The Issue The issues in this case are whether Respondent, Daniel Presmy, committed the violations alleged in a five-count Administrative Complaint issued by Petitioner, Dr. Eric J. Smith, as Commissioner of Education, on March 30, 2009, and, if so, what disciplinary action should be taken against his Florida educator’s certificate.
Findings Of Fact The following findings of fact were alleged in the Administrative Complaint and stipulated to by the parties: The Respondent holds Florida Educator’s Certificate 850876, covering the area of Elementary Education, which was valid through June 30, 2008. At all times pertinent hereto, the Respondent was employed as a Third Grade Teacher at Roosevelt elementary School in the Palm Beach County School District. On or about December 11, 2006, Respondent struck D.H., a twelve-year-old male student, against the will of D.H. On or about July 30, 2007, Respondent pled and the court adjudicated him guilty of one count of Battery in violation of Florida Statutes Section 784.03. Conviction of Battery in violation of Florida Statutes Section 784.03 when the victim is a minor now disqualifies an individual from holding an Educator’s Certificate under Section 1012.315 of the Florida Statutes. The following findings of fact were made in the School Board Decision: Daniel Presmy (hereinafter "Presmy" or "Respondent") has been a teacher for six years with Palm Beach County School Board (hereinafter "School Board"). He has always taught elementary students. Presmy has had no prior disciplinary action taken against him by the Superintendent of Palm Beach County School Board or the School Board. Presmy was a certified teacher in the School Board of Palm Beach County. On December 11, 2006, while in his classroom Presmy was teaching his third- grade class, and three students who were not students in his classroom showed up and disrupted the class. Presmy requested that the students leave his room. The students did not leave upon the initial request. One student informed Presmy that a student in the class had his eraser. Presmy then asked his class who had the eraser. Subsequently, an eraser flew to the front of the classroom and fell on the floor. Presmy picked up the eraser and handed the eraser to the student who had requested it. Presmy turned back to his class and was hit on the temple with the eraser. Presmy turned back around toward the student who he had given the eraser to and the student raised his hand. Again, Presmy told the student to leave. The student continued to stand in the middle of the doorway to Presmy's classroom and would not leave. While Presmy remained in his classroom, he used his fingertips to push the student's head and told the student (hereinafter "student victim") to "leave and don't come back here." Presmy "didn't think that [he] was doing anything wrong by telling him to leave with a gesture to leave." Presmy's reaction of touching the student was inappropriate. However, no evidence was demonstrated that the student was hurt during the incident. Presmy did not press the buzzer or contact and ask for any assistance regarding the incident because he didn't think it was necessary. On December 11, 2006, Officer Price was paged regarding the incident and she returned the call. She was informed that a student reported that he had been hit by a teacher at Roosevelt. Price interviewed the student victim and witnesses regarding the incident with Presmy. The School Board initiated an investigation into the incident. During the investigation, Respondent met with Detective Walton. Presmy told the investigator that he pushed the student victim in the head and told him to leave. [Endnote omitted]. The investigator concluded his investigation and presented the case to the State Attorney’s Office for review. As a result, Daniel Presmy was criminally charged with Battery as a violation of Florida Statutes. On August 2, 2007, Presmy pled guilty to the battery charge as a negotiated plea agreement so as not to put himself and his family through a lengthy trial and under the advice of his lawyer. His sentence was 45 hours community service, 12 weeks of anger management, 12 months of probation with early termination after six months and a $595 court fee. Petitioner alleges Respondent, by his conduct, violated School Board Policies 0.01, 1.013 and 3.12, and State Board of Education Rules 6B-1.001 and 6B-1.006. Subsequently, the School Board of West Palm Beach County at a meeting on October 24, 2007, voted to suspend Presmy without pay effective October 25, 2007, and initiated dismissal proceedings. Although included as a Conclusion of Law in the School Board Decision, the following fact was also found in the School Board Decision: “There is no evidence that Presmy's physical contact with the student in any way impaired his effectiveness in the school system.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission: Finding that Daniel Presmy violated Sections 1012.795(1)(e) and (i), Florida Statutes (2007), and Section 1012.795(1)(n), Florida Statutes (2008-2009), as alleged in Counts 1, 3/5, and 4 of the Administrative Complaint, as amended; Dismissing Count 2 of the Administrative Complaint, as amended; and Permanently revoking Mr. Presmy’s educator’s certificate. DONE AND ENTERED this 19th of May, 2010, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2010. