Findings Of Fact Respondent had been employed by Petitioner as a teacher's aide for approximately eight years, and was so employed at the beginning of the 1982-83 school year. She was terminated by Petitioner at its meeting on December 8 1982. Respondent had 34-1/2 days of absences without accrued leave during October, November, and December, 1982. Most of the early absences were authorized by Dr. Patrick Gray, a personnel official of Petitioner's. On November 3, 1982, Dr. Gray informed Respondent that she was at that time on unauthorized leave and gave her ten days to request leave or face charges of abandoning her position (Petitioner's Exhibit 1). Respondent's failure to comply with this ultimatum led to her discharge. Respondent had serious personal problems during this period. Petitioner attempted to obtain psychiatric assistance for her, which she rejected. Respondent conceded that she abandoned her position, citing low pay and Petitioner's failure to promote her. She voiced these and other grievances with the school system, all of which are beyond the scope of this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order affirming Respondent's discharge from its employment. DONE AND ENTERED this 6th day of May, 1983, at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Ms. Mary A. Lilly 14990 Northeast 10 Court Miami, Florida 33161 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether respondent discriminated against petitioner, either on account of her age or on account of an alleged handicap, in violation of Section 760.10 et seq., Florida Statutes (1989), in terminating her employment?
Findings Of Fact Petitioner Doris Stephens, a woman now approximately 56 years of age, began working for respondent Tom's Foods, Inc., on June 30, 1981, sweeping floors at its plant in Perry, Florida. After various intervening assignments, she ended up as a packer on the potato chip line. Packers remove packages of potato chip bags from a conveyor belt and deposit them in cardboard boxes, which they form by folding. As a packer on the potato chip line, her duties included keeping a record of how many boxes she packed in the course of the shift, and cleaning up at the end of the shift. Headquartered in Columbus, Georgia, respondent Tom's Foods, Inc., employed 15 or more people in Florida for a period in excess of 20 weeks this year and last. On March 6, 1989, respondent fired Ms. Stephens, who has arthritis, for "excessive absenteeism." By all accounts, she was a good employee for her almost eight years with respondent, whenever she was at work. Petitioner's arthritis has not interfered in any way with her ability to perform her work when she was well enough to be at work. Petitioner attributes the absences on account of which she was discharged to visits to the doctor in Gainesville who treated her for arthritis, to certain side effects of medicine she took for arthritis, and to visits to a doctor in Perry, on account of the side effects. Company Policy People who work for Tom's Foods, Inc. as packers are paid nothing when sickness keeps them away from work for periods of up to four days. Without regard to the length of their service, moreover, they are discharged if illness (among other causes) occasions too many absences. The company's written attendance policy provides: 5. Definitions: A period of absence counts from the day an employee stops work until the day he/she returns to work. (This could include one day or three days, but would still count as one period.) If the employee is going to be absent beyond the seventh (7th) day (eight days or more), he/she must request and be granted a Leave of Absence and must provide a doctor's release before returning to work. The six-month period in which an employee's attendance is measured dates from the current date back six months, dropping off the oldest date and adding the newest date. Classification of absences: In order to define "excessive absenteeism" and deal with it in a fair and consistent manner, absences will be classified as either chargeable or non-chargeable: Non-chargeable absences are certain specifically identified absences which will not be charged against an employee's overall attendance record for the purpose of determining excessive absenteeism. These are absences due to: Jury duty. A death in the immediate family which qualifies the employee for funeral leave pay. (Absences due to other family deaths require prior approval from the plant manager.) An on-the-job injury. An official and formally-granted leave of absence (see Policy Statement A-204, Leave of Absence). Chargeable absences are all other absences for any reason; these will be charged against the employe's attendance record and will be used to determine excessive absenteeism. Excessive tardiness/early departure Because of production requirements, employees are expected to be present and at their work stations at the beginning and the end of their shifts. Failure to comply with these requirements will be a basis for disciplinary action in accordance with the provisions of this policy. Definition of tardiness: Any employee not present in his/her department and ready for work on his/her job scheduled starting time is considered "late for work" or tardy. . . . 3. Excessive tardiness/early departure. Excessive tardiness/early departure will be cause for discipline of the employee and may ultimately result in discharge. Tardies or early departures of less than three (3) hours are non-chargeable if prior notice is given to and approval obtained from the supervisor. Prior notice for a late start should be given at the end of the employee's previous shift. Prior notice for an early departure should be given four (4) hours before the end of the shift. Three (3) separate tardies and/or early departures will be counted as one (1) chargeable absence and will be applied in conjunction with all other chargeable absences as outlined in Sections B and D of this policy statement. Excessive absenteeism Excessive absenteeism is defined as six (6) chargeable periods of absence - or a maximum of eighteen (18) days of absence for chargeable reasons - within any six-month period. Excessive absenteeism cannot be tolerated and any employee guilty of such will be discharged under the following procedures: A verbal warning will be issued upon the fourth (4th) period of absence within any six-month period. A written warning will be issued upon the fifth (5th) periods of absence within any six-month period. Termination will occur upon the sixth (6th) period of absence within any six-month period. Respondent's Exhibit No. 12. This version of respondent's policies has been in effect since August 1, 1987, although similar policies have obtained at all pertinent times. An absence of less than five days, although for medical reasons, counts as a chargeable period of absence, if it lasts three hours or longer. A shorter absence, even a few minutes' tardiness, counts as one-third of a period of absence. In the event of a medical disability lasting five or more days, an employee is eligible for a formal leave of absence; and, when an employee obtains such leave, his absence is not charged against him for purposes of the absenteeism policy. Three Minutes Late Ms. Stephens missed work on September 26 and 27, 1988, because she was ill; she attributed her illness to arthritis medication she took. She was absent on October 17, 1988, when she went to Gainesville to see the doctor who treats her for arthritis. She was absent three days running on December 16, 17 and 18, again on account of illness she claimed her arthritis medicine caused. On December 27, 1988, going to see a doctor, because she was ill, made her 2.5 hours late. She missed three hours' work on January 3, 1989, again on account of illness. The next day she was three minutes late to work. Because she did not obtain permission to miss work, either before she was too sick to work or before she was tardy, each incident counted as a third of a chargeable absence. In accordance with company policy, Don Cook, the supervisor who recorded petitioner's three-minute peccadillo on January 4, 1989, spoke to her two days later. He told her she had the equivalent of four periods of absence within less than a six-month period, and that "[t]wo additional chargeable POA before March 26, 1989, will warrant termination of employment." Respondent's Exhibit No. 5. The day Ms. Stephens returned from a two-day absence occasioned by her illness on February 13 and 14, 1989, she received a written warning that a single additional period of absence "before 3/27/89" would result in termination. Respondent's Exhibit No. 6. A final absence, this one also attributed to illness, lasted three days, March 1, 2 and 3, 1989, and resulted in her discharge. Respondent's Exhibit No. 7. Betty Davis, who "may be in her 50s," (T.92) and who may or may not have arthritis, filled the vacancy petitioner's discharge created. Because Ms. Davis, who had been doing similar work on another shift, was "the most senior person with that job classification," (T.91) company policy gave her the choice of taking petitioner's place. Consistent Application In the last two years, respondent has fired a number of other employees for violating its absenteeism policy. At the time of petitioner's discharge, no employee with six periods of absence in six months' time had been retained. Subsequently, however, two employees who had been absent six times in six months were not discharged, because supervisors had neglected to give warnings required by company policy after earlier absences. Although respondent had recently agreed to modify its absenteeism policy to accommodate an employee whose child suffers a "more than likely fatal" (T.98) illness, it was not shown that this employee had been absent six times in a six-month period. On more than one occasion, petitioner denied having any handicap, when asked on company forms. At no time before her discharge did petitioner seek accommodation on account of her arthritis, T.84, 135.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR deny the petition for relief from an unlawful employment practice. DONE and ENTERED this 31st day of December, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1990. COPIES FURNISHED: Dana Baird, Acting Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 William S. Myers, Esquire 3800 One Atlantic Center 1201 West Peachtree Street, N.W. Atlanta, GA 30309 Doris Stephens Route 4, Box 397 Perry, FL 32347
The Issue The issue for determination is whether Respondent should be suspended, without pay, and terminated from all employment with Petitioner for the offenses set forth in the Notice of Specific Charges.
Findings Of Fact No dispute exists that, at all times material hereto, Ms. Hankerson was an instructional employee with the School Board. Ms. Hankerson has been a teacher with the School Board for 11 years, beginning as a teacher with the School Board in 2000. She was first assigned to Renick Education Center. Subsequently, Ms. Hankerson was transferred to Barbara Goleman High School (Goleman) in Miami Lakes, Florida. During the 2009-2010 school year, she taught science to exceptional student education (ESE) students at Goleman. At the beginning of the 2010-2011 school year, Ms. Hankerson was advised that her department was being eliminated and that she needed to find another school at which to work if she desired to continue her employment with the School Board. She sought other schools and received an email from Howard McMillan Middle School (McMillan) to come for an interview. She accepted a teaching position at McMillan, effective September 20, 2010. While working at Goleman in Miami Lakes, Florida, Ms. Hankerson resided in Miami Shores, Florida. Her residence was in close proximity to Goleman. She had three children and was able to get her children to school and report to Goleman in a timely manner throughout her tenure at Goleman. Ms. Hankerson's travel time to McMillan was significantly greater than to Goleman due to McMillan being located further south than Goleman.2 During the 2010-2011 school year, all teachers at McMillan were required to report to work at 8:30 a.m. Professional meetings, which consisted of team meetings and department meetings, were held from 8:30 a.m. until 9:00 a.m. Team meetings were held three days a week. Department meetings were held two days a week, where teachers meet by department to discuss curricular activities and requirements. Faculty meetings were held every other Tuesdays, and, when faculty meetings occurred, no professional meetings were held because the faculty meetings replaced the professional meetings. At 9:00 a.m., teachers went to their respective classroom to meet their students, who began arriving at 9:00 a.m. Instruction began at 9:10 a.m., with homeroom followed by advisement, where the Comprehensive Research Reading Plan was implemented, and ended at 9:46 a.m. First period began at 9:56 a.m. School ended at 3:50 p.m. Ms. Hankerson was assigned a homeroom class. The students in her classroom consisted of eighth grade students, who were not performing at grade level in reading and were FCAT Level 1 students in reading. Ms. Hankerson's first period (Period 1) was a seventh grade civics class. Her students consisted of ESE students, with varying exceptionalities. She was the sole teacher. Ms. Hankerson was a co-teacher for four periods of the remaining school day, teaching science. The students for the four periods consisted of general education students and ESE students. Ms. Hankerson was the ESE teacher, and the other teacher was the general education teacher, who generally took the lead in the classroom. The second period (Period 2) was a seventh grade science class; the third period (Period 3) was an eighth grade science class; the fourth period (Period 4) was a sixth grade science class; and the sixth period (Period 6) was a seventh grade science class. Her fifth period (Period 5) was a planning period. No dispute exists that Ms. Hankerson's employment with the School Board is subject to, among other things, a professional service contract, a collective bargaining agreement (Agreement) between the School Board and the United Teachers of Dade (UTD), and policies and procedures of the School Board. School Board Policy and the Agreement provide teachers with one sick day of leave every month. At the beginning of each school year, each teacher is given, up front, four days of sick leave that the teacher can use. However, the accrual of sick leave is one sick leave day per month for the ten-month period that a teacher is employed with the School Board, totaling ten sick days of leave. During the ten-month period, if a teacher takes leave exceeding the ten days and does not have leave that is "banked," which is leave that is carried over from one school year to the next, it results in leave without pay, unauthorized. In a medical situation, if a teacher knows that he or she will be absent for an extended period of time, the teacher would apply for leave. If the absence will be over 30 days, the teacher would apply for medical leave and can use leave that is banked. However, if no leave is banked, it results in leave without pay, unauthorized. If a teacher is going to be absent from work, the teacher is required to call into a dedicated-absence telephone line at least one hour before the start of the workday. On the day that the teacher is absent, the teacher is also required to call his or her school 30 minutes prior to the scheduled student dismissal time, indicating whether he or she will report to work on the next workday in order for the school to make arrangements for a substitute teacher. A teacher, who is absent without prior approval, is deemed to have been willfully absent without leave, except in a situation of sudden illness or an emergency situation. Immediately upon beginning at McMillan, Ms. Hankerson began arriving late and using her sick days. Eight days after beginning at McMillan, on September 28, 2010, she took a sick leave day; on October 1, 2010, she took one day of leave without pay, unauthorized; and on October 13 and 19, 2010, she took one sick leave day and one-half sick leave day, respectively. On October 21, 2010, while she was at McMillan, allegations, unrelated to the instant case, involving inappropriate conduct and remarks were made against Ms. Hankerson. Effective October 22, 2010, she was removed from McMillan and placed at the School Board's Region office, pending an investigation. A substitute teacher was hired to take over Ms. Hankerson's classes. The allegations were referred for investigation to the School Board's Civilian Investigative Unit. Ms. Hankerson was assigned to the Region office from October 22, 2010, through February 22, 2011. While at the Region office, Ms. Hankerson continued her pattern of absences. Between October 22, 2010, and February 22, 2011, she accumulated an additional 18 days of absences: five and one-half days of leave without pay, unauthorized; seven days of leave without pay, authorized; and five and one-half days of sick leave. The investigation into the allegations was concluded. At a Conference-For-The-Record (CFR) held by the School Board's Office of Professional Standards (OPS) on November 29, 2010, memorialized in a Summary of CFR dated December 3, 2010, Ms. Handerson was advised that probable cause existed for violations of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics. At the CFR, the OPS provided her with a copy of the School Board rules; The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida; and a document titled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." Additionally, the OPS issued her directives, including adhere to all the School Board's rules and regulations; and comport, both at the workplace and in the community, in a manner that reflects credit upon herself and the School Board. By letter dated February 10, 2011, Ms. Hankerson was notified that the School Board had taken action, at its meeting on February 9, 2011, to suspend her without pay for five workdays from February 10, 2011, through February 16, 2011. Further, the letter notified her to report to work at McMillan on February 17, 2011. However, Ms. Hankerson did not serve the suspension from February 10, 2011, through February 16, 2011. The suspension was rescheduled to February 22 through 28, 2011, with her return to McMillan on March 1, 2011. Having served her suspension on February 22 through 28, 2011, Ms. Hankerson failed to return to McMillan on March 1, 2011. Moreover, she failed to call the dedicated absence telephone line at McMillan, the Absence Reporting System (ARS), one hour prior to the workday on March 1, 2011, to state that she would not report to work that day; and failed to call 30 minutes before the scheduled student dismissal on March 1, 2011, to state whether she would report to work on March 2, 2011. On March 2, 2011, Ms. Hankerson reported to McMillan for work and, also, reported ten minutes late, at 8:40 a.m. That same morning, McMillan's principal, Hilca Thomas, met with Ms. Hankerson and advised her that she (Ms. Hankerson) was required to report to work on March 1, 2011, not March 2, 2011; and that March 1, 2011, would be reported as leave without pay, unauthorized. Ms. Hankerson blamed the arrival on March 2, 2011, instead of March 1, 2011, on a miscommunication between her and the UTD representative. Further, Ms. Thomas reminded Ms. Hankerson of the hours of work and the attendance procedures, including communicating absences using the ARS. Ms. Hankerson stated that she would "not make it in at 8:30"; that she would "be late almost every morning because of [her] children and [she] live[s] far [away]"; and that being late was "unavoidable." Additionally, Ms. Thomas advised Ms. Hankerson that her (Ms. Hankerson's) undergarment was exposed and that she was not wearing appropriate attire. Ms. Hankerson abruptly left Ms. Thomas' office stating that she was going to UTD's office downtown. Shortly thereafter, around 9:15 a.m., Ms. Henderson returned to Ms. Thomas' office, but a substitute teacher was already deployed to Ms. Hankerson's classroom. As a result, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) could leave for the day and directed Ms. Hankerson to report back to McMillan for work on March 3, 2011. The events on March 2, 2011, were memorialized in a memorandum from Ms. Thomas to Ms. Hankerson on that same date. Ms. Hankerson acknowledged receiving a copy of the memorandum. