and termination by the District. Ms. Woessner's position, which is supported by her Doctor, is that the actions for which she is being terminated are directly related to her disability and that she can continue her teaching position if she is provided with a reasonable accommodation. Ms. Woessner has already provided her doctors with releases so that the School Board can obtain her medical records. Dr. Ellinger's address and telephone number are as follows: . . . . I will provide you with similar information for Dr. Yetz in the near future. Please keep in mind that this correspondence, and the attached affidavit, are confidential pursuant to both the Americans with Disabilities Act and Florida Statutes. As such, copies may not be provided to the press, or any individual not involved with making a determination of whether Ms. Woessner is entitled to an accommodation. If you have any questions regarding the matter covered in this letter or the affidavit, please do not hesitate to contact my office. The affidavit of Dr. Ellinger, which was appended to letter, read as follows: I am a clinical psychologist working in Palm Beach County, and have been treating Debora Woessner since August 15, 1994, for mood and substance abuse problems. In addition to being treated by me, Ms. Woessner sees Dr. Yetz, a [p]sychiatrist, for medication. The specific diagnos[e]s for Ms. Woessner are Depressive Disorder, not otherwise specified (311.00 DSM IV) and Cannabis Dependence (304.30, DSM IV) with sustained partial remission.4 The medication Ms. Woessner takes significantly reduces the severity of her disorder.5 Ms. Woessner's disorders are directly related to her to having grown up in a situation where she was physically and psychologically abused, which later manifested itself in psychiatric problems such as depression, substance abuse, and relationship problems. Ms. Woessner's disorders interfere with her ability to interact with others, and impact her work. More specifically, Ms. Woessner's disorder, particularly in the absence of the medication prescribed by her psychiatrist, significantly restricts her ability to interact with others as compared to the average person in the general population. Ms. Woessner was involved in an incident in November of 1996 where she damaged a man's trailer and used his credit cards to make purchases without his assent. Had it not been for her abusive childhood and its subsequent psychiatric illness, Ms. Woessner would not have acted out in such an aggressive manner. Her psychological problems directly caused and are related to the incident that occurred in November. It is highly unlikely that Ms. Woessner will repeat such actions in the future.6 Ms. Woessner is a good, dedicated and caring professional who genuinely wants the best for her students. Her profession has always given a sense of pride, meaning and structure to her life. Ms. Woessner loves her work, which is a central part of her identity. Ms. Woessner has been a hard worker in psychotherapy and has with tenacity chipped away at her various problems with success. She has been consistent in therapy and follows up on recommendations to better herself and resolve her problems.7 Ms. Woessner does not represent a threat to herself or anyone and her problems are treatable. Ms. Woessner should receive a leave of absence until the beginning of the 1997-1998 school year so that she can resolve her problems. During this time, Ms. Woessner will be treated for her problems and will undergo testing to ensure that her problems have been resolved.8 It was not until September of 1997 that Howard received the May 21, 1997, letter from Respondent's attorney's and the attached affidavit of Dr. Ellinger. Upon receiving these documents, she prepared and then sent to Respondent's attorney the following written response: I am in receipt of your letter dated May 21, 1997 and directed to my attention. I am sorry for the delay in response, however, I just received this letter on September 17. It came to my attention through our Legal Counsel as they were preparing for a hearing. I am sorry I never received this before, but I will try to answer it now. Your letter indicates you are asking for an accommodation for Debora Woessner. You are providing an affidavit from a clinical psychologist indicating that Ms. Woessner suffers from depressive disorder and cannabis dependence. You do not state a specific type of reasonable accommodation in your letter, however, the affidavit provided by Mark Ellinger, the Clinical Psychologist, indicates that allowing Ms. Woessner a leave of absence for the rest of the school year would give her time to treat [her] for her problems. While a depressive disorder may be considered a disability under the ADA, and a leave of absence can be an acceptable accommodation, we do not usually require that leave requests go through as an ADA accommodation. The School District leave policy is so generous that we would allow her to have a medical leave without going through the ADA process. I do understand that Ms. Woessner has since been terminated from the School District and that the first time that the ADA accommodation request was brought up was at a School Board meeting when the School Board was considering her termination. Apparently your client was terminated for misconduct, specifically destruction