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Education Practices Commission 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Ms. Williams has been employed by the School Board for 15 years and is currently a 12-month custodian at Longwood Elementary School (School), located in Seminole County, Florida. As a 12-month custodian, Ms. Williams is allowed sick and annual leave. Ms. Williams requested leave beginning July 7, 2010, to September 29, 2010, for back surgery. On August 10, 2010, the School received a letter dated July 8, 2010, from Ms. Williams's physician, advising that Ms. Williams had undergone surgery for a spinal disorder on July 7, 2010, and would need 12 weeks to recover prior to returning to work. On October 1, 2010, Ms. Williams called the School and advised that she was not able to return to work and requested leave from September 30, 2010, through October 28, 2010. Her physician sent a letter dated September 30, 2010, to the School, advising that Ms. Williams would need an additional four weeks for recovery. By this time, Ms. Williams had exhausted all her paid leave and was on leave without pay. Ms. Williams was unable to come to the School to sign the application for leave; however, the leave was approved by the principal of the School, Virginia Fisher (Ms. Fisher), who was Ms. Williams's direct supervisor. By November 2, 2010, Ms. Williams was still unable to return to work, and her physician sent another letter to the School, advising that Ms. Williams would need an additional four weeks for recovery. Ms. Williams requested leave from November 2, 2010, to November 30, 2010. Again, Ms. Williams was unable to come to the School to sign the application for leave, but it was approved by Ms. Fisher. By December 1, 2010, Ms. Williams was still unable to return to work and requested leave from December 1, 2010, through January 3, 2011. Her physician sent a letter to the School, stating that Ms. Williams needed an additional four weeks for recovery. Ms. Williams was unable to come to the School to sign the application, and the leave request was approved by Ms. Fisher. Ms. Williams's physician sent a letter dated December 27, 2010, to the School, stating that Ms. Williams had not quite reached maximum medical improvement with respect to her recovery and that he would need to see her in four weeks for reevaluation. Ms. Williams signed and submitted an application for leave for January 4, 2011, through January 24, 2011. The leave was approved. Ms. Williams's physician submitted a Return to Work/School Certificate dated January 21, 2011, to the School, stating that Ms. Williams would be able to return to work on January 24, 2011, with the following restrictions: "light duty with no repetitive lifting over her head, lifting restriction of = 30 lbs." Ms. Williams discussed the issue of light duty with Steve Bouzianis (Mr. Bouzianis), director of Human Resources, Staffing and Operations for the School Board. She told him that she had been advised by staff at the School that she needed to come back to work or submit a request for additional leave. Mr. Bouzianis informed her that she could not do the custodial job with the restrictions set by her physician. Ms. Williams was advised to submit a request for leave and was told that it would be approved. By February 18, 2011, Ms. Williams had not submitted a request for leave or submitted a letter from her physician stating that she needed to be absent from work due to an illness. By letter dated February 18, 2011, Ms. Fisher enclosed a leave request form and directed Ms. Williams to complete the form and return it to her, along with a physician's statement substantiating Ms. Williams's need for her absences no later than February 23, 2011. Ms. Fisher further advised that, if Ms. Williams could not obtain a physician's statement, Ms. Fisher would approve the leave for the remainder of the year as personal leave without pay. Ms. Fisher advised in the letter of the consequences for failure to request leave and stated: Should you fail to return to me your signed request for leave form and the supporting physician's statement (if applicable) by the date identified above [February 23, 2011], you will be considered as absent from duty without approved leave, and in violation of adopted School Board policy. In that event, the Superintendent of Schools will recommend to the School Board that you be suspended from your duties and further that your employment with the School Board of Seminole County, Florida[,] be terminated. The School received a letter dated February 22, 2011, from Ms. Williams's physician, who stated that Ms. Williams could return to work on January 24, 2011, with the same restrictions previously listed on the Return to Work/School Certificate. On February 23, 2011, Cynthia Frye (Ms. Frye), who is Ms. Fisher's assistant, attempted to call Ms. Williams at her sister's telephone number, which is the number that Ms. Williams had given the School to contact in case of an emergency. At the time, Ms. Williams was living with her sister and