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas to report to work at 8:30 a.m. and to follow the procedures for absences were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson failed to report to work at McMillan on March 3, 2011. Also, she failed to report to work on March 4, 2011. Both days were reported as leave without pay, unauthorized. Ms. Hankerson reported to work at McMillan on March 7, 2011, the next school day, at which time she was issued an Absence from Worksite Directive by Ms. Thomas. The Absence from Worksite Directive advised Ms. Hankerson, among other things, that attendance and punctuality were essential functions of her job and that, since September 20, 2010, she had accumulated 25.5 absences.3 The absences were reflected as four absences within her first month at McMillan (September 20 through October 22, 2010); 17.5 absences when she was assigned to the Region office during the investigation; and four absences when she was to report back to McMillan between March 1 and 4, 2011. Additionally, the Absence from Worksite Directive instructed Ms. Hankerson on the proper procedures to obtain authorized leave of absence. She had failed to avail herself of the proper procedures to obtain authorized leave of absence. Further, the Absence from Worksite Directive advised Ms. Hankerson that her noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. On March 7, 2011, Ms. Hankerson acknowledged receiving the Absence from Worksite Directive by signing the document. The evidence demonstrates that the directives issued to Ms. Hankerson by Ms. Thomas in the Absence from Worksite Directive were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to issue the directives. Ms. Hankerson failed to abide by and comply with the directives. On March 10, 2011, three days after receiving the Absence from Worksite Directive, Ms. Hankerson arrived at McMillan late, 9:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and reminded her (Ms. Hankerson) of the directives. Additionally, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) was inappropriately dressed. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On March 11, 2011, Ms. Hankerson arrived at McMillan late, 8:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and advised her (Ms. Hankerson) that, because she (Ms. Hankerson) had failed to call-in to the ARS, a substitute had been hired for the day. Ms. Thompson reported the absence as one day leave without pay, unauthorized. On March 21, 2011, Ms. Hankerson failed to report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on March 22, 2011, and, as a result, Ms. Thomas hired a substitute for March 22, 2011. Ms. Thomas met with Ms. Hankerson on March 22, 2011, and reviewed the absence with her (Ms. Hankerson); reported Ms. Hankerson's absence as unauthorized; and advised Ms. Hankerson that a substitute was hired for the day. Ms. Thompson reported each absence as one-day leave without pay, unauthorized. On March 29, 2011, Ms. Hankerson left McMillan approximately an hour early, at 2:45 p.m., without prior approval and without signing-out. Also, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, March 30, 2011, Ms. Hankerson did not report to McMillan. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, March 31, 2011, Ms. Hankerson left McMillan approximately 30 minutes early, at 3:20 p.m., without prior approval and without signing-out. Additionally, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, April 1, 2011, Ms. Hankerson left McMillan at 12:30 p.m., without prior approval and without signing-out. Also, she failed to attend her classes at Periods 4 and 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On April 4, 2011, Ms. Hankerson left McMillan at 10:47 a.m., without prior approval and without signing-out. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, April 5, 2011, Ms. Hankerson arrived at McMillan a little over one-half hour late, at 9:03 a.m. Ms. Thomas met with Ms. Hankerson, regarding the attendance, and informed her (Ms. Hankerson's) that the early departures from McMillan would be reported as leave without pay, unauthorized. Further, Ms. Thomas provided Ms. Hankerson with notification of a CFR to be held on April 8, 2011. The next day, April 6, 2011, Ms. Hankerson did not report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on April 7, 2011, and, as a result, Ms. Thomas hired a substitute for April 7, 2011. The CFR on April 8, 2011, was scheduled for 3:00 p.m. Even though Ms. Hankerson had reported to McMillan for the workday, she did not appear at the CFR at the scheduled time. When an "all call" was made over the public address system for her at 3:20 p.m., Ms. Hankerson responded and was informed that should report to the CFR. However, she did not arrive at the CFR until 3:49 p.m. and informed Ms. Thomas, among other things, that the CFR should proceed without her (Ms. Hankerson) because her (Ms. Hankerson's) children were home alone and she (Ms. Hankerson) was leaving at 3:50 p.m., the end of the workday. Ms. Hankerson left, and the CFR proceeded without her. The attendees at the CFR included Ms. Thomas; the assistant principal; and the UTD Representative. The purpose of the CFR was to address Ms. Hankerson's insubordination regarding previously issued attendance directives, and her noncompliance to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13- 4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; and to review her record and future employment status with the School Board. A Summary of the CFR was prepared by Ms. Thomas on April 18, 2011. The Summary for the CFR included a delineation of Ms. Hankerson's absences, reflecting that, since the issuance of the Absence of Worksite Directive on March 7, 2011, through April 15, 2011, Ms. Hankerson had accumulated one-half day absence of leave without pay, authorized; 10.5 days absence of leave without pay, unauthorized; one temporary duty day; and one personal day.4 Furthermore, the Summary for the CFR reflected that, as of April 15, 2011, for the 2010-2011 school year, Ms. Hankerson had accumulated a total of 46 absences.5 The Summary for the CFR contained directives to Ms. Hankerson. The directives included: adherence to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13-4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; to report to work and depart from work daily at the scheduled hours; be in regular attendance at the worksite and on time; adhere to attendance directives previously issued; communicate any intent to be absent directly to the principal and by calling the ARS; the reporting of future absences will be leave without pay, unauthorized, unless documentation showing qualification under the Family Medical Leave Act (FMLA) or other leave of absence is provided; and for imminent absences, leave must be requested and procedures for School Board approved leave implemented, and the FMLA or Americans with Disabilities Act (ADA) requirements, if applicable, must be complied with. Ms. Hankerson was advised that failure to comply with the directives would lead to further review for disciplinary action and would be considered gross insubordination. Further, the Summary for the CFR advised Ms. Hankerson that she would be issued a letter of reprimand. Ms. Hankerson acknowledged receipt of the Summary for the CFR on April 18, 2011, by signing the Summary for the CFR. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas at the CFR and the Summary for the CFR were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. On April 18, 2011, Ms. Thomas issued Ms. Hankerson a Reprimand. The Reprimand was based on Ms. Hankerson's failure to comply with the previous directive issued to Ms. Hankerson regarding attendance and professional responsibilities. Additionally, the Reprimand advised Ms. Hankerson that any recurrence of the noncompliance might lead to disciplinary action and would be considered gross insubordination. Ms. Hankerson acknowledged receipt of the Reprimand on April 18, 2011, by signing the Reprimand. Ms. Hankerson failed to comply with the directives issued in the Summary for the CFR. On the same day of the Reprimand, April 18, 2011, Ms. Hankerson was absent one-half day, reported as leave without pay, unauthorized. Two days thereafter, she was absent for three consecutive days, April 20 through 22, 2011, each day being reported as leave without pay, unauthorized. Having worked the next school day, April 25, 2011, Ms. Hankerson was absent one-half day on April 26, 2011, reported as leave without pay, unauthorized; absent one-half day on April 27, 2011, reported as leave without pay, unauthorized; and absent one day on April 28, 2011, reported as leave without pay, unauthorized. Additionally, she was tardy for work on April 27, 2011. From April 18 through 28, 2011, she had a total of five and one-half absences. Due to these recent absences and tardiness, on April 28, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences and tardiness were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be absent, tardy, and insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on April 18, 2011, by signing it. The evidence demonstrates that the re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson's absences, tardiness, and early departures continued. On May 2 through 4, 2011, she was absent one day each date; May 5, 6, and 13, 2011, she was absent one- half day each date; and May 16, 2011, she was absent one day; totaling five and one-half days of absences, which were reported as leave without pay, unauthorized. Also, Ms. Hankerson was tardy seven times, on May 5, 6, 10 through 13, and 17, 2011, which were unauthorized. Additionally, she departed McMillan early two times, on May 6 and 13, 2011, which were unauthorized. Due to these recent absences, tardiness, and early departures, on May 17, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences, tardiness, and early departures were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on May 17, 2011, by signing it. The evidence demonstrates that the second re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. At the time of the Continued Failure to Comply with Re-Issued Directives memorandum on May 17, 2011, Ms. Hankerson had accumulated 57 absences. Additionally, she had multiple instances of tardiness and early departures. A CFR was held by OPS. Persons in attendance included the Director of OPS; Ms. Thomas; and Ms. Hankerson and her UTD Representative. At the CFR, Ms. Hankerson was provided an opportunity to respond. OPS recommended termination of Ms. Hankerson's employment for gross insubordination and violation of School Board's rules concerning Responsibilities and Duties, Code of Ethics, and Absences and Leaves. After the CFR at OPS, Ms. Hankerson reported for work at McMillan only on June 7, 2011, and June 9, 2011, which was the last day of the 2010-2011 school year. On June 9, 2011, she arrived late, signed-in, and left McMillan shortly thereafter, not remaining at work the entire time set-aside for the last day. From the time that she began at McMillan until the time of the recommendation by OPS, Ms. Hankerson had accumulated 57 absences during the 2010-2011 school year. Of the 57 absences, 18.5 absences occurred during the time that she was assigned to the Region office, not in the classroom. Ms. Hankerson's absences and tardiness negatively impacted the role of Ms. Thomas as the principal and leader of McMillan. Often times, due to Ms. Hankerson's tardiness, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until Ms. Hankerson arrived. Additionally, when Ms. Thomas had no notice that Ms. Hankerson would be absent, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class until a substitute, who had to contacted at the last minute because of no prior notice, arrived; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until the substitute arrived. As a result of the recommendation of OPS, the Superintendent recommended to the School Board the suspension, without pay, and termination of the employment of Ms. Hankerson. At its regularly scheduled meeting held on June 15, 2011, the School Board took action to suspend, without pay, Ms. Hankerson and initiate dismissal proceedings against her from all employment for just cause, including, but not limited to: misconduct in office; gross insubordination; attendance-to-date; and violation of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, 6Gx13-4A-1.213, Code of Ethics, and 6Gx13-4E-1.01, Absences and Leaves. Ms. Hankerson does not refute the absences, the tardiness, or the early departures. For the instances of tardiness, Ms. Hankerson testified at hearing that she would call-in before 8:30 a.m. and state that she was en-route and would be late. The School Board did not refute her assertion. Despite her calling-in, Ms. Hankerson admitted that Ms. Thomas did not tolerate her (Ms. Hankerson's) tardiness and took the action previously mentioned. Ms. Hankerson's testimony is found to be credible. On March 2, 2011, Ms. Hankerson informed Ms. Thomas that arriving late for work at McMillan was unavoidable because she (Ms. Hankerson) took her (Ms. Hankerson's) children to school and she (Ms. Hankerson) lived so far away from McMillan. Additionally, around April 2011, Ms. Hankerson informed Ms. Thomas that she (Ms. Hankerson) was going through a divorce. At hearing, Ms. Hankerson testified that, during March, April, May, and June 2011, she was having marital problems and living sometimes at home and sometimes with her mother in Fort Lauderdale, Florida, which was approximately 28 miles from McMillan. Ms. Hankerson took her children to school, but, when she lived with her mother, she would not leave them at their school in the mornings alone if it was dark. She testified further that she was being investigated by the Department of Children and Families regarding allegations of neglect and being an unfit mother. Additionally, she testified that she was having financial problems. Ms. Hankerson's testimony is found to be credible. However, she did not provide these details to Ms. Thomas. Further, Ms. Hankerson testified that, for April, May, and June 2011, she considered taking leave using the FMLA and contacted her UTD Representative. Ms. Hankerson decided not to take leave using the FMLA. The UTD Representative did not testify at the hearing. Ms. Hankerson's testimony is found to be credible. Again, Ms. Hankerson did not provide this detail to Ms. Thomas. Ms. Hankerson testified that the circumstances that she indicated caused her absences, tardiness, and early departures have been resolved. Her testimony is found to be credible. Before working at McMillan on September 20, 2010, Ms. Hankerson had no prior disciplinary action taken against her by the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Lavonda Hankerson, without pay, for the 2011-2012 school term and under other terms and conditions deemed appropriate by the Miami-Dade County School Board. DONE AND ENTERED this 7th day of November, 2011, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 7th day of November, 2011.
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 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 11th day of August, 1995.
The Issue The issue is whether Petitioner may lawfully dismiss Respondent from employment for excessive absenteeism.
Findings Of Fact Petitioner initially employed Respondent as a part-time bus aide on December 8, 1987, and subsequently employed him as a full-time bus aide on September 14, 1989. At all material times, Respondent has been covered by the 2006-2009 Successor Contract between Petitioner and the American Federation of State, County, and Municipal Employees, Local 1184, whose term is July 1, 2006, through June 30, 2009 (Contract). The job of the bus aide is to assist special-needs students in boarding and exiting the bus. When an aide fails to notify his supervisor of his absence from work, Petitioner tries to find a substitute bus aide, but often cannot, so the bus driver must assist these students, as well as perform his usual duties of driving the bus. Respondent has had attendance problems for some time prior to the period in question. For example, he incurred 26 days of unauthorized absences from April 2004 through February 2005. These absences resulted in the issuance to Respondent of a memorandum, dated April 13, 2005, warning him that unauthorized absences justified dismissal. The subject period of absenteeism began on November 21, 2006, when Respondent did not appear at work and did not contact his supervisor. Petitioner documented the absence with three hours of sick leave and three hours of unauthorized leave. On November 22, which was the day before Thanksgiving, Respondent did not appear, and Petitioner documented the absence with six hours of unauthorized leave. The following Monday and Tuesday, November 27 and 28, Respondent was again absent without leave. He worked on November 29 and 30, but missed that Friday, December 1, again without leave. Respondent was absent without leave for four days of the next week, all five days of the following week, and all four days of the week after that, at which point winter break started. After winter break, Respondent was absent without leave for the next nine weeks in their entirety. After missing the first two days of the tenth consecutive week, Respondent finally reappeared at work on March 21, 2007. In the meantime, on January 26, 2007, Petitioner's District Director, Office of Professional Standards, wrote Respondent and informed him that Petitioner had deemed him to have abandoned his position due to his extensive absences. The letter gave Respondent ten days to request a review and warned that, if he did not request a review, the School Board would take final action terminating Respondent. On February 21, 2007, Petitioner's District Director, Office of Professional Standards, wrote Respondent and informed him that he would need a clearance to return to work. On March 12, 2007, Petitioner conducted a conference for the record to address Respondent's absenteeism. During the conference, Respondent acknowledged 104.5 absences, including 90.5 unauthorized absences, from March 1, 2006, through February 28, 2007. Respondent's excuses were two deaths in his family and an eviction. After the March 12 conference for the record, Petitioner provided Respondent with a clearance to return to work, even though the matter had not yet been finally resolved. Respondent worked as scheduled for a few days prior to spring break and two days after spring break, following which he was absent without leave for the remaining three days of the first week after spring break and the next two weeks in their entirety. In granting the clearance to return to work, Petitioner did not relieve Respondent from liability for the absences, detailed above, that started on November 21, 2006. Upon Respondent's failure to report to work as scheduled after spring break, Petitioner conducted a duly noticed meeting on May 22, 2007, to discuss pending School Board action to dismiss Respondent. On July 2, 2007, Petitioner advised Respondent that, on July 11, 2007, the School Board would receive the Superintendent's recommendation to dismiss him from employment due to absenteeism. On July 11, the School Board accepted the Superintendent's recommendation, suspended Respondent, and initiated dismissal proceedings against him. Respondent testified at the final hearing, but failed to offer any plausible explanation for the absences in late 2006 and early 2007 that resulted in this case. The deaths in his family in November 2006 and December 2006 were of the grandmother of his brother's wife and the sister of his brother's wife. The eviction occurred in early November 2006. Respondent's dog died from cancer in January 2007. However, Respondent never offered any explanation for why he never even called his supervisor during this extended period of absenteeism. As Respondent testified, the same supervisor had been understanding and supportive when Respondent had required hospitalization in early 2006, and there was no reason to assume that he would not again do what he could reasonably to accommodate Respondent's difficulties. Article XI, Section 4, of the Contract provides: An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination.
Recommendation It is RECOMMENDED that the School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 23rd day of January, 2008, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 23rd day of January, 2008. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Michael Spaulding 105 Northwest 58th Terrace Miami, Florida 33127
The Issue The issues to be resolved in this proceeding concerns whether the Petitioner should be deemed to have abandoned his career service employment position with the Department of Natural Resources and, therefore, whether the Department of Administration should issue a final order to that effect. The parties presented Proposed Findings of Fact and Conclusions of Law which are dealt with in this Recommended Order and, additionally, are addressed in the Appendix attached hereto and incorporated by reference herein.