of property, breaking and entering and theft. Even if I could consider making an accommodation for your client's problems, I could never accommodate destruction of property, breaking and entering and theft. We can accommodate time to take the medication, other things like leave of absence, but not improper behavior. I am enclosing a copy of the new School Board policy with a form that should be completed if you think you have anything else to offer that could be considered. I do believe that the time to bring up an accommodation request would have been prior to a termination hearing. The School Board's Action Contrary to what Howard had stated in her letter, Respondent had not been terminated by the School Board. The School Board had merely suspended Respondent without pay (effective following the end of the 1996-1997 school year) pending the outcome of this dismissal proceeding. The Collective Bargaining Agreement As a teacher employed by the School District, Respondent is a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract). Article I, Section D, of the CTA Contract addresses the subject of "management rights." It provides as follows: The [School] Board hereby retains and reserves unto itself, the Superintendent, the principals and other administrative personnel of the School System, all powers, rights, authority, duties and responsibilities, and the exercise thereof, as conferred upon and vested in them by the Constitution and the Law and the Regulations of the United States and the State of Florida, and the policies of the School Board of Palm Beach County, in keeping with the provisions of this Agreement. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provides as follows: Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations,9 progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO.
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 dismissing her as an employee of the School Board. DONE AND ENTERED this 10th day of April, 1998, in Tallahassee, 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1998.
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of November, 2016.
The Issue The issue in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired.
Findings Of Fact Material Historical Facts At all times material to this case, Respondent Jimmie Alvin ("Alvin") was a School Security Monitor in the Miami-Dade County School District ("District").1 From 1989 until September 2003, when Petitioner Miami-Dade County School Board ("Board") suspended him without pay, Alvin worked at Miami Beach Senior High School. During the 2001-02 school year, Alvin failed to show up for work without authorization at least twice, and he was tardy some 28 times. Alvin was disciplined for this poor performance at a conference-for-the-record held on April 25, 2002. Alvin's attendance improved thereafter, and during the 2002-03 school year, he was late for work just six times. Other problems arose, however. In September 2002, a female student accused Alvin of having touched her arm inappropriately while, allegedly, simultaneously calling her a "whore" in front of others. Following the student's complaint, the District charged Alvin with violating the School Board Rule against improper employee- student relationships. School detectives investigated the charge and found it "substantiated" on conflicting evidence. At the final hearing in this case, however, Alvin credibly denied the allegations. For its part, the Board offered no persuasive, competent, nonhearsay evidence to prove that Alvin actually committed the acts of which the female student had accused him. Thus, it is determined as a matter of ultimate fact that the evidence fails to establish Alvin's guilt with regard to the charge of engaging in an improper employee- student relationship. On March 3, 2003, Alvin was arrested and charged with possession of cocaine and marijuana with intent to sell. On April 24, 2003, Alvin pleaded "no contest" to the criminal charge and was sentenced to one year's probation. At a conference-for-the-record on May 6, 2003, Alvin was notified that the District would review information concerning his past attendance problems, the alleged improper relationship with a student, and his recent criminal conviction, to determine an appropriate disciplinary response. At its regularly scheduled meeting on September 10, 2003, the Board suspended Alvin without pay pending the termination of his employment for just cause. At all times material, Alvin was a member of United Teachers of Dade ("UTD"), a teachers' union. The conditions of Alvin's employment were governed by a collective bargaining agreement referred to in the record as the "UTD Contract."2 Ultimate Factual Determinations The undersigned is unable to determine whether, as a matter of ultimate fact, Alvin should be fired for reasons stated in the collective bargaining agreement, because the UTD contract is not in the evidentiary record.3 Therefore, it is determined that the Board has failed to carry its burden of proving the alleged grounds for dismissal by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Alvin of all charges brought against him in this proceeding; (b) providing that Alvin be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Alvin back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 19th day of March, 2004.