staying some of the time with her son. Ms. Frye called at 2:37 p.m., and got no answer, and called again at 3:15 p.m., at which time she spoke to Ms. Williams's sister. Ms. Frye told the sister that it was important that Ms. Williams call Ms. Frye. Ms. Williams had not called Ms. Frye by the morning of February 24, 2011. Ms. Frye attempted to call Ms. Williams twice during the morning of February 24, 2011, and three times during the afternoon. On the last call, she left a message with Ms. Williams's sister that it was imperative that Ms. Williams call Ms. Frye that night or Ms. Frye could not help Ms. Williams. By March 4, 2011, the School still had not heard from Ms. Williams. Ms. Fisher sent Ms. Williams a letter dated March 4, 2011, stating that, because Ms. Williams had not contacted the School to request leave, Ms. Williams's absences since January 25, 2011, were considered as absences from duty without approved leave. Ms. Fisher advised Ms. Williams that, based on Ms. Williams's third and continuing absences, Ms. Fisher would recommend to the superintendent of schools that Ms. Williams's employment with the Seminole County Public Schools be terminated. When questioned at the final hearing concerning her reasoning for not requesting leave, Ms. Williams indicated that she wanted to work, but the School would not let her come back to work with light duty restrictions. She contacted her attorney and, based on his advice, did not request leave. Ms. Williams's employment is governed by the Official Agreement between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc., and the School Board (Agreement). Article VII of the Agreement provides: Section 4. * * * B. A regular employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. * * * Section 5. A. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following provided that just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employees leaves the work site after the equipment, if applicable, has been checked in Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools, or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. * * * Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. * * * Section 15. Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension without pay. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommendation for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Ms. Williams's employment with the School Board. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue The issue in this case is whether just cause exists for Petitioner, the St. Lucie County School Board, to terminate the employment of Respondent, Josephine Knight.
Findings Of Fact Petitioner is the School Board of St. Lucie County, Florida (hereinafter referred to as the "School Board"). Respondent, Josephine Knight, is employed by the School Board pursuant to a professional services contract. Ms. Knight has been employed as a teacher for approximately 15 years. At all times relevant to this matter, Ms. Knight was assigned to work at St. Lucie Elementary School (hereinafter referred to as the "Elementary School"). At all times relevant to this matter, the principal of the Elementary School was Dr. Jayne Hartman. Prior to the 1997/1998 school year, Dr. Hartman interviewed Ms. Knight for a position at the Elementary School and subsequently recommended her for a position. Ms. Knight was assigned as a temporary fourth grade teacher during the 1997/1998 school year. Ms. Knight was assigned as a third grade teacher for the 1998/1999 school year. Ms. Knight had been assigned to fourth grade class while employed by the School Board until this year. Ms. Knight was disappointed with her new assignment. During her first two years of assignment to the Elementary School, Dr. Hartman observed Ms. Knight and made suggestions for improvement. Rather than accepting Dr. Hartman's efforts to constructively criticize her, Ms. Knight grew resentful and defensive. Although the evidence failed to support Ms. Knight's characterization of her treatment during the 1997/1998 and 1998/1999 school years, Ms. Knight felt that she was being subjected to "unremitting harassment from her principal." Ms. Knight responded to Dr. Hartman's criticism by attempting to transfer from the Elementary School to another school within the School Board's district. Ms. Knight was unsuccessful in finding another school that would accept her. Dr. Hartman recommended Ms. Knight's reappointment at the Elementary School for the 1999/2000 school year. Prior to the commencement of the 1999/2000 school year Dr. Hartman directed all staff, including Ms. Knight, to attend a staff breakfast on August 16, 1999. The breakfast was to be followed by a meeting of all teachers in the media center of the Elementary School. Dr. Hartman had arranged for teachers assigned to teach the same grade to sit together during the meeting and had prepared handouts for each teacher. Those handouts were placed at each teacher's assigned seat. Ms. Knight failed to attend the breakfast on August 16, 1999. She did attend the teachers' meeting, but arrived late and refused to sit at the table with the other third grade teachers. On August 18, 1999, Ms. Knight again arrived late for a staff