Findings Of Fact For approximately two years and ten months the Petitioner, Jack W. Simmons was employed by the Department of Natural Resources at the Maclay Gardens State Park in Tallahassee, Florida. On January 7, 8, 9, 10 and 11, 1985, Simmons was scheduled to work at his position at Maclay Gardens. Simmons did not appear for work on those days and did not seek prior authorization to be absent from work on those days. Simmons did not notify the Department of Natural Resources of his absence or the reasons there for on those days. Jack Simmons had been absent in the past for various reasons including a severe back problem associated with severe back pain. Simmons was largely immobilized during the week of January 7, 1985 and was unable to report to work because of severe back pain. He was unable to stand erect and unable to walk without great difficulty. As established by Joyce Jones, his neighbor, he was able to very slowly and painfully go to the door to let her in his apartment while dressed in a housecoat. He lived on the second floor in an apartment at the top of approximately twenty stairs. He was unable to cook for himself or to dress himself to the extent that he could not put on shoes and rested primarily in a reclining chair. Mr. Simmons at the time in question did not have a telephone and testified that he felt the nearest telephone was approximately three quarters of a mile away. He did not inquire of any of his neighbors as to whether they had a telephone and could report the reason for his absence to his employer, however. His neighbor, Joyce Jones, who assisted in feeding him and caring for him during this week when he was suffering severe back pain, established that she had asked him on January 9th whether he wished her to call his employer to report his absence. He declined her offer, intimating that he would call his employer later himself. Neither Simmons nor anyone else ever called his employer to report his absence or the reasons for his absence. There is no doubt that Mr. Simmons was severely incapacitated on the day in question and required the assistance of Ms. Jones to clean his house, do his laundry, cook for him and purchase medicine for his Lack pain. On one occasion she observed him crawling on the floor in an effort to get back in his reclining chair and on another occasion she observed his inability to get out of the bathtub. There is no dispute concerning the immobilizing nature of Mr. Simmons' illness. Mr. Simmons did not have a telephone and, although his employer previously suggested that he get a telephone, his employer did not require that he do so, merely requiring that he inform them of any absences and the reason therefor. Mr. Simmons maintained that on January 9th, the third day of Mr. Simmons' unreported absence, he was on his way to a telephone to call his employer and report his absence and its reasons when Major Johnston, his employer and supervisor, stopped outside his home and verbally informed him he was fired. That testimony is belied by that of Major Johnston, however, who established that he went to Simmons' house January 11th, a Friday, and not January 9th, a Wednesday. Major Johnston's testimony is accepted over that of Mr. Simmons and Joyce Jones, neither of whom could remember with certainty whether it was January 9th or not when this episode purportedly occurred and because, throughout his testimony, Mr. Simmons candidly admitted he was not able to recall dates and times very well. Major Johnston's version of his whereabouts on January 9th was corroborated by his co-workers, who, together with Johnston, established that Johnston was at a meeting all day with his employers and supervisors on January 9th and only left that meeting during that entire work day to attend a lunch gathering with the same personnel. They immediately returned together from the restaurant to the remainder of the meeting. Indeed, Major Johnston established that he was at a park district manager's meeting all day on both January 9th and 10th, except for the lunch breaks when he lunched in the company of other co-workers who were also in attendance at the meeting, some of whom testified in corroboration of his testimony. Accordingly, Major Johnston's version of the events in question on January 9th and 11th, is accepted over that of Mr. Simmons and Ms. Jones. Major Johnston had intended to go on annual leave from his position on January 11th, but because he was directed by his superior to visit Simmons for the purpose of terminating him from employment, he worked that morning and only took annual leave on that afternoon. His testimony as to his whereabouts on January 9th was corroborated by C. W. Hartsfield, Chief of the Bureau of Park Management, by Joseph Knoll, Assistant Chief, and by James A. Cook, a former deputy director of park operations, all of whom were in Johnston's presence all that day. Joseph Knoll discussed Simmons' unauthorized absence situation with Major Johnston on January 9th and 10th and on January 10th instructed Major Johnston to wait until the next day, Friday, January 11th, and on that day go to Simmons' home to make sure he was not hospitalized before the Department of Natural Resources took any action against Mr. Simmons' employment status. Late on the morning of January 11th, Major Johnston reported to Joseph Knoll that he had visited Mr. Simmons that morning and had notified him of his termination from employment that morning, January 11th. Mr. Simmons was then removed from the payroll and other benefit entitlements effective at 5:00 P.M., January 9th, the third day of the unauthorized absence in question. In the face of the testimony of Major Johnston concerning the termination on January 11th, Mr. Simmons opined only that "I believe it was January the 9th", or words to that effect. His neighbor who cared for him during his illness, Joyce Jones, simply could not remember on what date Simmons told her he had been terminated. Major Johnston had earlier signed and delivered to Simmons a letter warning him that if he had one more unauthorized absence it could result in the loss of his job. During 1984 Mr. Simmons had received a written reprimand for unauthorized absence and tardiness and for similar infractions later in that year had received a three-day suspension from employment. It was at this point that Major Johnston signed and gave him the letter warning him that any more unauthorized absences could result in the loss of his employment. Simmons maintained that he was totally bedridden, without telephone and that he lived at the corner of Park and Franklin Streets in Tallahassee, approximately three-quarters of a mile from the nearest telephone. His own witness, however, his neighbor, Joyce Jones, established that she visited him and he was able to painfully and laboriously come to the door and let her in and tell her of his back problems. On those and succeeding days she cared for and cooked, fetched him medicine and the like and Simmons never asked her to call his employer on his behalf although she offered to call. Simmons had other neighbors, but never asked any of them to call for him to report his absence, either. Although Mr. Simmons was undisputedly gravely ill and unable to walk any distance to use a telephone, there is no doubt that he had an opportunity to report his absence and its reasons to his employer through neighbors, one of whom had even offered to do so, but he had declined that opportunity after being previously warned on two occasions about the importance of reporting his absence to his employer. The Petitioner was given written notice of Respondent's initial determination that he had abandoned his position for in excess of three days and notice of his right to a hearing to contest that determination, as shown by Respondent's Exhibit One, in evidence.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a final Order be entered by the Department of Administration finding that Jack W. Simmons abandoned his position of employment for three consecutive unauthorized days of absence, from January 7th through January 9, 1985, as envisioned by Rule 22A-7.10(2), Florida Administrative Code. DONE and ORDERED this 27th day of December, 1985, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer ~ Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkwav Tallahassee, Florida 323C1 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1985. COPIES FURNISHED: Steven A. Been, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulvard Tallahassee, Florida 32303 Richard L. Kopel, Esq. Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paolo G. Annino, Esq. Legal Services of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida 32303 Kevin Crowley, Esq. General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32302 APPENDIX - CASE NO. 85-0740 Rulings on Petitioner's Proposed Findings or Fact: The Petitioner's Proposed Findings of Fact are in unnumbered paragraphs and We ruled upon by paragraphs in the sequence they appear in the Petitioner's Proposed Findings of Fact and Conclusions of Law. In large part the Proposed Findings of Fact consist of discussion of testimony and argument of counsel, but to the extent they assert Proposed Findings of Fact they are ruled upon as follows: Accepted.| Accepted in part but rejected inasmuch as this paragraph depicts that the nearest telephone was three-quarters of a mile away, which Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record. Accepted to the extent that it depicts Simmons intent to contact his employer, but rejected insofar as it has already been found that Simmons failed to actually contact his employer. Accepted, but this paragraph of Proposed Findings is subordinate to and unnecessary to the Findings of Fact reached in the Recommended Order on the malarial issues presented and is not dispositive of the material issues of fact raised in this case. Accepted in that there is no dispute as to the severity of Jack Simmons' illness, but this Proposed Finding of Fact concerning the severe nature and immobilizing nature of his illness is subordinate to, and unnecessary to the Findings of Fact reached in the Recommended Order concerning Simmons' failure to take advantage of opportunities to notify his employer of the reasons for his absence and is therefore not dispositive of the material issues of fact presented in this proceeding. This Finding is rejected to the extent that it asserts that Simmons had no opportunity to contact his employer which Proposed Finding does not comport with the competent, substantial, credible evidence of record, although it is true that it is undisputed that Simmons lacked a telephone and his neighbor, Joyce Jones, lacked a telephone. This Proposed Finding of Fact is rejected a., not in accordance with the competent, substantial, credible evidence of record in that it has been found that Simmons did not attempt to contact his employer, although it is true that his neighbor, Joyce Jones, offered to call his employer and at that time. Simmons rejected the offer stating that he intended to call the employer himself. He simply never did so when he had the opportunity. This Proposed Finding is accepted as in accordance with the competent, substantial credible evidence of record, but is subordinate to and immaterial to the Findings of Fact made disposing the material issues presented. The Department of Natural Resources did indeed not require him to obtain a telephone, but its procedure for reporting lateness or absence did envision the use of a telephone and his superiors were aware that he did not have a telephone, however, this Proposed Finding is subordinate to the Finding made to the effect that although Simmons had no telephone he did not avail himself of ample opportunity to use a neighbor's phone in his own apartment building or have Ms. Jones phone his employer for him, which she had offered to do and which he refused. This Finding is rejected as not in accordance with the competent, substantial, credible evidence of record in that the testimony and evidence of record in the above Findings of Fact made in the Recommended Order show that Simmons had the ability to contact his employer and failed to avail himself of it. This Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record. This Proposed Finding of Fact is rejected as not in accordance with the competent, substantial, credible evidence of record to the extent that it indicates that Simmons was fired on January 9th instead of January 11th.I Accepted. Rejected as not in accordance with the competent, substantial, credible evidence of record. Rejected as not in accordance with the competent, substantial, credible evidence of record. This Finding is accepted to the extent that it depicts that Simmons was removed from all employee benefits including payroll effective 5:00 P.M. January 9, 1985, however that is subordinate to and not dispositive of the issue resolved in the Finding of Fact in the Recommended Order which establishes that based upon the competent, substantial, credible testimony and evidence of record, Simmons was indeed terminated by his employer on January 11, 1985, not January 9th. Rejected as not in accordance with the competent, substantial, credible evidence of record. Rejected as not in accordance with the competent, substantial, credible evidence of record. Accepted to the extent that the Notice of Termination indicated that Simmons was on unauthorized leave from January 2nd through January 6, 1985. The Respondent has admitted that is an error, but is an immaterial error since the actual disputed dates in question begin Monday, January 7, 1985. The mere fact that the termination notice contained more depicted dates of unexcused absences than were admittedly the case is an immaterial error and this last Proposed Finding of Fact is subordinate to and immaterial to disposition of the material issues of fact presented. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted. (It should be noted that the Respondent has not numbered all of its Proposed Findings of Fact paragraphs. The Hearing Officer in making 8 specific Rulings on Proposed Findings of Fact of Respondent has numbered those paragraphs 1 through 8 in making these specific Rulings).
The Issue The issue presented for decision in these consolidated cases is whether Respondent’s employment with the Polk County School Board, first as an assistant principal, then as a teacher, should be terminated, as recommended by Glenn Reynolds, Superintendent of Schools, pursuant to Section 231.36(6), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is an African-American male who attended Florida A&M University and Jacksonville State, earning masters degrees in physical education and educational leadership. Respondent served ten years in the military prior to entering the field of education. Respondent has been employed by the School Board since 1988. From 1988 to 1993, he was a teacher. In 1993, Respondent was promoted to the position of Assistant Principal for Discipline at Boone Middle School ("Boone"). He served in that position until July 23, 1997. Eileen Killebrew was the principal at Boone and was Respondent’s direct supervisor throughout his tenure at Boone. Ms. Killebrew testified that Respondent did a "great job" during his first three years at Boone. Respondent testified that he believed he had a good working relationship with Ms. Killebrew until April 25, 1997, when the events that are the subject of this proceeding commenced. Respondent testified that Ms. Killebrew repeatedly told him he was the best assistant principal she had ever seen and expressed a desire to continue working with Respondent throughout her career. Ms. Killebrew testified that Respondent’s job performance began to suffer during the 1996-1997 school year. He seemed preoccupied and less focused than in prior years. He spent more time on personal telephone calls. Parents complained that they felt Respondent was not listening to their children in his role as Assistant Principal for Discipline. Ms. Killebrew stated that she attributed these problems to difficulties Respondent was having in building a new house and that she referred him to a lawyer who handled such matters. No documentation was produced to corroborate Ms. Killebrew’s testimony regarding Respondent’s performance in the 1996-1997 school year. She did not set forth her concerns in any evaluation or other contemporaneous notation. She testified that parents and teachers had come to her with concerns, but she did not name them and Petitioner did not produce any of them as witnesses. None of the other witnesses in this proceeding testified that they had noted any problems with Respondent’s performance during this period, or that Ms. Killebrew had mentioned her concerns to them prior to April 25, 1997. Respondent testified that throughout the 1996-1997 school year, Ms. Killebrew had been confiding in him regarding her ambition to move up to a higher administrative position in the school district. Ms. Killebrew told Respondent that she had applied for two area superintendent positions, and later that she was a finalist for one of those positions. Ms. Killebrew told Respondent on several occasions that she was convinced that if a woman were to get the job, it would be her. Knowing that Respondent was also ambitious of improving his position, Ms. Killebrew assured him that if she got the area superintendent job, she would recommend him for the position as principal of Boone. At some point in April 1997, Ms. Killebrew learned she would not get the area superintendent job. Shortly thereafter, she learned that she was being reassigned from Boone to Crystal Lake Middle School. Respondent testified that on the afternoon of her reassignment, Ms. Killebrew came into his office. She had tears in her eyes and clearly had been weeping. She told Respondent that she was going home, leaving him and Nancy Woods, the other assistant principal at Boone, in charge of the school for the remainder of the afternoon. The following morning, Ms. Killebrew again came to Respondent’s office. Respondent testified that she began telling him about the reassignment and broke down crying. Respondent testified that Ms. Killebrew was upset partially because she believed that Crystal Lake was the worst school in the district, with students from the worst families in the county, "white trash" and "rednecks." She asked Respondent to transfer with her to continue as her Assistant Principal of Discipline. After thinking about it for a day, Respondent declined Ms. Killebrew’s request to join her at Crystal Lake. He told her that he was in the pool for appointment to a principal’s position, and as one of only two African-American males in the pool, he believed his chances were good. Respondent also had been advised that his chances of getting a principal’s job would be enhanced if he obtained administrative experience outside his current area of discipline. Thus, he told Ms. Killebrew that if he were to spend another year as an assistant principal, he would attempt to become Assistant Principal for Curriculum at Boone. Frances Lee, a teacher at Boone for 32 years, testified that Respondent was a very fair, congenial person. She stated that he was also a very religious person and that she often talked about the Bible with him. Bill Podoski, the guidance counselor at Boone, testified that in his experience, Respondent had always behaved professionally. Raymond Dean Hunt, a teacher at Boone during the relevant time period, testified that he was always impressed with the professional conduct of Respondent. He stated that they had disagreements over the years, and "I’m not one to back down or be quiet . . . but I’ve been impressed with Mr. Mickens, the way he handled me, if you will, on these occasions." He testified that on these occasions, Respondent’s manner was assertive but professional. Rae Fields, a parent and daily volunteer at Boone during the relevant period, testified that Respondent was a very even-tempered person. She had never heard him raise his voice, and noted that he had to use a megaphone in the hallways to make himself heard. She testified that the students respected Respondent and that he could break up school yard fights by simply ordering the combatants to stop. She testified that children would come to him with their problems and that often in the morning there would be a line of students waiting outside his door to talk with him. She told her son that if he was ever in trouble, he should go straight to Respondent. Ms. Fields testified that the idea of Respondent yelling or even raising his voice at anyone would be "totally out of character." She added that she had seen parents "all over his desk, yelling in his face, carrying on," while Respondent sat quietly and listened. Irene Roberts, the PTA President at Boone and a daily volunteer at the school, testified that Respondent was always a gentleman, very polite, and very fair. She took her own child to Respondent, "which I would never have done if I had not felt that Mr. Mickens was fair in his dealings with all children, and that he would help my son and deal with him fairly." Ms. Roberts testified that Respondent treated all children alike and with respect. He never screamed or yelled at the students and was never threatening or rude. Ms. Roberts testified that Respondent was equally adept at dealing with parents: I was amazed, very often, to see this man never lose control. I saw parents come in who were so rude and cruel when they thought the punishment that was meted out to their child wasn’t fair, and I heard him called names and everything, and he never ever lost his temper. He always was polite to them and a gentleman. Ms. Fields and Ms. Roberts were less complimentary toward Ms. Killebrew. Ms. Fields testified that she got to know Ms. Killebrew fairly well as