Findings Of Fact At all times material hereto, Respondent Norrine W. Williams was employed by Petitioner as a teacher aide. She worked at Amelia Earhart Elementary School, a center for special education, for about eight years, including the 1986-1987 school year. While employed at Amelia Earhart, Respondent had continuing financial problems, which caused bill collectors to call and visit the school site on a daily basis. As a result, the work of the school's office staff was disrupted, many people became aware of Respondent's financial problems, and Respondent and her bill collectors were discussed throughout the school. On March 30, 1987, Respondent was arrested in the principal's office and taken into custody by United States Secret Service agents. She was charged with credit card offences. On April 14, 1987, Respondent appeared at a Piggly Wiggly store and attempted to cash a check in the name of Flora Linton. The store manager recognized her as the person who had cashed two previous checks in that name, which checks had been returned to the store because they had been written on a closed account. The store manager summoned a Miami Springs police officer, and Respondent went to the police station with the police officer at his request to discuss the matter. She was joined by a male and by her 76 year-old aunt Flora Linton. During the questioning at the police station, the police officer determined that Flora Linton did not know that her niece had stolen checks from her and had been forging her name to those checks and cashing them for her own personal gain. Respondent admitted to having issued the two previous worthless checks in the amounts of $125.75 and $84.90. She was not charged with a crime on the condition that she make full restitution to Piggly Wiggly. She did so approximately one week later. Several months later the Piggly Wiggly store owner was present in his new store on the other side of town when Respondent attempted to cash a check at that store. The check she was attempting to cash was another of the Flora Linton stolen checks, and she had again forged her aunt's name to that check written on a closed account. When approached by the store owner, she recognized him and turned in her check cashing card and walked away. While Respondent was at the Miami Springs police station on April 14, 1987, a routine background check was run regarding her. It was discovered that there was an outstanding bench warrant for her, and she was taken to the Dade County jail. On April 20, 1987, Respondent was arrested a second time at the school site and taken into custody by law enforcement officers. She admitted that she had in fact fraudulently obtained a Nieman-Marcus credit card by providing fictitious information on the credit card application. She had subsequently charged $972 worth of merchandise at the Nieman-Marcus store using the fraudulently-obtained credit card. She was charged with second degree grand theft, a felony offense, for fraudulently obtaining a Nieman-Marcus department store charge card. She advised the arresting officers that she had no intention of making restitution to Nieman-Marcus. As was the case with Respondent's first arrest at the school site on March 30, 1987, her second arrest on April 20, was observed by office personnel. In the process of being escorted out of the building her second arrest was evident to teachers and students in the areas outside of the principal's office. Respondent plead "no contest" to the criminal charges regarding the fraudulent credit card. She was sentenced to probation and was ordered by the Court to make restitution to Nieman-Marcus in the sum of $972. As of the time of the formal hearing in this cause, the deadline for making restitution had passed, and restitution had still not been made. Although Respondent appeared for the formal hearing in this cause, she left as the proceedings commenced and did not return. Had she remained she would have been arrested by the police officers who testified in this cause since there was still pending an open felony warrant for probation violation for previous worthless checks. While shopping at the Grand Union, formerly the Miami Springs Piggly Wiggly, the principal of Amelia Earhart saw Respondent's name scotch taped to the cash register with a notice advising the cashiers not to cash checks for that person. That Grand Union is located near Amelia Earhart Elementary School. The school board rules concerning employee conduct are contained in a staff handbook. Teacher and teacher aides have staff meetings with administrative teams to review the rules and policies of the school board. Respondent attended those meetings and was specifically advised of the school board rules. Respondent's conduct concerning the issuing of forged and worthless checks, fraudulently obtaining a credit card, having difficulties with bill collectors at the school site, having been adjudicated guilty of grand theft, and failing to pay court costs and make restitution as ordered by the court, constitutes conduct unbecoming a school board employee and misconduct in office in violation of school board rules 6Gx13-4A- 1.21 and 6Gx13-4C-1.01.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: A final order be entered affirming the Respondent's suspension without pay and dismissing Respondent from her employment with the School Board of Dade County. DONE and RECOMMENDED this 17th day of March, 1989, in Tallahassee, Florida. LINDA M. RIGOT 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 17th day of March, 1989. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
The Issue Whether there is just cause for suspending and dismissing Respondent from her employment with Petitioner.