meeting. Later in the morning of August 18, 1999, Ms. Knight wrote a note to Dr. Hartman informing her that she intended to use comp time during lunch. Rather than follow school policy, Ms. Knight left during lunch without first determining whether her use of comp time had been authorized. On August 19, 1999, Dr. Hartman spoke to Ms. Knight in the morning and told her that she needed to speak with her. Ms. Knight went to see Dr. Hartman later that same day. Dr. Hartman verbally counseled Ms. Knight. Dr. Hartman spoke to Ms. Knight about her lateness in arriving at staff meetings, her use of comp time prior to getting approval, and her refusal to sit with other third grade teachers as she had been directed. Dr. Hartman asked Ms. Knight to explain her actions, but Ms. Knight took notes and refused to answer Dr. Hartman. Due to Ms. Knight's misconception that she was being harassed by Dr. Hartman and in anticipation of the August 19, 1999, counseling session, she had prepared a letter of resignation the night before the August 19th meeting with Dr. Hartman. During the August 19th meeting, Ms. Knight gave Dr. Hartman the letter (hereinafter referred to as the "Resignation Letter"). In pertinent part, Ms. Knight wrote the following in the Resignation Letter: The intended purpose of this letter is to inform you of my resignation from my present position as a third grade teacher so soon after starting my fifteenth year in the system. After considering my remaining options, I decided to depart from this position because of YOU and the lack of professionalism displayed on your behalf. I have been subjective [sic] to an extraordinary amount of harassment every [sic] since I've been under you supervision. This included lack if [sic] administrative support, extreme and undue stress, your trifling and vindictive ways, and last but not least, your prejudice and racist attitude towards students, minorities, and me. These are conditions in which no one should be subjective [sic] to in the workplace. In fact, it seems to almost define going postal. You and I know the countless times I have tried to relocate to another school unsuccessfully. Which means as [sic] September 2, 1999 I will be resigning. [Emphases added]. The accusations Ms. Knight made in the Resignation Letter concerning Dr. Hartman, to include the allegations that she knew of Ms. Knight's unsuccessful efforts to transfer, are incorrect. Those accusations were the result of Ms. Knight's inability to deal with constructive criticism. After fully considering the Resignation Letter and Ms. Knight's negative attitude toward her, Dr. Hartman reasonably concluded that Ms. Knight had threatened her and she reasonably became concerned for her personal safety. On the evening of August 19, 1999, Dr. Hartman contacted Russell Anderson, the Assistant Superintendent of Human Resources, and reported the incident to him. Dr. Hartman also contacted Jane Grinstead, her immediate supervisor, and read the Resignation Letter to her. Finally, Dr. Hartman contacted Dave Morris, the Coordinator of Safety/Security for the School Board, and advised him of Ms. Knight's reference to "going postal." The morning of August 20, 1999, School Resource Officer McGee met with Dr. Hartman. Officer McGee was assigned to stay with Dr. Hartman the entire day because of the threat contained in the Resignation Letter. Mr. Russell, Dr. Hartman, and Officer McGee met with Ms. Knight and a union representative on August 20, 1999, to discuss the Resignation Letter. When asked about her reference to "going postal," Ms. Knight admitted that she understood that it meant to "kill or shoot your boss," or words to that effect. Following the meeting of August 20, 1999, a Friday, Ms. Knight was informed that she would be placed on temporary duty assignment from Monday, August 23, 1999, until the effective date of her resignation, September 1, 1999. On Monday, August 23, 1999, Ms. Knight withdrew her resignation. Because it had not been approved by the School Board, the resignation was considered rescinded. In light of the threat of violence contained in the Resignation Letter, the School Board informed Ms. Knight on August 24, 1999, that she was suspended without pay pending a review and final resolution of the matter. Based upon a review of Ms. Knight's personnel file, Mr. Russell concluded that Ms. Knight should be terminated from employment with the School Board. In addition to the Resignation Letter, Mr. Russell considered certain incidents described in paragraph 7 of a Statement of Charges to Terminate Respondent Josephine Knight's Employment with Petitioner (hereinafter referred to as the "Statement of Charges"). Mr. Russell conferred with Dr. William Vogel, the Superintendent of Schools, concerning the matter. Mr. Russell recommended that Ms. Knight should be terminated from employment with the School Board. By letter dated October 6, 1999, Dr. Vogel informed Ms. Knight that he would be recommending her termination from employment to the School Board due to her "violation of School Board Policies." Ms. Knight timely requested a formal administrative hearing to contest Dr. Vogel's decision. The Statement of Charges further defines the basis for the