a volunteer at Boone, where she worked for several hours every school day. Ms. Fields characterized Ms. Killebrew as a "bully" who "liked to intimidate the parents. She liked to intimidate the students." More diplomatically, Ms. Roberts described Ms. Killebrew as "feisty." "It was her way or no way. She just didn’t . . . give very easily." When asked if Ms. Killebrew was open-minded, Ms. Roberts replied, "That all depended on what she wanted or what the occasion was." During Ms. Killebrew’s tenure at Boone, there was a certain amount of racial tension at the school. Much of the tension focused on the School Resource Officer ("SRO"), Ed Nixon. The SRO is a local police officer or sheriff’s deputy assigned to each middle school and high school in Polk County. Ms. Roberts, who is white, testified about Officer Nixon as follows: There’s no nice way to say this. I think he was a little bit biased, bigoted. He kind of was very heavy handed with Hispanic kids and sometimes the black children. He just . . . seemed to be a little heavier and hotter on them . . . He was kind of, he was rough with kids and he was especially rough with the Hispanics. Ms. Fields, who is African-American, agreed with Ms. Roberts’ assessment. She testified that Officer Nixon was different with different children, and not friendly with minority children. She testified that "If you were doing something, and you were black or Hispanic, you more than likely got drug [sic] into his office or into the main office for some type of action to be taken." She testified that Officer Nixon was more likely to let white children walk away with a scolding, unless the offense was too severe to overlook. Ms. Fields testified that she was also disturbed that Officer Nixon was actively involved in disciplining children for typical school yard infractions, when she understood the SRO’s job to be deterring illegal activity. Ms. Fields testified that she thought the school, not the SRO, was responsible for primary discipline of children, and she brought her concerns to the attention of Ms. Killebrew. Ms. Fields testified that Ms. Killebrew at first tried to mollify her with a recitation of Officer Nixon’s personal and professional virtues. When Ms. Fields persisted, Ms. Killebrew told Ms. Fields that she could take her child out of the school if she was unhappy with Officer Nixon. Ms. Fields testified that this was a typical reaction by Ms. Killebrew to parents’ expressions of concern. Ms. Killebrew testified that she could not recall whether Officer Nixon was contributing to problems on the Boone campus and that nothing to that effect had ever been reported to her. This testimony is not credible. Both Ms. Roberts and Ms. Fields testified that Officer Nixon tended to harass verbally certain students. Ms. Fields noted this to be especially the case with certain Hispanic children whom Officer Nixon characterized as "known gang members." Ms. Fields testified that the cause of much of the aforementioned parental "yelling and screaming" was Officer Nixon. Parents would come in to complain about Officer Nixon’s treatment of their children, and Mr. Mickens would have to deal with the problem. Respondent testified as to Officer Nixon’s treatment of one particular Hispanic student, J.G. Respondent stated that J.G. had a discipline record that included some time in an alternative school, and that Officer Nixon claimed to have information that J.G. was a "bona fide gang member." Respondent testified that Officer Nixon monitored J.G.’s activity constantly, and that he was always confrontational in his dealings with J.G. Respondent added: And I have to say, I got numerous complaints from Hispanic kids, from black kids . . . it was on a regular basis about how he handled them . . . . [J.G.] had complained to me himself about, you know, Officer Nixon, the way he said things, accusations and things, you know. If there may be some writing on the bathroom wall, or there may be a gang sign on a table, he was always . . . one of the individuals that Officer Nixon would automatically allege or assume had performed the misconduct, you know, without really any evidence. [J.G.] always complained that . . . Officer Nixon always came up and would be questioning him and breaking up their groups, you know, this type thing . . . "He’s not making these other people spread out. Why are we supposed to be gang members, and none of the other people are being accused . . ." And there was always comments about some of the kids’ parents being drug dealers or being, you know, gang members. The morning of Friday, April 25, 1997, was somber on the Boone campus. Ms. Rubio, an aide for special education students at Boone, had died suddenly. Ms. Rubio very well-liked by students and teachers and everyone on the campus was saddened at her death. April 25, 1997, was the date of her funeral. The funeral was scheduled for 11 a.m. at a local church. Respondent came to the campus early that morning. Ms. Killebrew was not on the campus that day. She testified that she was absent because she was at another middle school participating in preparations for a presentation to the School Board. However, she later testified that she remembered attending Ms. Rubio’s funeral. It is undisputed that Ms. Killebrew was not on the Boone campus that morning. Because of Ms. Killebrew’s absence, the two assistant principals met and decided that only one of them should attend the funeral. They decided that Respondent would go to the funeral and that Ms. Woods would stay in charge of the campus. In chatting with Officer Nixon, Respondent mentioned that he was going to the funeral. At that, Officer Nixon "just started crying. He told me that Ms. Killebrew told him that he could not go. He said that he had wanted to lead the procession, you know. He asked me to give his condolences, you know, to the family. And he . . . was just crying about it." Respondent went to the funeral, and returned to the Boone campus around noon. He headed for the patio outside the cafeteria to prepare for monitoring the eighth grade lunch hour. As usual, he carried his megaphone and a portable radio with which he communicated with Officer Nixon. Respondent testified that, as he entered the hallway adjacent to the cafeteria, he saw a student who, upon seeing Respondent, turned on his heels and headed in the other direction toward his class. At about the same time, Officer Nixon radioed Respondent. Respondent testified that he thought Officer Nixon’s message related to the student whom Respondent had just seen heading toward class. Respondent replied to Officer Nixon that all was well, the problem was taken care of. Respondent testified that he later found out that he had misunderstood Officer Nixon’s message. "I learned later on that he had called me to come over to the cafeteria, and I didn’t come. But I did not understand that that was the communication." Respondent testified that he was standing on the patio monitoring the eighth graders going into the cafeteria when Officer Nixon approached him from behind. Officer Nixon asked Respondent if he had disciplined J.G. for running in the bus zone a few days earlier. Respondent answered that he had forgotten. Respondent testified that Officer Nixon then said, "I’m going to handcuff him, slam dunk him, and haul him downtown." Respondent testified that this statement "got my attention," and that he told Officer Nixon to write up a referral on J.G. if he did something wrong. Respondent testified that Officer Nixon was upset, and continued to mutter, to no one in particular, "I’m going to haul him downtown. I’m going to haul his butt off campus." Respondent testified that, up to this point, he had an amicable working relationship with Officer Nixon. They had always been able to talk about Respondent’s concerns with Officer Nixon’s performance. "I treated him with the utmost courtesy, and vice versa. He listened to me. Several things he was doing that I had concerns about, he did proper research and he changed from doing. And we were making progress." Respondent testified that his goal was always to avoid "getting physical" with the children. Two years earlier, Respondent had seen a child handcuffed, thrown to the ground and manhandled, and had vowed that he was going to do everything possible to prevent that from happening again. Thus, when he heard Officer Nixon talking about "slam dunking" J.G., Respondent said, "I don’t want you picking on the kid." With that, Officer Nixon stepped away from Respondent, pointed his finger, and said, "You’re not my boss. You can’t tell me what to do." Respondent testified that he did not respond because there were still children in the area filing into the cafeteria. Officer Nixon then walked away toward the main office. Respondent waited for the children to finish filing into the cafeteria, which he estimated took a couple of minutes. He then asked another teacher to take over his monitoring duties and went to the office. Upon reaching the office, Respondent told Officer Nixon that they needed to speak. Officer Nixon shrugged dismissively and walked away from Respondent. Respondent again stated that he needed to speak to Officer Nixon and that if Officer Nixon would not speak to him, then Officer Nixon should leave the campus. Respondent testified that they were standing at the door of the office and that there were no threats of violence or belligerence of any kind. Only three other people were in the office area at this time: Bill Podoski and Raymond Dean Hunt, teachers who were in Mr. Hunt’s adjacent guidance office when Respondent and Officer Nixon entered; and the guidance secretary. Mr. Podoski heard the altercation from Mr. Hunt’s office and testified that he did not hear Respondent raise his voice. Mr. Hunt came out of his office and saw the two men. He testified that Officer Nixon was speaking loudly and belligerently, saying something to the effect that Respondent was not his boss and could not tell him what to do. Mr. Hunt stated that Respondent was speaking assertively but not as loudly as Officer Nixon. He testified that Respondent’s tone of voice was no louder than he had heard it in previous disagreements Mr. Hunt had had with Respondent, "assertive but professional." Respondent and Officer Nixon proceeded out the office door to a walkway outside the building. Respondent again told Officer Nixon that he should leave the campus. Officer Nixon responded that he was not going to argue with Respondent in front of students, then walked away. Respondent testified that there were a few students sitting on a bench along the walkway. He testified that he did not believe the bulk of the students sitting on the patio could hear his conversation with Officer Nixon due to the distance and to the fact that the patio was noisy with typical lunchtime activity. Respondent testified that at this point he was content to let Officer Nixon walk away, as he had duties to resume. He did not see Officer Nixon again that day. Respondent testified that Ms. Woods, the other assistant principal, came into his office some time later that afternoon. Ms. Woods told Respondent that she had spoken with Officer Nixon, who told her he was scared that Respondent was calling his boss about the incident. Ms. Woods executed a sworn statement on Monday, April 28, 1997. Her statement reads, in relevant part: I was at eighth grade lunch and Officer Nixon came over to where I was. He was very upset. He said that Mr. Mickens had yelled at him in front of students and told him to get off campus. I tried to calm him down. He went on out the back door of the cafeteria. I walked over to the door with him, still trying to calm him down. He said it wasn’t right for Mr. Mickens to do that in front of students. I went back inside and Officer Nixon went on down the sidewalk. * * * After lunch duty was over, Mr. Brickel and I were walking back to the office and Officer Nixon was standing out there by the wall. He was crying (not boo-hooing, but tears in his eyes). He was saying that Mr. Mickens was calling his chief. He said that several times. We tried to calm him down, and Mr. Brickel told him to get in his car and go off and have a cigarette to help him calm down. James Brickel, the teacher referenced in Ms. Woods’ statement, also provided a written statement that confirmed the essentials of Ms. Woods’ account, as well as Respondent’s testimony regarding the miscommunication over the radio between Respondent and Officer Nixon. Respondent testified that after the incident, he called the office of Carolyn Baldwin, the assistant superintendent, to let her know what he said to Officer Nixon. Respondent also called Angus Williams, the Director of Discipline for the school district, who served as the school system’s liaison to the SROs. Respondent attempted to call Lt. Raggs, who was the charge officer for SROs, or anyone else in authority at the Haines City Police Department, but could not reach anyone there. He instructed his secretary to call them continuously, but was never able to speak to them. Respondent testified that Ms. Woods told him that she would call Ms. Killebrew. Ms. Killebrew testified that Ms. Woods called her. Ms. Killebrew stated that Ms. Woods was upset and told her there had been a loud argument between Mr. Mickens and the SRO. Ms. Killebrew stated that Ms. Woods was concerned because students had heard the argument and were already talking about it. Ms. Killebrew stated that Ms. Woods asked her to come back to Boone quickly. Ms. Killebrew testified that Ms. Woods also told her that Chief Wheeler of the Haines City Police Department wanted Ms. Killebrew to call him. This fact indicates that the Haines City Police Department was aware of the situation and acting upon it, despite Respondent’s futile attempts to contact the police directly. Ms. Killebrew testified that she called Chief Wheeler from her car, and he was "very angry and upset." It was agreed that Ms. Killebrew would meet him at the police station. Ms. Killebrew testified that Chief Wheeler was so angry and upset that she called Mr. Williams, the SRO liaison, to go with her to the police station to help guide her through the meeting. Ms. Killebrew and Mr. Williams first went to Boone, where they heard Respondent’s account of the incident. Ms. Killebrew testified that Respondent was "very calm" as he described what happened. She stated that the one point of contention was Respondent’s statement that he asked Officer Nixon to leave the campus. Mr. Williams informed Respondent that the SROs were not employed by the school district and that school administrators lacked the authority to order them off campus. Ms. Killebrew testified that Respondent believed he should have such authority but that he expressed his disagreement in a calm manner. Respondent generally agreed with Ms. Killebrew’s version of the meeting. His recollection was that it was Ms. Killebrew, not Mr. Williams, who told him he lacked the authority to order Officer Nixon off campus. Respondent also recalled that Mr. Williams cut off the conversation during this disagreement and stated that "we’re going to let administration take care of" investigating the matter. Mr. Williams instructed Respondent to report to the school board offices on the morning of Monday, April 28, 1997. Ms. Killebrew and Mr. Williams then drove to the police station. She testified that Officer Nixon was there when she arrived at the police station. Chief Wheeler and Lt. Raggs told her that Officer Nixon was in an office writing up his statement of what happened. Officer Nixon’s unsworn statement reads as follows, in full: On Friday, April 25, 1997 I, Officer Nixon, was on duty at Boone Middle School (225 South 22nd Street) when I advised the Assistant Principal Ron Mikens [sic] that I was having a problem with a student, [J.G.], in the cafeteria. Mr. Mikens then refused to come to the cafeteria. 8th grade lunch then started and I went outside to speak to Mr. Mikens about the problem. I told Mr. Mikens that [J.G.] was accused of picking on [B.D.] and I asked him if he had done anything about an incident that occured [sic] earlier in the week when [J.G.] refused to leave the bus zone and Mr. Mikens told me he had not done anything. I then told Mr. Mikens that [J.G.]’s behavior was getting worse and I felt that a student may get injured if some action was not taken. Mr. Mikens then got agitated and raised his voice at me and told me that I was picking on the kids. Mr. Mikens then pointed his finger at me and said, "let me tell you something Officer Nixon." I then told Mr. Mikens that I do not work for him and walked away. I then went into the main office and walked down the hall when Mr. Mikens began yelling at me again and pointing his finger in my face. I told him again that I did not work for him and at that point he told me to leave the campus. I told him I would not leave the campus and I walked out the door to Student Services and he followed me out the door. Mr. Mikens then began yelling at me in the hallway adjacent to the 8th grade patio and he put his finger in my face and told me that I did work for him and I will leave the school. Mr. Mikens created a disturbance in front of several 8th grade students and Mr. Mikens also stated that he wished I did put my hands on him. I walked away from him again and told Assistant Principal Becky Woods of the situation. I then left the school to prevent any further incident. Officer Nixon did not testify at the hearing. Ms. Killebrew testified that Chief Wheeler was threatening to arrest Respondent. Mr. Williams interjected that he would go to the school and that he would handle the situation. On Monday, Respondent reported as instructed and was interviewed by Dale McDonald, the school district’s Personnel Investigator Specialist, along with William Londeree, the Director of Employee Relations and Noninstructional Personnel. Respondent testified that he wrote a statement at their request. Respondent then was sent home for the rest of the day. Besides meeting with Respondent, Mr. McDonald talked to roughly ten students and had each of them make a written statement. He testified that Respondent gave him the names of three or four students who might have observed the incident. Mr. McDonald did not indicate the source of the other names. Ms. Roberts, the PTA President, testified that she was in the office on the day the interviews were conducted. Mr. McDonald was calling students down to the office, and Ms. Roberts noted four or five students who were discussing what they were going to say when Mr. McDonald called them in. She also noted that four of these students were members of the "Explorers," a Boy Scout type organization focusing on police work. Officer Nixon ran the Explorers chapter at Boone. Ms. Roberts testified that she interrupted the students’ conversation and told them to cease discussing the matter. She ordered them to sit quietly, wait to be called in, and tell the truth to the investigator. In a subsequent written statement, Mr. McDonald reported that he asked each student interviewed if he or she was a member of the Explorers, and that they all told him they were not. Ms. Roberts, who was at Boone every day during that school year and logged more than 1,000 volunteer hours, was in a position to know that the students in question were members of the Explorers, regardless of what these students told Mr. McDonald, an outsider to the Boone campus. Mr. McDonald also took statements from four staff persons, including the statements of Ms. Woods and Mr. Brickel referenced above. Mr. McDonald did not take the statement of Mr. Hunt because "Mr. Hunt was apparently a witness to only the tail end of the conversation." Mr. McDonald’s reasoning is curious in light of the fact that several of the statements he deemed worth taking were from students who saw only the episode on the walkway, and who could hear nothing of what the two men were saying. The walkway episode occurred later than the scene witnessed by Mr. Hunt. Leaving aside questions of bias on the part of the student witnesses, their hearsay statements are unreliable on their face as the basis for findings of fact. The students claim to have heard statements and seen actions that neither participant made or took. One student claimed to have seen Respondent raise his fist as if to hit Officer Nixon. Given the self-serving tenor of Officer Nixon’s written statement, it is difficult to believe he would have refrained from mentioning such an action if it occurred. The students also placed statements in the wrong person’s mouth. Even Officer Nixon agreed that it was he who substantially stated, "You’re not my boss." Yet one of the students claims Respondent made that statement. Mr. McDonald took the statement of one student who saw nothing of the incident, but whose friends told her that Respondent and Officer Nixon were "mad at each other." Another student heard someone say, "Don’t put your hand on me," but did not know who said it. Mr. McDonald also apparently found some value in the following student statement, which reads in full: Last Friday I had just come out of the lunchroom and I went to go sit with my friends and [S.W.] was sitting down by me and I was starting to talk to him and he told me to be quiet he wanted to hear what Mr. Mickens, Officer Nixon, and Mr. Brickel was saying, so I turned around to see what they were doing and that is all I saw. I could not understand what they were saying. Mr. Mickens was talking, but he usually talks loud. None of the students testified at the hearing, further eroding the probative value of their cursory written statements. The students’ statements are useful as an impressionistic indication that the conversation was somewhat more heated than Respondent recalled. All of the students agreed that both men appeared angry. The statements are also