Findings Of Fact Respondent, Rebecca Price (Price), has been an educator for 33 years during which she was employed by Petitioner, Palm Beach County School Board (School Board), for 27 years. At all times pertinent to this proceeding, Price was a Guidance Counselor at John F. Kennedy Middle School (JFK), employed by the School Board pursuant to a Professional Service Contract. In August 1997, Heywood Howard, a former Assistant Principal at JFK, introduced Price to Maurice LeFlore (LeFlore), who had recently been hired by the School Board as a band instructor at JFK. Mr. Howard told Price that LeFlore was a fellow "Rattler," an alumnus of Florida Agricultural and Mechanical University. Because LeFlore had been introduced by Mr. Howard, and was a fellow alumnus and co-worker, Price rented a room to him from August 13, 1997, until the date of LeFlore's arrest in March 1998. Price had a close relationship with LeFlore, but it was not of a romantic nature. She was his landlord, and they occasionally shared meals and watched television together in the evenings. Because LeFlore did not have either a car or a driver's license when he began renting a room from Price, he rode to and from work with Price. It was common knowledge that LeFlore was living at Price's house. On February 27, 1998, JFK students Darria Brooks, Shavontay Brown, and Carolyn Horne discussed with Sherry Sweeting, a teacher at JFK, rumors relating to LeFlore. During the course of the conversation, the students said that they heard that LeFlore had "come onto" a female student in an inappropriate manner. Ms. Sweeting reported the conversation to Lee Hooks, her superior and the Department Chair of Fine Arts at JFK. The principal was not on campus at the time that Mr. Hooks talked with Ms. Sweeting. Mr. Hooks tried to contact the assistant principal, who also was not available. Since some of the students who had talked to Ms. Sweeting were in the eighth grade, Mr. Hooks called Price, who was a guidance counselor for the eighth grade, to his office and told her that he had a situation that he thought she needed to look into. Price went to Mr. Hooks' office, and he told her what Ms. Sweeting had said. Mr. Hooks told Price that she could use his office to talk with the students. Mr. Hooks called Ms. Sweeting and told her to send the students to his office. When Shavontay Brown, Darria Brooks, and Carolyn Horne came to Mr. Hooks' office, he left to teach his class. Mr. Hooks returned to his office for a few seconds during the interview to retrieve some teaching materials. Mr. Hooks did not contact the principal concerning the rumors nor did he call the child abuse hotline. He was not disciplined for failure to report child abuse. Price asked the students to tell her what they had heard. Carolyn Horne told Price that LeFlore liked to flirt. Darria Brooks told Price that according to Shannon White, LeFlore had pushed Ms. White up against the wall in his office and had pressed himself against her. Shavontay Brown told Price that she had heard rumors that LeFlore had rubbed against Ms. White while he and Ms. White were in the band room. Price asked the students if they had seen the incident themselves, and they responded that they had not. She told them that they should not be saying things without knowing if they were true and that students could be suspended for spreading rumors. She essentially told them that the matter was none of their business. Price had Ms. White sent to Mr. Hooks' office to discuss the rumors. Price told Ms. White and the other students that it was a serious matter. She said that LeFlore, who had just graduated, was like a son to her and that such rumors could result in LeFlore losing his job. Ms. White said that LeFlore had pushed her up against the wall and put his hands over hers but that he was just playing. Ms. White told Price that another student, Ryan Spence, was in LeFlore's office playing on the computer and witnessed the incident. According to Price, when she first asked Ms. White if anything had happened, Ms. White said, "sort of." Price told Ms. White that if LeFlore had done the things that were rumored he would have to be punished and Price would have to tell Ms. White's mother what had happened. Ms. White then told Price that nothing at all had happened. Price had Ryan Spence brought to Mr. Hooks' office for an interview while Ms. White was still present. Ms. Spence told Price that she was present in LeFlore's office when she saw Ms. White and LeFlore walk into the office. LeFlore pushed Ms. White up against the wall. While Ms. White was facing the wall with her palms flat on the wall, LeFlore rubbed the front part of his body against her. Price denies that Ms. Spence told her LeFlore had pushed Ms. White against the wall and rubbed his body against