School Board's action in this case: That the foregoing acts as set forth in this statement and attached exhibits, constitutes just cause under Fla. Stat. s 231.36(1)(a) to terminate Josephine Knight's employment with the St. Lucie County School Board. See Fla. Stat. s 231.36 and School Board policy 3.57 attached as Exhibit O. School Board policy 3.57 provides, in pertinent part, the following anti-violence in the workplace policy: All employees will refrain from any speech, conduct, activity, or behavior of any type that is reasonable interpreted as abusive, profane, intolerant, menacing or intimidating. No speech, behavior, activity or other conduct shall occur or be made by any employee where it is reasonably interpreted that the primary motivating intent is to intimidate, threaten or abuse any person in the workplace. The School Board has zero tolerance for violations of this policy. Any person employed by the School Board who communicates a threat of violence to any other School Board employee is subject to termination. The particular incidents which the School Board considered in concluding that there was just cause for Ms. Knight's termination and that the foregoing policy had been violated by Ms. Knight included the comment about "going postal" in the Resignation Letter and the incidents described in paragraph 7 of the Statement of Charges. While the incidents described in paragraph 7 of the Statement of Charges may indicate a lack of judgment, unacceptable treatment of students, and a hot temper on Ms. Knight's part, they are not relevant in considering whether Ms. Knight displayed conduct contrary to School Board policy 3.57 or just cause. Ms. Knight's Resignation Letter, however, does support the School Board's decision. Based upon the events of August 16 and 18, 1999, Dr. Hartman reasonably concluded that Ms. Knight's comment about "going postal" in the Resignation Letter was primarily motivated by an intent to "intimidate, threaten or abuse" her. The day after the Resignation Letter was provided to Dr. Hartman, Ms. Knight admitted to Dr. Hartman and Mr. Russell that she knew what the terms meant and no other reasonable explanation has been offered by Ms. Knight to explain why she made the comment. Ms. Knight's suggestion at hearing that she was merely trying to get the School Board's attention so that she would be transferred to another school was not convincing and, even if true, would not diminish the reasonableness of Dr. Hartman's reaction to the threat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Lucie County School Board finding just cause for the termination from employment by the School Board of Josephine Knight. DONE AND ENTERED this 18th day of August, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 18th day of August, 2000. COPIES FURNISHED: Elizabeth Coke, Esquire J. David Richeson & Associates, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Lorene C. Powell, Esquire Florida Education Association 1718 East 7th Avenue, Suite 301 Post Office Box 5675 Tampa, Florida 33675 Dr. William Vogel, Superintendent St. Lucie County School Board 2909 Delaware Avenue Fort Pierce, Florida 34947 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 101 Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent, Duval County Public Schools (DCPS), violated the rights of Petitioner, Katherine E. Otto, under the Florida Civil Rights Act, chapter 760, Florida Statutes.
Findings Of Fact Ms. Otto filed a Complaint with FCHR, alleging race, sex, and age discrimination against DCPS, having been employed by the school district as a school teacher from December 2009 until September 2010. The Complaint alleges that Dr. Alvin Brennan, the principal of the Forrest High School, where Ms. Otto worked as a teacher: (a) announced at a staff meeting that he "prefers all black male young teachers"; (b) announced at another staff meeting that "anyone who takes off a Friday or a Monday . . . will be fired"; (c) verbally harassed Ms. Otto; and (d) discharged her for calling in sick. The face of the Complaint shows that it was signed by Ms. Otto on October 24, 2010 - only weeks after the last date of alleged discriminatory conduct on September 8, 2010. However, the "date stamp," which also appears on the face of the Complaint, shows that it was not received by FCHR until October 25, 2011. Notably, FCHR sent to DCPS a "Notice of Filing of Complaint of Discrimination" on November 10, 2011, which was stamped as received by DCPS on November 16, 2011. At the hearing, Ms. Otto could not explain the apparent delay of exactly one year and one day between the date she signed the Complaint and the date it was stamped as received by FCHR. Ms. Otto testified that she never actually typed the Complaint. Further, she stated the typed Complaint was inconsistent with a handwritten version she originally submitted to FCHR "a month or two before" October 24, 2010. Surmising at the hearing that "someone" at FCHR must have typed the Complaint, Ms. Otto testified that she signed and returned the document even though it showed that she was 11 years older than her actual age of 50 years. Ms. Otto's Petition for Relief contains accusations about harassment and "racists remarks" by