useful to indicate that Officer Nixon was not merely the passive recipient of abuse as he claimed in his self-serving written statement. Finally, the student statements are of some value in corroborating Respondent’s testimony that the conversation was not conducted in loud tones. Some of the students frankly admitted they could not hear what the two men were saying. Others claim to have heard statements that appear to be their surmises of what the men must have been saying, given that they "looked mad." In summary, Respondent’s version of events is the only one made under oath and subject to cross-examination, and was corroborated in part by Mr. Hunt. Petitioner offered no testimony from any eyewitness to the event. Officer Nixon’s unsworn hearsay statement is patently self-serving, portraying him as the victim of an unprovoked tirade by Respondent. The student statements are unreliable, except as indicated above. Respondent’s version is consistent with the descriptions of his character and demeanor and of Officer Nixon’s character and demeanor offered at the hearing. It is found that Respondent’s version of the incident with Officer Nixon is essentially accurate, though it likely understates somewhat the heat of the conversation between the two men. It is found that the confrontation was entirely verbal, and that neither man ever threatened to escalate the matter to physical violence. Both men were in a labile emotional state due to the funeral of Ms. Rubio, which contributed to turning a minor misunderstanding into a confrontation. Respondent calmed down quickly, but Officer Nixon remained upset and fearful that Respondent would report his actions to his superiors. This caused Officer Nixon to preemptively go to his superiors with his one-sided version of events, which outraged Chief Wheeler and led him to demand retribution against Respondent. Returning to the chronology of events, Respondent was sent home on Monday, April 28, 1997, after his meeting with Messrs. Londeree and McDonald. On Wednesday, April 30, Respondent received a phone call from Ms. Baldwin’s secretary, telling him to come to a meeting at which Ms. Baldwin "was going to work this thing out." He was told nothing further about the substance of this meeting or even who would be present. Ms. Baldwin testified that the meeting was attended by herself, Respondent, Officer Nixon, Ms. Killebrew, Chief Wheeler, Angus Williams, and Tillman Sanders, who worked in the Superintendent’s office. Ms. Killebrew recalled that two or three police lieutenants were present along with Chief Wheeler. Respondent also recalled that at least one other police officer besides Officer Nixon and Chief Wheeler was present. All agreed that Ms. Baldwin chaired the meeting. Ms. Baldwin testified that the meeting was called at the request of Chief Wheeler because he was "very upset about what he perceived to be unprofessional treatment of a police officer on our school campus." Ms. Baldwin testified that her agenda for the meeting was to assure Chief Wheeler that the incident would not be repeated and to allow Chief Wheeler to speak directly to Respondent. She did not testify as to any effort made by her or her staff to inform Respondent of the purpose of the meeting. Ms. Baldwin testified that Respondent spoke at length, giving his version of events. She opined that he seemed "pretty defensive," and became upset with Officer Nixon’s version of events. Ms. Killebrew testified that she was instructed by Ms. Baldwin during the meeting to write a letter of reprimand to be placed in Respondent’s file. She stated that Respondent was upset by this instruction and continued to argue that such a letter was not in order. Ms. Baldwin also testified that she "recommended" to Ms. Killebrew that a letter of reprimand be written for unprofessional behavior in front of staff and students. Ms. Killebrew testified that Ms. Baldwin gave her detailed instructions as to the form and content of the letter. Respondent testified that he was puzzled throughout the meeting. He testified that Ms. Baldwin lectured him that he was not under any circumstances to order a police officer off the campus. He testified that Chief Wheeler was extremely angry at the statement he had written, which contradicted that of Officer Nixon. At some point, it became clear to Respondent that the purpose of the meeting was to give him a letter of reprimand, not to air the facts of the situation. He testified that he had never heard of any school employee receiving such a public reprimand. Respondent testified that Ms. Baldwin stated that she had not read Mr. McDonald’s report and was not interested in reading it. This was essentially confirmed by Ms. Baldwin, who testified that her basic understanding of the facts came by way of conversations with Ms. Killebrew. Ms. Baldwin testified that it was not her role to investigate the facts. As found above, Ms. Killebrew was not a witness to any of the events on the Boone campus. Thus, Ms. Baldwin’s version of the facts was a third hand retelling of Officer Nixon’s story and need not be repeated here. Ms. Baldwin testified that Ms. Killebrew assured her that "numerous" staff members at Boone confirmed her version of the story, essentially an adoption of Officer Nixon’s statement. Neither Ms. Baldwin nor Ms. Killebrew provided the names of these "numerous" staff members. Ms. Baldwin admitted she performed no independent investigation of the facts or of the credibility and emotional state of Officer Nixon. She was not made aware of teachers from Boone who disagreed with Ms. Killebrew’s version of the facts. Based upon all the testimony, it is found that the principal purpose of this meeting was to publicly reprimand Respondent in an effort to mollify Chief Wheeler of the Haines City Police Department. The testimony indicates that every school board employee at the meeting, except Respondent and Angus Williams, was aware beforehand that he or she was present for a public chastisement of Respondent, not for a fair hearing. Both Ms. Baldwin and Ms. Killebrew insisted that the reprimand had nothing to do with whether Respondent was right or wrong in the argument, but was based on his behavior in front of students and staff. Their testimony was that they were not required to choose between the stories of Respondent and Officer Nixon in order to reprimand Respondent. This testimony is belied by the actual text of the letter of reprimand, dated April 30, 1997, which states in relevant part: I regret that I must reprimand you for unprofessional behavior in the performance of your duties as Assistant Principal at Boone Middle School. This comes as a result of the incident that took place with School Resource Officer Ed Nixon on Friday, April 25, 1997. I am also requiring that you get counseling through the Employee Assistance Program in the hope that it may help you understand the situation better. Despite its use of the first person singular, the letter was signed by both Ms. Baldwin and Ms. Killebrew. The first paragraph of the letter is consistent with the testimony that Respondent was reprimanded for having an argument with Officer Nixon in front of students and staff, regardless of the motivation or whose version of the story Ms. Baldwin and Ms. Killebrew believed. However, in the second paragraph of their letter, Ms. Baldwin and Ms. Killebrew order Respondent to enter counseling. This order indicates that Respondent’s version of events was disregarded and that Officer Nixon’s was entirely accepted. If Respondent was confronting Officer Nixon to protect a student from harassment and possibly from physical abuse, counseling would hardly be necessary to help him "understand the situation." Counseling might be called for if Respondent had gone into an unprovoked rage in response to an innocuous question by Officer Nixon. The finding that Respondent’s story was disregarded is supported by the fact that no disciplinary action was taken against Officer Nixon, the other participant in the incident. Respondent was required to stay home for at least three school days while his supervisors contemplated a course of action. Officer Nixon returned to Boone on the Monday following the incident. It is understood that the school district apparently lacked authority to take direct disciplinary action against Officer Nixon. However, nothing in the record of this case indicates that anyone from the school district even suggested disciplinary action to Officer Nixon’s superiors, despite his participation in the incident and despite repeated complaints from parents about Officer Nixon’s methods and actions on the Boone campus generally. This supports the finding that Respondent’s superiors accepted wholesale the facts as stated by Officer Nixon. Ms. Baldwin testified that the words "I am requiring that you get counseling" did not mean that she was requiring Respondent to get counseling. She stated that the words actually meant that she was "requesting" Respondent to obtain an "evaluation" because of "some behaviors . . . which appeared to be unusual to the supervisory people." She admitted that the "supervisory people" she referenced included no one other than Ms. Killebrew, who testified that the counseling requirement was placed in the letter on Ms. Baldwin’s instructions. Ms. Baldwin’s testimony cannot be credited as anything other than an effort to finesse the fact that she ordered Respondent to enter counseling when she lacked the authority to do so. Petitioner offered no evidence that Ms. Baldwin, as East Area Superintendent, was authorized to require Respondent to obtain counseling through the Employee Assistance Program. Ms. Baldwin testified that it was her understanding that her "recommendations" in this regard must be affirmed by the Superintendent and that she could take no disciplinary action against Respondent for refusing to enter counseling. When asked point blank if she believed she had the authority to require Respondent to submit to the Employee Assistance Program, she answered, "I had the authority to say that I thought that was an appropriate recommendation." Dennis Dunn, the Assistant Superintendent for Human Resources Services, testified that area superintendents such as Ms. Baldwin only have authority to recommend participation in the Employee Assistance Program. He stated that it would be gross misconduct for an area superintendent to require an employee to do something she lacks authority to require. When confronted with the actual letter of reprimand, Mr. Dunn decided that he might be wrong about the area superintendent’s authority in these matters. Ms. Killebrew testified that when she gave Respondent the letter of reprimand, she advised him to drop the matter and "let it go," that with good performance the reprimand letter would "go away." She testified that she told Respondent not to discuss the incident at school because she did not want staff and students gossiping and taking sides in the matter. Respondent testified that Ms. Killebrew never instructed him not to discuss the matter with his co-workers or students. Under cross-examination, Ms. Killebrew conceded that she never "ordered" Respondent not to discuss the matter, and that there was no written directive from her on the subject. She stated that, "I asked him not to, in a professional manner." In early May 1997, Respondent returned to his duties at Boone. On May 8, 1997, two incidents occurred involving Respondent. The first involved a conflict over whether Respondent or Officer Nixon should respond to altercations in classrooms. Ms. Killebrew’s version of events, as she stated was relayed to her by her secretary, is that the secretary placed a call sending Officer Nixon to remove disruptive students from a class pursuant to Ms. Killebrew’s general instruction to always send Officer Nixon on such calls. Shortly thereafter, Respondent approached the secretary and told her that from this point forward she was to send Respondent, not Officer Nixon, to address classroom disturbances. Ms. Killebrew’s secretary did not testify at the final hearing. It is also noted that Ms. Killebrew’s written statement describing these events appears not to have been typed by her secretary. The other letters in the record signed by Ms. Killebrew were typed by her secretary. Ms. Roberts, the PTA President, told a different version of this event. She was in the office when the call came in. She testified that Officer Nixon had just come in the front door when Respondent exited to go to the classroom. She stated that Officer Nixon ran out and said, "I’ll take it, I’ll take it," but that Respondent was already gone. She testified that Officer Nixon returned to the office angry, and said, "That’s it, I’m calling Carolyn Baldwin. He’s fighting me every inch of the way." Ms. Roberts testified that she was puzzled as to what Officer Nixon was talking about, because in her view Respondent was just doing his job. The second incident was caused by the first. Ms. Killebrew testified that she went into Respondent’s office to discuss the ongoing friction between Respondent and Officer Nixon, and particularly the incident between Respondent and her secretary. Ms. Killebrew testified that she also wished to discuss an incident relayed to her by "a teacher," in which Respondent allegedly pulled a child out of class to ask him about the incident with Officer Nixon. Again, Ms. Killebrew did not identify this teacher, and Petitioner offered no corroboration for her hearsay testimony. Thus, this portion of Ms. Killebrew’s testimony cannot be credited. Ms. Killebrew’s written statement of the incident, which she verified as accurate at the final hearing, states in relevant part: I told him that the conflict with Officer Nixon has to stop and that we all have to work together until school is out. I also told him that the staff was becoming divided because he was continuing to discuss it. He responded that he was going to the school board because everybody had lied about him. I told him that was fine, but it needed to be kept away from the school. I reminded him that I had asked him not to discuss the incident when I gave him the letter. He said, "That’s a lie. You never told me that." I asked, "You’re calling me a liar?" He responded, "Yes, I am. After all I’ve did for you, you sat up in that meeting and told those lies . . ." At this point, I stopped him and told him that he needed to take the afternoon off. He continued to go on. Several more times I had to try to stop him and repeat myself. Finally, he acknowledged that he had heard me. Respondent’s version of the incident basically coincides with Ms. Killebrew’s, with some differences in the particulars. When she asked if he was calling her a liar, Respondent testified that his answer was, "Ms. Killebrew, if you said you told me that, yes, you are lying." Respondent testified that he did not say that Ms. Killebrew lied at the earlier meeting with the police officers, but he did reproach her for not supporting him at the meeting. Respondent’s testimony is consistent with Ms. Killebrew’s own testimony that she sat silently at that meeting. Respondent testified that, although he was surprised at Ms. Killebrew’s statements, he responded calmly. On the advice of Dr. Neriah Roberts, Executive Director of the Association of School Based Administrators, Respondent requested that Ms. Killebrew put in writing her order that he go home for the remainder of the day. After obtaining direction from William Londeree, the district’s Director of Employee Relations and Non-Instructional Personnel, Ms. Killebrew put her order in writing and Respondent went home. On the afternoon of May 8, 1997, Ms. Killebrew wrote the statement quoted above, in the form of a letter to Superintendent Glenn Reynolds. The letter concludes as follows: Due to Mr. Mickens’ insubordinate, disrespectful behavior to me, I am asking that you suspend him, without pay, from his duties as assistant principal at Boone Middle School. I am also asking that you consider reassigning him to another location. Not only has he compromised his working relationship with me, he has also put his effectiveness here at the school in jeopardy by failing to behave in a professional manner. Ms. Killebrew testified that she wrote this letter according to instructions given her by Ms. Baldwin, as she had the earlier reprimand letter. She testified that Ms. Baldwin instructed her as to the form and content of the letter, including the suspension recommendation. Ms. Killebrew testified that Ms. Baldwin told her that the School Board has progressive discipline. Ms. Baldwin told Ms. Killebrew that "He had been given a letter of reprimand. This would be step two, therefore I should ask for a suspension." As will be discussed more fully in the conclusions of law below, Ms. Baldwin was correct in stating that the Polk County School Board has progressive discipline. However, "step two" in the progression set forth in Section 3.005(II)(A) of the School Board policies is a "written reprimand," not a suspension. "Suspension or demotion" is step three in the progression. In their eagerness to pacify Chief Wheeler, the district administrators passed over step one in the School Board’s progressive discipline scheme, "verbal reprimand." It is found that Respondent was truthful in testifying that he did not understand Ms. Killebrew to have directed him to refrain from discussing these matters at school. Ms. Killebrew herself softened her recollection to testify that she had "asked" Respondent not to discuss the incident. However, it is also found that such an instruction should not have been necessary. Whether or not Ms. Killebrew said anything at all to Respondent, he should have understood that no good to the school could come from hallway discussions of the incident with Officer Nixon. Respondent did not deny talking about the incident upon his return to Boone. Ms. Killebrew’s testimony that she was hearing from staff that Respondent was discussing the matter is credited. Thus, Ms. Killebrew was justified in confronting Respondent about the matter. Whatever his feelings, Respondent was impolitic at best in accusing Ms. Killebrew of lying. Her immediate reaction in sending Respondent home for the rest of the afternoon was also justified. Tempers could cool and the matter could be addressed rationally at a later time. Nonetheless, it cannot be overlooked that Ms. Killebrew appears to have been pursuing a personal agenda against Respondent. Ms. Roberts, the PTA President, testified that she spoke with Respondent on the day he returned to the Boone campus in early May and offered to be a character witness for him. Shortly thereafter, she was approached by Ms. Killebrew: Eileen Killebrew came up to me and advised me not to talk to him and not to ask him questions about it or to be friendly, and she made the statement, I want him off my campus, or something to that effect . . . I said, Mr. Mickens, he’s so nice, he’s a nice man. And she said, oh, you don’t know, you don’t know. I want him out of here. The vehemence of Ms. Killebrew’s statements to Ms. Roberts cannot be explained by Respondent’s set-to with Officer Nixon, or by her vague comments that she had noted some slippage in Respondent’s performance during the 1996-1997 school year, even if those comments could be credited as more than after-the-fact rationalizations for her actions. Respondent noted that Ms. Killebrew’s change in attitude toward him coincided with his rejection of her request that he join her in transferring to Crystal Lake Middle School. The facts also demonstrate that Ms. Killebrew was well aware that parents and Respondent were concerned about the bullying methods of Officer Nixon and that Ms. Killebrew stood squarely behind Officer Nixon. It is found that these factors best explain why Ms. Killebrew would seize upon a brief argument that occurred behind closed doors as a pretext for attempting to have Respondent suspended from his job without pay and reassigned. She did not wait for tempers to cool, did not attempt to have a rational conversation with Respondent, or otherwise seek a less drastic remedy. Ms. Killebrew wanted an excuse to get Respondent "off her campus," and this incident could do the job. The following day, May 9, 1997, Superintendent Glenn Reynolds sent a letter to Respondent advising that he was placing Respondent on paid leave, effective May 12, 1997. The letter also stated that Mr. Reynolds was "requiring you to submit to a complete medical and psychological evaluation," and provided a list of physicians and psychologists from which Respondent could choose. The letter required Respondent to choose one physician and one psychologist and to inform the Employee Relations Office of his choices no later than May 14, 1997. Unlike Ms. Baldwin, Mr. Reynolds freely admitted that the word "requiring" in his letter meant "requiring." However, as with Ms. Baldwin, Petitioner offered no evidence to demonstrate that Mr. Reynolds had the authority to require Respondent to submit to a complete medical and psychological examination. Mr. Reynolds essentially contended that he had the inherent authority as Superintendent to require Respondent to submit to these examinations. The school district’s Contract of Employment for Administrators for the school year 1997-1998 contained a provision stating as follows: The Employee, at his expense, agrees to submit to the Board, if required, prior to the effective date of this contract written evidence of good health as required by Board policy. The Employee, at the expense of the Board, further agrees, upon request of the Board at any time during the school term, to submit to a physical or psychiatric examination by a qualified physician or physicians to be selected by the Employee from a list consisting of not less than three (3) names approved by the Board. The