Ms. White. Price testified that she asked Mr. Hooks to be a witness to Ms. White's statement that nothing happened. Mr. Hooks denies that he witnessed such a statement. Mr. Hooks was told by Price in the presence of the students that there was nothing to the incident and none of the students interviewed said anything to the contrary. During her interview with students Brooks, Horne, and Brown, Price was upset and angry. She raised her voice at the students, but did not yell or shout. Price had calmed down by the time Ms. White and Ms. Spence came to Hooks' office to be interviewed. Mr. Hooks, who was teaching in the classroom next to his office, did not hear Price shout during the interview. Jacquelina Batista, a guidance counselor at JFK, was told by a student that LeFlore had made inappropriate contact with Ms. White. However, Ms. Batista was not told that there was an eyewitness to the incident. She in turn told Lisa Barry, who was Ms. White's guidance counselor. Ms. Barry agreed to talk with Ms. White. Ms. Batista did not contact the principal nor did she report the rumor to the abuse hotline. No disciplinary actions were taken against Ms. Batista. The Monday following her conversation with Ms. Batista, Ms. Barry asked Ms. White how things were going and if there was anything that she needed to talk about. Without going into anything specific, Ms. Barry said that she had heard about a situation and thought that Ms. White might want to talk about it. Ms. White said that she had already talked to Price and that it was just rumor and gossip. Ms. Barry never specifically mentioned LeFlore during the conversation. Ms. Barry reported her conversation with Ms. White to Mr. Gattozzi, who was the guidance coordinator and Ms. Barry's supervisor. Mr. Gattozzi reported the conversation to the principal. Ms. Barry did not know there was an eyewitness to the incident between LeFlore and Ms. White; she believed that nothing had happened. She was not disciplined. Price stated that she saw Ms. Barry and Ms. White talking and that later on the same day she stopped Ms. Barry in the hallway and asked Ms. Barry what Ms. White had said. According to Price, Ms. Barry assured her that Ms. White had said nothing happened. Ms. Barry denies that she ever discussed Ms. White with Price. Ms. White changed her story after Price began questioning her because she "didn't want the whole situation to get out because---I just wanted to let it go. And I didn't want it to be all out. So I was just saying nothing happened, because I didn't want everybody to start finding out like they did." On March 20, 1998, another student reported that she had been abused by LeFlore. The Riveria Beach Police and School Police conducted an extensive investigation. LeFlore was arrested on eleven counts of lewd assault and confessed to lewd assault on four students, of whom Ms. White was not one. Article II, Section M of the Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, provides: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. . . . Dismissal. . . . The School Board's policy D-5.30 involving suspected cases of child abuse provides: (1) All school personnel, including teachers, administrators, and noninstructional staff, who know, or have reasonable cause to suspect that a child is an abused or neglected child shall report this information to the principal of the school center. . . . The principal shall report such knowledge or suspicion to the Department of Health and Rehabilitative Services (HRS). * * * (6) Any employee who knowingly and willfully fails to report such case as required . . . may be subject to disciplinary action by the School Board and may be guilty of a misdeamanor [sic] of the second degree, punishable as provided by law. In March 1997, Price had been provided with an "Educator's Resource Manual on Child Abuse," which provides: Reporting child abuse/neglect Your role as a school teacher or official makes you a mandated reporter of child abuse and neglect. This manual gives you information on how to recognize various types of abuse and neglect and behaviors of children that may signal they are being abused and/or neglected. The following is a discussion of the specifics of reporting abuse and some commonly asked questions. When should I report? Whenever you know or suspect that a child is being abused or neglected. You must use your professional training and experience to make the decision. What if I am not sure a child is being abused? It is not necessary for you to prove abuse or neglect. If you are reasonably suspicious, you must report. What if I am wrong? Sometimes mistakes are made but the system must be used. It is better to err on the side of wrongful reporting than to risk the further injury or death to the child. * * * What if my principal or superintendent will