Dr. Brennan, and adds that he and other DCPS personnel "committed purjery to [the Commission]" [sic] during its investigation of the Complaint. Unlike the Complaint, the Petition for Relief also states that Ms. Otto was "was fired for no reason" as opposed to being fired for calling in sick. At the final hearing, Ms. Otto testified that she did not know why she was fired, and it was only "possible" that she was fired due to her race, gender, or age. Ms. Otto testified that her Complaint and Petition were based on events in August and September 2010, shortly after Dr. Brennan became the principal of Forrest High School. By the end of the 2009-2010 school year, Forrest High School was identified as "critically low performing," having received consecutive "school grades" of "F" or "D" over the preceding school years. The District was, therefore, required to treat Forrest High School as a "turn-around school," and replace/"reconstitute" much of its staff and administrative team. Dr. Brennan, a veteran educator and administrator of 27 years, was selected by the superintendent to replace the principal at Forrest High School at the beginning of the 2010-2011 school year, since he had a successful track record for improving other low-performing schools. Dr. Brennan conducted various staff meetings just before and during the first two weeks of the school year. According to Ms. Otto, Dr. Brennan stated at one such meeting that anyone who took a Friday off would be fired. Ms. Otto testified that Dr. Brennan stated at another meeting that he prefers to hire young African-American men. Ms. Otto thereafter "felt like [she] was being harassed, discriminated against because [Brennan] was just going after white women." Despite these negative "feelings" about Dr. Brennan, Ms. Otto never made a complaint to the school district about him or his comments. Ms. Otto stated that she privately met with Dr. Brennan on only two occasions. During the first private meeting at the beginning of the 2010-2011 school year, Dr. Brennan "yelled" at Ms. Otto for speaking with state officials who visited Forrest High School due to its "turn•around" status. The second private meeting was on September 8, 2010, when Dr. Brennan purportedly "harassed" Ms. Otto for missing lesson plans, and "yelled" that she was fired. In the days leading up to the September 8 conference, Dr. Brennan and Assistant Principal Jeravon Wheeler visited Ms. Otto's class and warned her about missing lesson plans. At all times, Ms. Otto was aware that she was required to have lesson plans readily available in her class. During a scheduled classroom observation on August 31, 2010, Ms. Wheeler (once again) noted Ms. Otto's lack of lesson plans. A post-observation conference was to take place on Friday, September 1, 2010. There is conflicting evidence as to whether Ms. Otto was present on that date. The record contains a post-observation "teacher assessment instrument" which Ms. Otto apparently signed and dated on September 1, 2010. However, Ms. Otto claims to have called in sick after her observation and did not return to the school until September 8, 2010. When summoned to Dr. Brennan's office on the morning of September 8, 2010, Ms. Otto assumed he wanted to discuss her illness-related absence and her discussions with "people from the State." Ms. Wheeler also attended the September 8 conference with Ms. Otto and Dr. Brennan. Contrary to Ms. Otto's view, Dr. Brennan and Ms. Wheeler testified that the September 8 conference was actually called to: (a) discuss the classroom observation; present a "non-compliance letter" for Ms. Otto's repeated failure to provide lesson plans; and (c) place her on a "Success Plan" formulated to improve her overall teaching performance. Ms. Otto walked out of the September 8 conference before Dr. Brennan had the chance to provide her with the Success Plan and non-compliance letter. Dr. Brennan's contemporaneous handwritten notes on the non-compliance letter indicated that Ms. Otto abruptly quit during the September 8 conference and "walked off the job." Ms. Otto testified that she left the September 8 conference because Dr. Brennan was screaming at her and yelled that she was fired. She denied, however, that Dr. Brennan made any comments about race, gender, or age at that time. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan neither raised his voice nor stated that Ms. Otto was fired during the September 8 conference. Rather, according to Dr. Brennan and Ms. Wheeler, it was Ms. Otto who became indignant during the September 8 conference, and who abruptly quit and walked out of the school after "throwing" her district-issued laptop on the desk of Dr. Brennan's assistant. Ms. Otto testified that she ultimately submitted lesson plans at some point after her August 31, 2010, observation, though that was disputed by Dr. Brennan. Regardless, Ms. Otto admitted during the hearing that she was "unprepared" during Ms. Wheeler's observation and the lesson plans entered into the record which she purportedly prepared for the August 31 observation were incomplete and inadequate. Dr. Brennan and Ms. Wheeler concurred that the lesson plans presented at the hearing were defective. Ms. Otto