Employee further agrees to allow the report of the physicians to be submitted to the board with a copy being forwarded to the Employee. The quoted provision was not contained in the contracts for prior years, including the 1996-1997 school year that is the relevant time period for this hearing. Mr. Reynolds testified that he could not recall the particulars regarding this change to the employment contract. It is noted that even if the quoted provision had been in effect, the authority to require an employee to submit to a psychiatric examination is vested in the School Board, not the Superintendent. Respondent replied by letter dated May 12, 1997, informing Mr. Reynolds of his selection of a physician and a psychologist. Respondent’s letter also requested a conference with Ms. Killebrew and a reason in writing from Mr. Reynolds for the medical and psychological evaluation. By letter dated May 14, 1997, Mr. Reynolds responded as follows, in relevant part: I have required the evaluations to provide me with an independent, professional opinion as to whether there are stress-related or medical reasons for reported behaviors which had not been evidenced in your previous work experience. The information will help me in making decisions relating to behaviors which have been recently reported and/or investigated. Mr. Reynolds’ letter was silent as to Respondent’s request for a meeting with Ms. Killebrew. Mr. Reynolds use of "recently reported and/or investigated" in the statement quoted above is technically accurate but misleading in its implication that an "investigation" may have occurred. Mr. Reynolds in fact relied on Ms. Killebrew’s version of events as conveyed to him by Ms. Baldwin, along with the uninformative statements collected by Mr. McDonald and the self-serving written statement of Officer Nixon, which Mr. Reynolds inaptly termed a "deposition." Mr. Reynolds neither conducted nor ordered an independent investigation of the events at Boone. Respondent was dissatisfied with the reasons given for subjecting him to a psychological evaluation and met with Mr. Reynolds. Respondent testified that at the meeting, Mr. Reynolds would only say that he wanted an independent opinion regarding Respondent’s mental health and told Respondent that he would likely be terminated if he didn’t do it. Respondent testified that he was a former military officer, and if his superior ordered him to see a psychologist, he would see a psychologist. At the hearing, Mr. Reynolds was unable to recall lucidly the chronology of events. He justified ordering the psychological exam by reference to "threats" Respondent had made. Further inquiry revealed that the referenced "threats" related to events that allegedly occurred three months after Mr. Reynolds ordered the examination. Mr. Reynolds also suggested that he was acting to help Respondent and perhaps prevent a situation such as later occurred at Littleton, Colorado, and Conyers, Georgia. This suggestion was irrational, given that Respondent had been accused only of having a shouting match with a School Resource Officer and an argument with Ms. Killebrew. Mr. Reynolds frankly admitted he was relying on the word of Ms. Killebrew regarding the events at Boone and Respondent’s mental state. It is not surprising that someone relying entirely on Ms. Killbrew’s version of events would come away believing that Respondent was emotionally unstable, and come away knowing none of the details regarding Officer Nixon’s pattern of behavior at the school or Ms. Killebrew’s resentment of Respondent. Mr. Reynolds justified his reliance on Ms. Killebrew’s word by saying, "We have to assume that our administrators are going to be honest, be straightforward." He failed to explain why Respondent, also an administrator, did not enjoy the benefit of the same assumption. It is found that Mr. Reynolds lacked a sufficient factual basis for taking the serious, potentially stigmatizing step of ordering Respondent to submit to a psychological examination, even if it is assumed that Mr. Reynolds had the authority to do so. The only facts before Mr. Reynolds were that Respondent had arguments with Ms. Killebrew and Officer Nixon, plus Ms. Killebrew’s vague impressions that Respondent appeared to be under stress. Mr. Reynolds made no independent investigation of the situation. He expressed no curiosity as to whether there were personal grudges or emotional issues on the part of Officer Nixon and Ms. Killebrew, even after a group of parents and teachers including Ms. Fields, Ms. Roberts, and Mr. Hunt met with him to state their support of Respondent and their concerns about Officer Nixon’s behavior on the Boone campus. Respondent submitted to the psychological exam on June 11, 1997. Respondent testified that the psychologist presented him with release forms and asked Respondent to sign them. Respondent refused his consent to allow any examination report to be turned over to the school district. Discussions ensued between Respondent and Messrs. Dunn and Londeree of the school district over the release of the examination report. Respondent testified that the psychologist refused to go over the results of the examination with him unless he would sign the release forms. Respondent testified that Mr. Dunn later phoned him to say that he had spoken with the psychologist and arranged for Respondent to go back in and sit down with the psychologist to go over the report. Respondent returned to the psychologist, who told him that he had not written a "report" and did not intend to do so. Respondent testified that the psychologist said to him, "Your problem is not with me, it’s with the Superintendent of Schools." Respondent testified that he next received a call from Mr. Londeree, who wanted to make a deal. Mr. Londeree asked Respondent to permit the psychologist to send a copy of the report to the school district at the same time a copy was sent to Respondent. Respondent testified that his answer was, "I don’t make deals." Respondent testified that Mr. Londeree told him that if the school district did not receive a copy of the psychologist’s report, then it would go to "Plan B." Respondent stated that he and Dr. Roberts puzzled over what "Plan B" might be. Respondent testified that, in retrospect, he assumed "Plan B" was to transfer him to McLaughlin Middle School, because the transfer occurred immediately after he confirmed his refusal to release his records. By letter dated July 23, 1997, Mr. Reynolds informed Respondent that he was reassigned to the assistant principal position at McLaughlin Middle School, effective immediately. Mr. Reynolds testified that Respondent’s refusal to release the exam results played no part in his decision to transfer Respondent, though he offered no alternative explanation for the timing of his decision. The same alleged facts were before Mr. Reynolds on May 9, 1997, when he suspended Respondent with pay, yet more than two months lapsed before this reassignment, just after Respondent’s refusal to release the records of a psychological examination he should not have been required to take. Ronald Rizer, the principal of McLaughlin Middle School, testified that he could not remember the date he was told that Respondent would begin work at his school. He remembered that Ms. Baldwin called him and asked if he would be willing to swap his current assistant principal for Respondent. Mr. Rizer testified that he told Ms. Baldwin he would work with her and the Superintendent in any way he could. Mr. Rizer did not testify as to whether Ms. Baldwin or Mr. Reynolds briefed him on the previous spring’s events at Boone or gave him their opinion of Respondent’s mental and emotional state. Respondent took a few days’ personal leave, then reported at McLaughlin on Tuesday, August 5, 1997. Classes had not begun, but the faculty had returned to prepare for the approaching school year. Mr. Rizer testified that he greeted Respondent and told him he would introduce him to the faculty via the intercom. He told Respondent that he had no basic assignments for him that day and that Respondent should spend the day getting acquainted with the faculty. Alan Jostes was the Dean of Students at McLaughlin. He testified that he learned that morning there was a new assistant principal, and went to Respondent’s office to introduce himself. He testified that Mr. Rizer had assigned him to prepare the duty assignment list, and that he began going over the list with Respondent. Mr. Jostes testified that Respondent saw his name on the list for morning bus duty and immediately became "very upset, yelling at me, ‘Why is my name on this? I don’t do any duties.’" Mr. Jostes told Respondent that he had simply plugged Respondent’s name into the spots on the list that had been filled by the previous assistant principal the year before. Mr. Jostes testified that Respondent became very angry with him: "I felt very threatened at that point. Accusing me of, you know, being insubordinate and not doing my job, when I was asked by the building Principal." Respondent testified that he never yelled at anybody. He stated that when he saw Mr. Jostes had assigned him to bus duty five days a week, he told Mr. Jostes, "I’m a rover. I have to do student, teachers, parent conferences in the morning. I have to check the teachers’ duty stations." Respondent told Mr. Jostes to take the morning bus duty until Respondent could evaluate the personnel and assign someone to the duty on a permanent basis. Mr. Jostes testified that things calmed down as he took Respondent for a tour of the various duty stations, but that Respondent again became agitated when he saw his name on the assignment list for eighth grade cafeteria duty. Mr. Jostes testified that Respondent became "very confrontational" and yelled at him. Mr. Jostes stated that at this point the conversation was going nowhere and he asked Respondent if he needed anything else. Respondent asked Mr. Jostes to show him the classrooms. They walked down the sixth and eighth grade hallways, after which Respondent said, "That’s all I need. You may go back to your office." Respondent agreed that Mr. Jostes took him around the campus. He testified that when he saw Mr. Jostes had put him down for one hour’s duty in the cafeteria, he informed Mr. Jostes that "I pull lunch duty all three hours. I said this is my time to be proactive with the students. I explained all this to him. And I said, Mr. Jostes, [you’re] really talking to me in a condescending manner. [You’re] talking to me like you’re the assistant principal. Mr. Jostes just kind of turned his head." Respondent testified that he then asked Mr. Jostes to show him the sixth and eighth grade wings, after which he told Mr. Jostes that was all he needed. Respondent’s version of these events is credited as a more objectively accurate statement, though it is found that Mr. Jostes’ honestly perceived that Respondent was "yelling" at him. In his demeanor while testifying, Mr. Jostes appeared to be a soft-spoken, sensitive, somewhat timorous gentleman. Respondent does not speak in a loud voice, but his voice does carry conviction and assertiveness. Respondent is also sensitive to what he perceives as condescension, and likely took on a stern tone when he felt Mr. Jostes was talking down to him. This in turn intimidated Mr. Jostes, who considered it "yelling." Supporting the finding that Mr. Jostes’ reactions do not provide an accurate measure of Respondent’s "anger" and propensity for "yelling" is the testimony of Gene Carroll, the in-school suspension instructor at McLaughlin. Over the course of two days, Respondent and Mr. Carroll engaged in serious discussions over the direction of the discipline program at McLaughlin. There were times when the two men were at loggerheads over changes that Respondent wished to make in the program. Despite these serious disagreements, Mr. Carroll testified that Respondent "always had a good attitude, I thought. Very pleasant to speak to, and I like him real well as far as [that]. I just didn’t like his program." Mr. Jostes testified that the next afternoon, he went to Respondent’s office at Respondent’s request. Mr. Jostes then stated: When I arrived back about 12:30, I went directly to his office. And I said, "Is now a good time?" And he’s sitting at his desk, and he said, "You need to shut both doors," after I walked into the office. The conversation in his office turned to, "You have an attitude. You’re very insubordinate to me," and it went from nothing to yelling and screaming at me. I mean, it was not a directive voice, it was yelling and screaming. "You’re insubordinate. You’re very . . . you have an attitude. And if you don’t like the way I do things around here, I’m going to find someone else for the job, and I will get you out of here." And he said, "Do you have any questions?" And before I could even answer that, he says, "And if you don’t like what I’m saying, we’ll get Mr. Rizer in here." And at that point, I said, "I think that would be a good idea." Respondent’s recollection of this incident was markedly different: I guess a little bit before 1:00, I called Mr. Jostes into my office, and I want to go over and want to make sure that he was prepared to, you know, take part, you know, in the afternoon [teachers’] meeting. Mr. Jostes [sat] down . . . and my door was here. I asked him, I said would you please close the door. He just [sat] there. And he said, I think we need to see Mr. Rizer. Q. Had you had a conversation? A. No. He said, I think we need to go see Mr. Rizer. So I said, all right, let’s go see Mr. Rizer. Respondent’s version of this encounter is credited. It appears that Mr. Jostes confused statements that Respondent made during the subsequent meeting with Mr. Rizer with statements made in Respondent’s office. It is also more plausible that Mr. Jostes would be the person to suggest taking their dispute to Mr. Rizer, because Mr. Jostes had a long-standing working relationship with Mr. Rizer. Respondent had met Mr. Rizer only the previous day. The two men went to Mr. Rizer’s office. Mr. Rizer testified that they came in because of Respondent’s concerns that Mr. Jostes was being insubordinate and trying to tell him what to do. Mr. Rizer testified that Mr. Jostes had already reported to him the difficulties he was having with Respondent. This supports Respondent’s testimony that it was Mr. Jostes who suggested a meeting with Mr. Rizer. Mr. Rizer testified that he attempted to explain to Respondent that he had assigned Mr. Jostes the duty assignment list, but had difficulty getting a word in edgewise. He testified that Respondent repeatedly interrupted him. Mr. Rizer testified that he became irritated and slammed his hand down on his desk and said, "Wait a minute. I’m the Principal here and I’m the boss. You’re not, and you’re going to do things my way." Mr. Rizer testified that Respondent settled down at that point and listened. Mr. Rizer testified that the latter portion of the meeting was productive. He explained to Respondent that he had carved out a special role for Mr. Jostes to further his career goals, and that role was somewhat different than that of the typical dean of students. Mr. Rizer testified that he felt there was a meeting of minds as to the way he had established things as principal of McLaughlin Middle School. Mr. Jostes and Respondent generally agreed with Mr. Rizer’s testimony regarding their meeting. Mr. Jostes agreed that the meeting ended calmly and positively. He also stated that he and Respondent returned to Respondent’s office after the meeting, and "we actually had a very productive communication." Respondent testified that in the early part of the meeting, he complained about the lack of cooperation from Mr. Jostes and told Mr. Rizer that "I can carry it by myself until we can bring in somebody who wants to cooperate and be my Dean of Students." Respondent did not recall Mr. Rizer's slamming his hand on the desk, but agreed there came a point at which Mr. Rizer asserted control of the meeting and Respondent listened to what he said. Respondent testified that by meeting’s end, all three participants seemed happy. Mr. Jostes agreed that Respondent seemed better to understand the situation on the campus at the end of the meeting. Respondent said to Mr. Jostes, "Let’s get out of here and go to work." They returned to Respondent’s office and prepared for the afternoon meetings, then sat together in those meetings for the rest of the afternoon. Gene Carroll was in charge of the In-School Suspension ("ISS") program at McLaughlin. On the afternoon of August 5, he introduced himself to Respondent and showed him a copy of the written protocols for the ISS program. Mr. Carroll testified that Respondent handed the paper back to him and said that he did not want a concrete program because he preferred flexibility in making disciplinary decisions. This commenced a substantive dispute, the narrow details of which are unnecessary to recite in this Order. In essence, Respondent had been in charge of discipline at Boone and had run it with a measure of personal discretion in meting out punishment. The program at McLaughlin was a more lockstep system of progressive punishment. Mr. Carroll conceded that Respondent’s program worked well at Boone, but testified that he and Mr. Rizer believed the stricter program was needed at McLaughlin because of its larger and more diverse student population. Respondent believed that his methods were in keeping with school district policy, and that McLaughlin was out of step with the district’s disciplinary philosophy. Mr. Carroll believed that Respondent was "coming on a little strong" in light of the facts that he had just been assigned to the school, that he was unfamiliar with the McLaughlin community and problems, and especially that the McLaughlin ISS program had been developed by Mr. Rizer when he was Assistant Principal for Discipline. However, Mr. Carroll stated that his differences with Respondent were philosophical, not personal. The only point of contention was Mr. Carroll’s testimony that at one point in the discussions, Respondent told him that he would do it Mr. Rizer’s way for a while, but then would run the program as he saw fit. Mr. Carroll testified that he told Respondent that he needed to talk to Mr. Rizer and straighten things out. Respondent testified that Mr. Carroll misunderstood his comments. He was trying to convey to Mr. Carroll that as disciplinarian, he believed he had to personalize the program. He testified that he was willing to do things in any way Mr. Rizer saw fit. Respondent stated that he told Mr. Carroll to do exactly what Mr. Rizer told him to do. Mr. Carroll agreed that Respondent accepted the ISS program once he understood it. Mr. Carroll’s written statement of events concluded, "I left with a very good feeling that everything would be fine and we would continue our successful program." On Friday, August 8, 1997, Respondent attended a semi- annual district-wide meeting of assistant principals, school resource officers, and deans of students. The purpose of these meetings is to discuss code of conduct and other disciplinary issues. The meeting was chaired by Robert Bondurant, Director of Discipline and Security for the Polk County School Board. During the meeting, Respondent raised his hand during a question session. Mr. Bondurant recognized him. Respondent asked if the district could provide a written definition of the duties and scope of authority of assistant principals and school resource officers. Mr. Bondurant testified that this was a prudent request and agreed to provide the requested definition. While he had the floor, Respondent also spoke for several minutes about his own dispute with Officer Nixon regarding the scope of the SRO’s authority on the Boone campus, and the response of district administrators to the dispute. Mr. Bondurant characterized this portion of Respondent’s remarks as an unprofessional "lambasting" of district administration for its handling of Respondent’s situation. Mr. Bondurant did not believe that what took place between Respondent and his principal or district administration was a proper subject for this meeting, even though it provided the factual context of Respondent’s request for written definitions of duties. Mr. Bondurant conceded that his was a subjective judgment, and that another witness might have no objection to Respondent’s statements. Mr. Jostes was present at the meeting and agreed with Mr. Bondurant that Respondent’s comments were inappropriate. He opined that Respondent was "airing out a lot of anger and frustrations that should have been done in a one-on-one situation with . . . the powers that be in the county." Mr. Jostes, too, conceded that this was his subjective assessment of Respondent’s statements. Patricia Barnes is an assistant principal at Mulberry High School, and was present at the meeting. She testified that Respondent spoke for a long time, but that he spoke in a professional manner and that his statements were relevant to the audience of assistant principals, deans of students, and school resource officers. Keith Mitchell is a 17-year veteran of the City of Bartow Police Department. He was present at the meeting and testified that Respondent spoke in a professional manner and that his statements were relevant to the subject matter of the meeting. On the afternoon of August 8, 1997, a coordinated letter writing effort began. It is unclear precisely who instigated this effort, but the testimony of Dennis Dunn, the Assistant Superintendent for Human Resource Services, makes it clear that Mr. Rizer was instructed by someone in the Superintendent’s office to write a statement. Mr. Dunn testified that he could not recall the precise date when the instruction was given or whether the instruction came directly from Mr. Reynolds or from an associate superintendent. He