not allow me to report? Reporting is a personal responsibility. You do not need the permission of your principal, although you should approach your principal first and seek his/her cooperation. It is your responsibility to report. What if I suspect my principal or teacher of abuse? You must report whenever you suspect abuse or neglect. Remember, as a mandated reporter the law will protect you. How do I report? Call the Florida Abuse Hotline 1-800-962-2873 or local enforcement in case of an emergency. . . . In Price's 27-year career with the School Board, she had has no other disciplinary action taken against her. She has had satisfactory evaluations from the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Rebecca Price violated School Board Rules 6B-1.006(3)(a) and (5)(a), and did not mischaracterize her role in the investigation, and imposing a penalty of suspension without pay for one year retroactive from September 24, 1998. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 12th day of May, 1999. COPIES FURNISHED: Thomas E. Elfers, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Ronald G. Meyer, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Dr. Joan Kowel, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at 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) in Miami-Dade County, Florida (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES 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. At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as follows: Corporal Punishment - Prohibited The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary action depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
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 as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, 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 16th day of December, 2008.
The Issue Whether Petitioner has cause to terminate Respondent's employment as a school custodian.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by Petitioner as a school custodian. In the fall of 1994, the Respondent was arrested and charged with the offense of theft. The property in question was a Green Machine weed eater that was owned by the Petitioner. Petitioner assigned John Bell, an investigator employed by the Petitioner's police department, to investigate the alleged theft. Respondent admitted to Mr. Bell that he had possession of the piece of equipment, he knew that it was valued at approximately $300.00, but he asserted that he bought the machine for $100.00 cash from an unknown person Respondent said was a school board employee. Respondent did not have a receipt for the purchase or any other evidence to substantiate his explanation as to how he came into possession of the stolen property. In December 1994, Respondent was found guilty of theft following a bench trial in the criminal proceeding. Adjudication of guilt was withheld and he was fined $105.00 in court costs. He was ordered to pay restitution to the School Board in the amount of $160.82 for the cost of its investigation. The School Board has the authority to terminate Respondent's employment for cause. The School Board's Policy 3.27 pertains to suspension and dismissal of employees. If the Superintendent finds probable cause to recommend to the School Board that a member of the non-instructional staff be suspended without pay and subsequently dismissed, the Superintendent is required to notify the employee in writing. The policy also contains provisions for the information that must be included in the notice to the employee. By letter dated February 9, 1995, the Superintendent advised Respondent that cause existed to terminate his employment on the grounds of theft of school property and misconduct in office. On February 21, 1995, the School Board, based on the Superintendent's recommendation, suspended Respondent's employment without pay pending this termination proceeding. The Superintendent and the School Board followed the pertinent policies in suspending the Respondent's employment without pay pending this dismissal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school custodian. DONE AND ENTERED this 21st day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 21st day of June, 1995. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Mr. Noyland Francis 7326 Willow Spring Circle Lantana, Florida 33463 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813
The Issue Whether the Respondent, Gloria P. Adams, violated School Board rules regarding a drug-free workplace, and excessive absenteeism; whether she abandoned her position of employment; whether Respondent committed gross insubordination or willful neglect of duty; and if so, whether such violation(s) support termination of Respondent's employment with the School District.