conceded that the instruction had to have been given some time between Tuesday, August 5, when Respondent commenced work at McLaughlin, and Friday, August 8, when the letters were written. In any event, on August 8, 1997, Mr. Rizer wrote a three-page memorandum to Glenn Reynolds in which he repeated, as fact, the accusations of Mr. Jostes and Mr. Carroll concerning events which Mr. Rizer did not witness. He also repeated comments made by "a teacher," who allegedly told him that "a lot of other teachers" had "concerns" about Respondent. One of these "other teachers" "wondered how many personalities Mr. Mickens has." Mr. Rizer stated that "he was told" that Respondent "seemed not to have his act together" while speaking at a faculty meeting. Mr. Rizer skipped the faculty meeting to write the memorandum. Most damaging to Respondent was the following statement in Mr. Rizer’s memorandum: I personally have some concerns about Mr. Mickens; one minute he is calm and the next minute he is very angry. This man has a lot of anger and I feel something serious could happen when he is in his angry state. I do not feel comfortable him being here. Mr. Rizer spent a total of two to three hours in the same room as Respondent. He estimated that he spent about a half-hour with Respondent in a one-on-one basis. He claimed to have seen Respondent become angry one time and testified that Respondent calmed down after Mr. Rizer asserted himself and that they went on to have a productive meeting. Mr. Rizer had no factual basis for the opinion quoted above, plainly implying that he believes Respondent is a danger to the school. He witnessed nothing that would lead a rational person to fear that Respondent might do "something serious." His sources of information were the exaggerations of Mr. Jostes and some hallway gossip by unnamed teachers. Even Mr. Carroll testified that there was no problem with Respondent’s behavior. At the hearing, Mr. Rizer denied that his memorandum was an attempt to portray Respondent as an emotionally unstable person. In fact, this appears to have been his precise purpose. In addition to writing his own memorandum, Mr. Rizer secured written statements from Mr. Jostes, Mr. Carroll, and Russell Aaron, a teacher at McLaughlin. Also on August 8, Mr. Bondurant wrote a letter to Mr. Reynolds concerning Respondent’s comments at the assistant principals’ meeting, a further indication that the Superintendent’s office was coordinating this effort. The letters from Mr. Jostes and Mr. Carroll recapitulate their testimony outlined above. Mr. Carroll states that he is writing his letter "at the request of Mr. Rizer." The letter from Mr. Aaron to Mr. Rizer, dated August 8, 1997, states, in full: After your phone call this evening about the situation with Mr. Mickens, I felt I should write this letter about an incident that took place last week. On Friday, August 1, 1997, I was riding by the school and saw Mr. Hardee [the former Assistant Principal at McLaughlin] standing in front of the school. I had already been informed that he was leaving our school so I stopped to tell him goodbye. He was talking to another man and when I walked up he introduced Mr. Mickens to me. I asked Mr. Hardee [why] he was leaving McLaughlin Middle and he said Mrs. Baldwin asked him to. At that Mr. Mickens said "Carolyn Baldwin, that Fat Bitch, I’m suing her, Glenn Reynolds and all those Bitches over there. I got my Due Process, they didn’t give me my Due Process. I’m gonna get all of them." At that point you walked out of the door and he (Mr. Mickens) stopped talking and walked back in the building with you. Mr. Aaron testified at the hearing. Mr. Hardee did not. Despite the statement that he was writing this letter "After your phone call this evening about the situation with Mr. Mickens," Mr. Aaron testified that it was he who called Mr. Rizer, on a Friday evening a week after the alleged incident occurred. When asked why he waited a week before calling Mr. Rizer about this incident, Mr. Aaron stated, "I think maybe we had talked about it at school, and then we talked about me putting it in writing, and I had called him that night or something, about how I was supposed to go about doing that. He knew about it before that week was out." This testimony cannot be credited. The letter itself indicates that Mr. Aaron was solicited by Mr. Rizer on Friday evening, not vice versa. Given the opprobrious hearsay that Mr. Rizer saw fit to include in his own memorandum to Mr. Reynolds, it is implausible to believe he would not have included this incident had he known of it on Friday afternoon. Mr. Aaron testified that he had never met Respondent before this incident. He testified that Respondent made his statements at the mention of Ms. Baldwin’s name. He testified that neither he nor Mr. Hardee used any profanity during this conversation. Mr. Aaron’s testimony is credited to the extent that Respondent made some sort of derogatory comments about Ms. Baldwin and Mr. Reynolds. Given the prior testimony regarding Respondent’s character and manner, it seems unlikely that he would have erupted with such vehement language, particularly in front of a complete stranger and without so much as a nudge from those in his company. Under the circumstances of the conversation, it also seems unlikely that Respondent was the only person present who made derogatory remarks about district administrators. Mr. Aaron’s credibility is compromised by his equivocations about the phone call from Mr. Rizer, and by the fact that he did nothing for a week and apparently required some coaxing to write his letter reporting the incident. These findings are also influenced by the fact that Mr. Hardee did not testify to corroborate Mr. Aaron’s story. It is found that Mr. Rizer’s actions on August 8, 1997, were out of all proportion to the minor incidents that occurred on the McLaughlin campus, which a rational person might attribute to a new assistant principal’s over-eagerness to take control and make a good impression and to the natural resistance he would meet from entrenched employees less than eager to change their established methods of doing business. The testimony of Respondent, Mr. Carroll, Mr. Jostes, and even Mr. Rizer himself, indicated that Respondent was beginning to settle in to a smooth working relationship with his peers at McLaughlin after an admittedly rocky start. Mr. Rizer’s actions are made even more irrational by the fact that, though he was contemplating action that he hoped would remove Respondent from the campus, he never mentioned to Respondent that there was even a problem. Respondent testified that he believed things were going well at McLaughlin. He presided over an open house on the morning of Thursday, August 7, 1997, and over teacher meetings all that afternoon with Mr. Jostes. He testified that these were "great" meetings. Respondent testified that after he returned from the assistant principals’ meeting on Friday, Mr. Carroll approached him and told him "point blank" that he would work with Respondent in every way. Respondent testified that he liked Mr. Carroll very much, and that Mr. Carroll seemed to like him. Mr. Rizer had given him a project to complete by Friday. He intervened in a situation in which a parent had a "heated, profane argument" with a school secretary, and resolved it such that the parent left the school "super happy." He made a short presentation to the teachers on Friday afternoon, then completed a video for a presentation he planned to make on Monday. Counsel for Respondent pressed the theory that the transfer to McLaughlin was a set-up from the outset, that the Superintendent’s office planned from the beginning to move Respondent there for a short period before cooking up some reason to terminate him. Based on the evidence presented, it would be fair to reach this conclusion. However, a more plausible explanation of events is that, at the time Ms. Baldwin asked Mr. Rizer about the trade of assistant principals between Boone and McLaughlin, she or someone else in the Superintendent’s office fully briefed Mr. Rizer about the events at Boone and their aftermath. It makes sense that anyone in Mr. Rizer’s position would ask why Ms. Baldwin wanted to make this switch and that she would respond with a recitation of the Boone events according to Ms. Killebrew. If Mr. Rizer "knew" on August 23 that he was getting an emotionally unstable, insubordinate, over-stressed employee who had been ordered to visit a psychologist and refused to release the results, then his disproportionate response to Respondent’s actions and the fearful tone of his letter become understandable. Nothing in the record directly indicates that Mr. Rizer had been briefed about Respondent before he arrived, but that is a rational explanation for his actions. Respondent had no idea of the machinations going on between Mr. Rizer and the Superintendent’s office until the morning of Saturday, August 9, 1997. Dennis Dunn phoned Respondent and told him not to report to the school on the following Monday. Rather, Respondent was told to report to the district office. Respondent reported to the district office on Monday, August 11, 1997. He was told to turn in his keys and handed a letter from Mr. Reynolds that read, in relevant part: Based upon reports of your misconduct in office and gross insubordination, which are grounds for suspension or termination of your employment as provided in Section 231.36(6)(b), Florida Statutes, please be advised that I am suspending you with pay effective August 11, 1997 pending the completion of an investigation. You will be given an opportunity to give your explanations regarding the accusations and will be notified of the results of the investigation. As with the incidents at Boone, there was no "investigation" of the events at McLaughlin as that term is commonly used, i.e., an independent effort to ascertain the relevant facts. Mr. Reynolds and his subordinates simply took at face value the materials provided by Mr. Rizer and others, then met to decide on a course of discipline for Respondent. This is borne out by Mr. Reynolds’ letter to Respondent of August 14, 1997, stating, "Enclosed are letters and reports of incidents upon which I could impose disciplinary action." In other words, the "investigation" lasted less than three days, and the investigative report consisted of the letters from Messrs. Rizer, Jostes, Carroll, Aaron, and Bondurant. Mr. Reynolds testified that he met with Ms. Baldwin, Mr. Londeree, Mr. Dunn, and his legal counsel, Donald Wilson, Jr., to deliberate action against Respondent. This meeting was not noticed or open to the public. Respondent was given no notice or opportunity to attend. Mr. Reynolds solicited and received the advice and recommendations of those present at the meeting. He received legal advice from Mr. Wilson. Mr. Dunn testified that the group "collectively" participated in the decision-making process. On August 29, 1997, Mr. Wilson wrote a letter to Respondent’s lawyer, which stated in relevant part: I am writing this letter at the direction of the Superintendent. It is the Superintendent’s opinion that Mr. Mickens’ actions constitute misconduct in office as an assistant principal and that generally his ongoing conduct and repeated actions are wholly incompatible with the standard of conduct the Superintendent reasonably requires from school based administrators. Further, Mr. Mickens’ actions at both Boone Middle School and McLaughlin Middle School and his conduct toward and statements to members of the staff at those schools have made it impossible for him to continue to effectively perform the duties of an assistant principal. In summary, the Superintendent has concluded that Mr. Mickens has specifically engaged in misconduct in office as an assistant principal and that his conduct generally is so serious as to constitute just cause for termination of his position as an assistant principal. The Superintendent will be recommending to the School Board at its regular meeting on September 9, 1997 that Mr. Mickens be removed as an assistant principal. He will continue to be suspended with pay until that time. Mr. Mickens holds a professional services contract pursuant to Section 231.36(3), Florida Statutes, and the Superintendent’s recommendation regarding his contract as an assistant principal is not intended to affect his professional services contract. Accordingly, if the School Board should act favorably on the recommendation on September 9th, Mr. Mickens will be asked to report on September 10, 1997 to Assistant Superintendent Denny Dunn to available teaching positions to determine an appropriate position to which Mr. Mickens will be assigned. It is noted that Mr. Reynolds’ suspension letter of August 11 also accused Respondent of "gross insubordination." Mr. Wilson’s letter mentions only "misconduct in office." The reference to "Mr. Mickens’ actions at both Boone Middle School and McLaughlin Middle School and his conduct toward and statements to members of the staff at those schools" is as close to a formal statement of factual allegations as Respondent ever received in this process. No formal charging document enumerating the facts upon which the Superintendent based his recommendation was ever provided to Respondent or this tribunal, even after Judge Cave directed the School Board to provide a statement of factual allegations at the motion hearing of February 25, 1999. No charging document was ever filed setting forth the particular provisions of the Code of Ethics of the Education Profession, Rule 6B-1.001, Florida Administrative Code, or the Principles of Professional Conduct for the Education Profession in Florida, Rule 6B-1.006, Florida Administrative Code, that Respondent was alleged to have violated. In fact, Petitioner’s first mention of those rules in this case occurred in its Proposed Recommended Order. At its meeting of September 9, 1997, the School Board took up the Superintendent’s recommendation. Mr. Reynolds addressed the School Board, reciting that Respondent "has engaged in a series of actions which constitute misconduct in office as an Assistant principal, and that his ongoing conduct and repeated actions are generally and wholly incompatible with the standard of conduct we reasonably require from school based administrators." Mr. Reynolds did not state any factual allegation against Respondent. During the lengthy deliberations that ensued, at least two members of the School Board voiced concerns over being asked to vote on a matter without knowing any of the underlying facts. The School Board’s lawyer was Steven L. Selph. Mr. Selph advised the School Board that it would be "inappropriate" and possibly "prejudicial" for the board to hear the alleged facts of the case because the board would later be required to enter a final order. Mr. Selph advised the board that its only choices were to vote on the Superintendent’s recommendation in a factual vacuum, or to hold a full evidentiary hearing before the board itself. Mr. Selph stated that "the main thing the board has to consider is whether the recommendation is based on just cause for the purpose of approving it subject to the outcome of a hearing." Mr. Selph did not explain to the inquiring board members how they could determine "just cause" when they did not know what Respondent was alleged to have done. Mr. Selph assured the School Board that its adoption of the Superintendent’s recommendation was a mere formality necessary to trigger Respondent’s right to a formal administrative hearing. Comments by School Board members prior to their vote indicate that they accepted Mr. Selph’s opinion that the vote was essentially procedural, a necessary step to secure Respondent’s right to an administrative hearing, and thus the board did not need to know the factual allegations. Mr. Selph did not explain that the School Board’s vote to accept the Superintendent’s recommendation would become final agency action if Respondent did not timely request an administrative hearing. On the basis of the Superintendent’s recommendation that Respondent committed misconduct in office, the School Board voted to terminate Respondent from his assistant principal position and to place Respondent into a teacher’s position during the pendency of any administrative hearing. It is found that the School Board’s action was a perfunctory ratification of a decision made earlier by Mr. Reynolds in consultation with his subordinates and lawyer. While there was a lengthy discussion of procedural matters at the School Board meeting, no discussion of the ultimate facts alleged to constitute misconduct in office, or of any facts at all, was allowed. Thus, the School Board did not and could not assess the merits of Mr. Reynolds’ probable cause determination. The School Board’s vote was simply a vote of confidence in Mr. Reynolds. The undersigned viewed a videotape of the School Board meeting. Respondent addressed the board concerning the denial of due process he believed was about to occur. It is noted that Respondent’s presentation was forceful and articulate, but not disrespectful, loud, angry or abusive. It is also noted that Mr. Reynolds testified that Respondent was "agitated." By letter dated September 10, 1997, Mr. Reynolds formally notified Respondent that his employment as an assistant principal had been terminated and that he would be returned to an appropriate teaching position for the remainder of the 1997-1998 school year. Mr. Reynolds’ letter also made reference to a statement made by Respondent to Mr. Dunn that he could not return to a teaching position at that time and desired to use his accumulated sick leave. The letter informed Respondent that he could use the leave if he provided medical certification from a physician that he was unable to work and the anticipated amount of time he would be away from work. Mr. Dunn, the Assistant Superintendent for Human Resource Services, testified that Respondent was placed in a teaching position because "my hands were tied" by the fact that Respondent had a continuing contract that had to be honored. By letter dated September 14, 1997, Respondent requested an administrative hearing regarding his termination as an assistant principal. The letter also stated that Respondent would provide the requested medical certification. On November 5, 1997, Mr. Wilson wrote on behalf of Superintendent Reynolds to Respondent. Mr. Wilson reminded Respondent of his September 14, 1997, letter promising medical certification to justify his sick leave and of a conversation he had with Respondent on November 3, 1997, during which Respondent indicated he had a doctor’s appointment to obtain the certification on November 17. Mr. Wilson informed Respondent that the physician’s certification must be received by Mr. Londeree on or before November 20, 1997, and that failure timely to file the certification would be deemed an abandonment of Respondent’s employment with the Polk County School Board. Respondent never provided the physician’s certification. Mr. Dunn and Mr. Londeree testified as to a conference call with Respondent, during which Respondent conceded that he was not sick but that he could not come back to work under the circumstances. Respondent confirmed that he did not accept the teaching position because his reputation had been destroyed. He believed that he could not be effective in the classroom because people were afraid of him. By letter dated December 12, 1997, Mr. Reynolds notified Respondent that he had been determined to have abandoned his teacher’s position and that Mr. Reynolds would recommend to the School Board that Respondent’s employment be terminated. At its meeting of January 13, 1998, the School Board voted to terminate Respondent’s employment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a final order reinstating Respondent for the remainder of his assistant principal contract for the 1997-1998 school year, and enter into assistant principal contracts with Respondent for the 1998-1999 and 1999-2000 school years. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 2nd day of March, 2000. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 Timothy G. Schoenwalder, Esquire Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32314 Glenn Reynolds, Superintendent School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33831-0391
Findings Of Fact Calloway was an employee of the Jefferson County School Board during the 1977-78 school year serving as an English teacher at Howard Middle School. Calloway's employment arises by virtue of an annual contract of employment entered into between Calloway and Jefferson County. The term of the employment was a period of ten (10) months beginning August 15, 1977. The contract provides in pertinent part that no further contractual obligation extends beyond June 6, 1978, and that no legal cause is required of the School Board in the event the teacher is not re-employed. At the end of the contract period, it was determined that Calloway's contract not be renewed for the up coming school year. Calloway was advised by Pittman that based upon Calloway's experience, qualifications and certifications, the school would be better served by the placement of a better teacher in the position previously held by Calloway. Pittman assured Calloway that his judgment was based on several factors and was not a reflection on Calloway's character or integrity. During the school year, Calloway wrote a letter to the Monticello News which was published on Thursday, February 16, 1978. The letter criticized certain aspects of the school superintendent's and the school board's administration of the county educational system. There was no evidence upon which to make a finding that Pittman took any action with regard to Calloway because of the letter Calloway had written to the newspaper.