Findings Of Fact At all times material to the allegations of this case, the Petitioner is the authority charged with the responsibility of operating, controlling, and supervising all public schools within the Miami-Dade County, Florida School District. As such, its duties also include the personnel decisions related to teachers employed by the School District. At all times material to the allegations of this matter, the Petitioner employed the Respondent pursuant to a professional services contract. The Respondent was assigned to serve as a teacher at Jan Mann Opportunity School. On December 21, 2001, the Respondent presented for work staggering (in fact she fell down) with a disheveled appearance. At that time Respondent spoke with slurred speech and used verbally aggressive words. Based upon her appearance and actions, together with what was perceived as a strong odor of alcohol, the Respondent's supervisor determined that she should complete a "reasonable suspicion form." The form is designated when an employee is suspected of drug and/or alcohol use on school property. Betty Major completed the form (Petitioner's Exhibit 1) and noted Respondent's unsteady gait as well as the other indicators of being under the influence. Moreover, the Respondent admitted she had been drinking alcohol the night before. During the interview conducted by Ms. Major, the Respondent exhibited marked irritability and expressed anger. As a result, the Respondent was relieved of duty. The Respondent subsequently refused to submit to a drug and alcohol screening. On January 10, 2002, the School Board's Office of Professional Standards held a conference-for-the-record (CFR) and informed the Respondent that the refusal to submit to drug and alcohol screening would be considered a positive test response. The details of the CFR are memorialized in Petitioner's Exhibit 2. At the CFR the Respondent was also advised that she had excessive absences. Although the Respondent maintained she was physically ill and unable to attend school, documentation from a treating physician to support the number of absences has not been provided. At the conclusion of the CFR, the Respondent was provided with a copy of the School Board rule regarding its policy for a drug-free workplace, a copy of the responsibilities and duties rule, and the code of ethics of the Education Profession in Florida. The CFR was concluded with an indication from Respondent that she would promptly address the issues raised therein. As part of the CFR the Respondent was advised of her opportunity to obtain assistance through the Employees' Assistance Program (EAP). Among its functions the EAP counsels School Board employees with substance or drug abuse concerns. Alcohol is considered a "drug" under the drug-free workplace policy. The Respondent initially agreed to complete the EAP requirements in order to return to the classroom. She did not fully cooperate with or complete the program. On April 15, 2002, a second CFR was conducted with the Respondent. This meeting again sought to address the Respondent's ability to return to duty and her noncompliance with the drug-free workplace policy. At the second CFR the Respondent again expressed a willingness to complete the EAP and to obtain appropriate help for her on-going problems. The Respondent was directed to comply with the recommendations made by the School District's EAP. The Respondent continued to be apologetic for her past behaviors. On August 13, 2002, a third CFR was held between the Respondent and the Office of Professional Standards. The agenda for that meeting was similar to the past CFRs. The Respondent had not complied with the EAP, had not explained the unauthorized excessive absences, and the issue of the presumptive positive response for the drug and alcohol screening still loomed large. Again, as in the past, the Respondent apologized for not completing the EAP. Additionally, the number of leave without pay (unauthorized) absences had by that time grown to The Respondent had also exhausted her sick/personal leave time. The absences were directly attributable to the Respondent's failure to complete the EAP. Basically, the Respondent was unable to be cleared to return to the classroom until she completed the EAP. She failed to complete the EAP so the number of unauthorized absences continued to grow. Eventually the Respondent was dropped from the EAP due to lack of participation. Her case was then closed. The Petitioner gave the Respondent numerous opportunities to demonstrate she was fit to return to the classroom. The Respondent did not offer any credible explanation for her actions. Regrettably, the Respondent demonstrated by her failure to comply with the EAP that she was unprepared to return to the classroom. The Respondent did not request medical leave (with appropriate documentation from a physician) if her condition were due to a physical illness. Moreover, the Respondent did not apply for any leave that might have protected her job. This lack of judgment in itself suggests the Respondent was impaired and therefore unable to perform her duties as a classroom teacher. At the minimum, had Respondent attended the EAP she could have received counseling and assistance that might have protected her future employment with the School District.
Recommendation 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 confirming the initial decision to suspend without pay and to terminate the employment of the Respondent based upon just cause as set forth above. It is further recommended that, should the Respondent complete an accepted program for substance abuse and demonstrate fitness for Duty, that the School Board consider re-employment of the Respondent. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2003. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Gloria P. Adams 19511 Northwest 8th Avenue Miami, Florida 33169 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
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.