Findings Of Fact Petitioner, Judith A. French (French), was employed full time by Respondent, Department of Health and Rehabilitative Services (Department), as a switchboard operator in Riveria Beach, Florida. On three consecutive workdays, to wit: July 7- 9, 1986, French was absent from her employment without authorized leave. By certified letter dated July 10, 1986, the Department advised French that her absence from work since July 7, 1986, was unauthorized and that, pursuant to Rule 22A-7.10(2), Florida Administrative Code, she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised French of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. French timely petitioned the Department of Administration for review. On August 13, 1986, the Department of Administration accepted French's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing. At hearing, French asserted that her absence was occasioned by a sudden and severe illness she contracted over the fourth of July weekend, which illness she averred rendered her totally incapacitated and unable to contact her employer the week of July 7, 1986. French offered no proof, however, of the cause or nature of her illness but merely testified that she was incapacitated, subject to profuse vomiting, and admitted to a hospital on July 14, 1906, where she was treated for a lack of potassium. While unable to do so personally, French contended that efforts were made on her behalf to advise the Department of her illness. According to Lester Smith (Smith), French's live-in-boyfriend and co-worker at the Department's Riviera Beach office, he made on attempt to call French's supervisor at noon, July 7, 1986, but no one answered the Department's telephone. Smith asserted that his efforts to contact the Department on July 1986, were frustrated by an epileptic seizure he suffered that morning, and the fact that he had to use a pay phone since their phone was out-of-order. Smith did not contend that he was incapacitated by his seizure of July 7, 1986, and offered no further excuse for his failure to notify the Department that he and French would be absent that day. On July 8, 1986, according to French and Smith, their friend Mr. Dudick offered to call the Department concerning their absence, and subsequently advised them that he had been unable to reach their supervisor but had left word with the Department that French and Smith were ill and their telephone out-of- order. Mr. Dudick did not testify at hearing, and there is no record of any such call having been received by the Department. On July 9, 1986, no effort was made to notify the Department that French would be absent from work. The proof established that French's absence from her employment on July 7-9, 1986, was not authorized, and that the Department was not notified that she would be absent due to illness. Consequently, on no less than three consecutive business days her employer was left without the benefit of her services or the notice needed to secure a replacement to perform her duties. While French may have been ill, she offered no proof that would excuse her failure to promptly notify her employer of her incapacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a final order finding that Petitioner, Judith A. French, abandoned her position and resigned from the Career Service. DONE AND ENTERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986 APPENDIX The Department's proposed findings of fact are addressed as follows Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraphs 2-7. COPIES FURNISHED: Judith A. French 2815 Broadway, Apartment #1 West Palm Beach, Florida 33407 K. Stuart Goldberg, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the Respondent committed the violations alleged in the Notice of Specific Charges filed January 10, 2002, and whether the Respondent should be dismissed from her employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Article IX, Section 4(b), Florida Constitution; Sections 230.03(2) and 230.23(5)(f), Florida Statutes. Background Ms. Delice was employed by the School Board as a school bus driver trainee in May 1997. She successfully completed her training and was duly placed on permanent status as a bus driver for the Miami-Dade County school system. Ms. Delice is a member of the American Federation of State, County, and Municipal Employees, Local 1184, and she is subject to the Contract Between the Miami-Dade County Public School and the American Federation of State, County, and Municipal Employees, Local 1184, effective from July 1, 2000, through June 30, 2003 ("Union Contract"). In 1998, when Ms. Delice was working at the School Board's Southern Regional Transportation Center, she came to know Rhonda Ferguson, another bus driver working at this facility. Ms. Ferguson began making overtures to Ms. Delice, asking for her phone number and generally acting, in Ms. Delice's estimation, like a co-worker who wanted to become friends. A co-worker who had overheard a conversation between Ms. Delice and Ms. Ferguson told Ms. Delice that Ms. Ferguson was a lesbian. Ms. Delice became very upset, and, even though Ms. Ferguson had never made any physical or overt verbal advances, Ms. Delice concluded that Ms. Ferguson was harassing her and that she was being subjected to working in a "hostile environment." Ms. Delice told Ms. Ferguson to leave her alone, but she did not complain to her supervisors that, in her estimation, Ms. Ferguson was bothering her. Ms. Delice was subsequently transferred to the Southwest Regional Transportation Center ("the Southwest facility"), and, about eight months later, Ms. Ferguson was transferred to the Southwest facility as well. A co-worker told Ms. Delice that Ms. Ferguson was spreading stories about Ms. Delice to the effect that the two women were having an affair. On January 20, 1999, Ms. Delice confronted Ms. Ferguson in the workplace, and the two women became involved in a verbal and physical altercation. After the altercation, Ms. Delice was temporarily transferred to the Central West Regional Transportation Center ("the Central West facility"). An investigation was conducted, and the charges against Ms. Delice and Ms. Ferguson were substantiated. Although a 30-day suspension without pay was the recommended discipline, it was finally decided that Ms. Delice and Ms. Ferguson would be permanently assigned to the location of their alternate assignments. Accordingly, Ms. Delice was permanently transferred to the Central West facility in February 1999. Although Ms. Delice knew she was "somewhat" emotionally affected by the advances of Ms. Ferguson, it was the transfer to the Central West facility that "turned her whole life upside down."1 Ms. Delice was distressed at the condition of the physical plant at the Central West facility, and she described it as a "boot camp." Ms. Delice complained that the road leading into the facility was narrow and very dark, with rocks on one side and a lake on the other; that the location was unsafe; that there were potholes in the gravel lots where the buses were kept; that the gravel lots turned to mud when it rained and were very dusty when it was dry; that the lighting was non-existent; that she was required to park in the employee parking lot and walk a half-block to the office to pick up her bus assignment and another half-block to her bus, often in the mud; that there were mosquitoes and frogs on the buses, and she had to be careful not to sit on a frog; and that something, maybe asbestos, was coming out of the walls of the employee break room. Ms. Delice blames Ms. Ferguson for her transfer to the Central West facility, and she thinks that she should have been disciplined for the altercation in January 1999 rather than transferred to the Central West facility. Finally, Ms. Delice called Barbara Moss, a District Director of the School Board's Office of Professional Standards, and asked if she could be transferred back to the Southwest facility. Ms. Delice told Ms. Moss that she had transportation problems because she drove an old car that was always breaking down because of the bad roads at the Central West facility and that the Southwest facility was closer to Ms. Delice's home than the Central West facility. Ms. Moss secured a transfer for Ms. Delice back to the Southwest facility, effective in March 2000. Ms. Delice did not mention any emotional problems, stress, or poor working conditions to Ms. Moss. Ms. Delice worked at the Southwest facility until she was suspended by the School Board on October 24, 2001, pending initiation of dismissal proceedings. Absences Each year, school bus drivers receive a copy of the Handbook for School Bus Drivers, Aides and Operations Staff ("Handbook"), and Ms. Delice's supervisor at both the Central West facility and the Southwest facility went over the Handbook with employees at the beginning of each school year. Section 9 of the Handbook describes in detail the attendance policy for transportation employees. A bus driver working for the School Board accrues a total of ten days combined paid sick and personal leave each school year. Between December 1, 1999, and June 1, 2000, Ms. Delice took 64 days of unauthorized leave without pay, 11.5 days of authorized leave without pay, and six days of paid sick/personal leave. Between August 28, 2000, and June 13, 2001, Ms. Delice took 26.5 days of unauthorized leave without pay, 21 days of authorized leave without pay, and ten days of paid sick/personal leave. Ms. Delice was absent without authorization on three consecutive workdays on January 17, 18, and 19, 2001; February 1, 2, 5 and 6, 2001; and May 30 and 31 and June 1, 2001. Between August 28, 2001, and October 24, 2001, the date of her suspension, Ms. Delice had three days of unauthorized leave without pay, one day of authorized leave without pay, and seven days of paid sick/personal leave. Between August 28, 2001, and October 10, 2001, the date Ms. Delice was advised that the superintendent was recommending her termination, Ms. Delice took six days of paid sick/personal leave, but no days of either authorized or unauthorized leave without pay. Reminders and Conferences for the Record On October 25, 1999, Michael Exelbert, a coordinator at the Central West facility, issued to Ms. Delice a Notice of Performance Expectation Requirement, Attendance (Follow-Up Verbal), in which Ms. Delice was issued a verbal reminder of her responsibilities with respect to attendance. She was referred to Article XI, Section 4, page 32, and Article V, Section 27, page 8, of the Union Contract. On December 8, 1999, Mary Murphy, the Director of the Central West facility, issued to Ms. Delice a Notice of Performance Expectation/Requirement, in which Ms. Delice was again reminded of the expectation regarding attendance, specifically with respect to her being absent without leave after not calling or showing up for work on November 15, 17, and 23, 1999. Ms. Delice was again referred to Article XI, Section 4, page 32, and Article V, Section 27, page 8, of the Union Contract. On February 7, 2000, Mr. Exelbert conducted a Conference for the Record with respect to Ms. Delice's "no call/no show" absences without leave on September 13, 15, 19, and 21, 1999; November 15, 17, and 23, 1999; December 16, 1999; and January 3, 2000. As set forth in the summary of the conference, Ms. Delice explained her absences as follows: "You indicated that you had had car problems, had a problem with the staff in Dispatch, and that every once in a while you needed a day off." As a result of documentation provided by Ms. Delice, September 19 and November 23, 1999, were removed as absences without leave. Ms. Delice was referred to Section 9 of the transportation employee's Handbook for the applicable attendance policy. On June 1, 2000, after her March 2000 transfer to the Southwest facility, a Conference for the Record was conducted by Aned Lamboglia, a coordinator at the Southwest facility, with respect to Ms. Delice's unauthorized absences subsequent to September 1, 1999. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified 53.5 days of unauthorized leave without pay, 11 days of authorized leave without pay, and six days of paid sick/personal leave between September 1, 1999, and June 1, 2000; Ms. Lamboglia also noted that Ms. Delice had missed "at least" 10.5 days of work since she was transferred to the Southwest facility in March 2000. As set forth in the summary of the June 1, 2000, conference, Ms. Delice explained her absences as follows: You stated that some of your unauthorized absences were due to the fact that you had serious transportation problems. You were administratively transferred to Central West Transportation and this had caused a serious hardship for you since the vehicle you drove kept breaking down. You also stated that you were not aware that you could provide documentation for authorization of leave time when you did not have sick or personal time. Ms. Lamboglia advised Ms. Delice during the conference that her attendance record was unsatisfactory, and she reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract. She also advised Ms. Delice that failure to improve her attendance could lead to further disciplinary action. On June 1, 2000, Ms. Lamboglia also referred Ms. Delice to the School Board's Employee Assistance Program ("EAP"). Ms. Lamboglia received notification from the clinical coordinator of the EAP, dated July 21, 2000, that Ms. Delice's case had been closed after Ms. Delice failed to attend a scheduled conference and denied that she had any job performance problems. On October 25, 2000, Ms. Lamboglia, then Mrs. Candales, conducted a Conference for the Record with respect to Ms. Delice's unauthorized absences subsequent to June 1, 2000. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified four and one-half days of unauthorized leave without pay, with two and one-half days of the total occurring during the new school year. According to the summary of the conference, Ms. Delice had nothing to say regarding these absences. Ms. Candales reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract, and she advised Ms. Delice that failure to improve her attendance could lead to further disciplinary action. In light of her June 1, 2000, referral of Ms. Delice to the EAP, Ms. Candales did not make a referral after the October 25, 2000, conference. On April 23, 2001, Mrs. Candales conducted a Conference for the Record with respect to Ms. Delice's unauthorized absences subsequent to October 25, 2001. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified approximately 18 days of unauthorized leave without pay. According to the summary of the conference, Ms. Delice explained her unauthorized absences by stating that she continued to experience car problems. Ms. Delice provided Mrs. Candales with documentation, and Mrs. Candales agreed to authorize four days of the 18 days of leave without pay. Ms. Candales reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract, and she advised Ms. Delice that her absences were excessive under Article XI, Section 4, of the Union Contract and could lead to disciplinary action such as termination or non-reappointment. In addition, Ms. Candales referred Ms. Delice to the EAP on April 23, 2001. On June 8, 2001, Ms. Murphy, who had transferred from the Central West facility and was Director of the Southwest facility, conducted a Conference for the Record with respect to Ms. Delice's job performance in the area of attendance. Ms. Murphy noted that Ms. Delice had accumulated 25.5 days of unauthorized leave without pay since the beginning of the school year. According to the summary of the conference, Ms. Delice gave the following explanation: You mentioned during the conference that sometimes your car breaks down and you cannot make it to work. Also, if you are not feeling well you do not come to work. You are currently participating with the District Support Agency, and you are waiting for Mr. Portier to send you to a psychiatrist. You stated that you requested to see a psychiatrist because of the conditions at Central West Transportation. According to you, you began to have attendance problems when you were transferred to "Boot Camp": A.K.A., Central West Transportation. Being at this location caused you to have emotional stress. Prior to going to Central West Transportation, you did not have an attendance problem. You explained that during 1997 through 1999, you did not have an attendance problem. . . . You also mentioned that Mr. Portier's services did not meet your problem because your problems were financial. Ms. Murphy reviewed with Ms. Delice Article XI, Section 4(B) of the Union Contract, which provides that unauthorized absences for three consecutive workdays or for ten days during the previous 12-month period were grounds for termination. Ms. Delice was advised that a copy of the summary of the conference would be sent to the Administrative Director, Jerry Klein, and to the Office of Professional Standards for review and possible disciplinary action. In a memorandum dated June 20, 2001, Mr. Klein recommended to Ms. Moss at the Office of Professional Standards that Ms. Delice be dismissed from her employment with the School Board because she had "accumulated 25.5 days of unauthorized leave without pay." On July 23, 2001, Ms. Moss conducted a Conference for the Record with respect to Ms. Delice's "excessive absenteeism; non-performance and deficient performance of job responsibilities; violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4E-1.01, Absences and Leaves." Ms. Delice's record was reviewed, and her future employment status with the School Board was discussed. Ms. Moss identified total absences between September 1, 2000, and June 8, 2001, of 54.5 days, consisting of 23 days of unauthorized leave without pay, 21.5 days of authorized leave without pay, six personal, and four sick days. According to the summary of the conference, Ms. Delice explained her unauthorized absences as follows: "'My problem with attendance started when I was sent to the 'boot camp' at Central West Transportation. That center is very depressing and dusty.'" In response to the observation that the purpose of the conference was to discuss Ms. Delice's attendance problem at the Southwest facility, Ms. Delice replied: "'I'm just getting over the conditions I was subjected to at Central West Transportation. I feel that I am not being given a chance to improve.'" Ms. Delice was advised that, once a review of the relevant materials was completed, she would be notified of the recommended disciplinary action. Ms. Moss further advised Ms. Delice that "[a]ll disciplinary action(s) shall be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record." Ms. Delice was referred through the EAP to Dr. Lynne Schettino, a psychologist. Dr. Schettino initially assessed Ms. Delice on August 17, 2001, and Dr. Schettino saw her in individual sessions on August 28, 2001, and September 11, 2001; Ms. Delice cancelled two additional scheduled appointments with Dr. Schettino and did not reschedule. Ms. Delice identified absenteeism as a major problem, attributing it to "a transfer to another location [that] had been very stressful for her and that this resulted in significant anxiety, depression and avoidant behavior."2 Dr. Schettino determined that Ms. Delice's treatment should focus on coping with work stressors and developing interpersonal skills "to allow appropriate adjustment to the work place,"3 but Dr. Schettino did not have time to reach a diagnosis or develop a treatment plan for Ms. Delice. Ms. Delice entered into a "contract" with Dr. Schettino regarding her attendance, and, although she took six days of sick/personal leave between August 28, 2001, and October 10, 2001, Ms. Delice had no days of authorized or unauthorized leave without pay. In a letter dated October 10, 2001, Ms. Delice was notified by the Superintendent that he was recommending to the School Board that she be suspended from her employment and dismissal proceedings initiated against her for just cause, including but not limited to: excessive absenteeism; abandonment of position; non-performance and deficient performance of job responsibilities; violation of School Board Rules 6Gx13-3E- 1.10, Transportation-Specific Procedures (Attendance Policy); 6Gx13-4A-1.12, Responsibilities and Duties; 6Gx13-4E-1.01, Absences and Leaves." The Superintendent also noted that the dismissal recommendation was taken in accordance with, among other things, Article XI, Section 4(B) and (C), of the Union Contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Elza Delice guilty of abandonment of position and excessive absenteeism, sustaining her suspension effective October 24, 2001, and terminating her employment. DONE AND ENTERED this 30th day of May, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2002.