testified that she contacted a lawyer with the teacher's union immediately after the September 8 conference. Ms. Otto thereafter learned that Dr. Brennan did not have the authority to unilaterally fire her. Nevertheless, Ms. Otto advised the union lawyer that she would not go back to the school in any event because she was "allergic to it." Ms. Otto testified that the union lawyer gave her assurances that she would be reassigned to another school. These and other statements purportedly made by the union lawyer amounted to hearsay and were not corroborated by other, independent evidence. Shortly after the September 8 conference, Ms. Otto received from the school district a letter dated September 9, 2012, which indicated its recognition of Ms. Otto's resignation and encouraged her to contact the sender (Ms. Dawn Gaughan) with any questions. Ms. Otto did not respond to the September 9, 2012, letter, assuming that the union lawyer was securing her another teaching position in a different school. Ms. Otto testified that she called in substitutes on the days immediately following the September 8 conference using the school district's automated telephone system. However, she also stated that the personal identification number she needed to access the system was invalid at the time of her departure from the school. Having lost faith in the union lawyer's assurances, Ms. Otto testified that she eventually spoke with the school district human resources' personnel about the September 8 conference, but could not remember when that occurred. Ms. Otto subsequently filed a claim for unemployment compensation which was rejected on the grounds that she voluntarily resigned from her position. However, an Unemployment Compensation Appeals Referee ultimately determined that Ms. Otto was entitled to compensation because (during a telephonic hearing on the matter) the school district presented inadmissible hearsay to debunk Ms. Otto's assertion that she had been fired. At the hearing, Ms. Otto presented the testimony of Ms. Judith Julian, who claimed that she was "forced to resign" due to harassment by Dr. Brennan and Ms. Wheeler. Ms. Julian stated that Dr. Brennan "harassed" her by forcing her to park in the teacher's parking area, and Ms. Wheeler harassed her by "following" Ms. Julian on campus during a phone call. Ms. Julian had "no idea" whether such "harassment" was motivated by any animus toward her gender, age, or race, and also commented that she was "replaced" by a male Caucasian. According to Ms. Julian, lesson plans: (a) are "absolutely" important; (b) should be available at all times; and are part of a teacher's contractual duties. Ms. Julian testified that the only personal interaction she had with Dr. Brennan was during a classroom observation when Dr. Brennan stated that she was "a great teacher." Ms. Julian stated that she never heard Dr. Brennan make statements about Ms. Otto's race, gender, or age. Ms. Julian did not attend and, therefore, could not comment on the September 8, 2010, conference. She did, however, recall statements purportedly made by Dr. Brennan at a staff meeting regarding a preference to hire African-American teachers. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan made no such announcement, though he did discuss the need for a staff which reflected the demographics of the community served by Forrest High School. Dr. Brennan also presented statistics showing that his hiring decisions had no appreciable impact on staff demographics at the high school. Rather, African-American staff members increased by only seven percent and the percentage of male teachers at the school actually decreased between the 2009-2010 and 2010-2011 school years. Regardless, the testimony and evidence of record show that school principals do not have unilateral authority to terminate a teacher. The testimony offered by Dr. Brennan and Ms. Wheeler was consistent with contemporaneous notes and statements they prepared in September 2010 as well as other written statements they later prepared for the School District's Office of Equity and Inclusion in November 2011. The collective bargaining agreement between the school district and the teachers' union, Duval Teachers United (DTU), stresses the importance of lesson plans and the expectation that teachers shall have them at all times. The agreement also provides that insubordinate conduct and failure to prepare lesson plans merit discipline up to and including dismissal. Further, the collective bargaining agreement also contains school district policies against harassment and directions on how to process complaints. Ms. Otto was aware of these policies and procedures, but never lodged any complaints against Dr. Brennan with school district officials. Based on the testimony and evidence of record, the greater weight of the evidence demonstrates that Ms. Otto resigned from her position during a September 8, 2010, conference with Dr. Brennan and Ms. Wheeler. Further, the evidence shows that Ms. Otto failed to provide timely and complete lesson plans despite several warnings from her superiors. This failure alone would support dismissal, as would Ms. Otto's insubordinate conduct or abandonment of her post. The Employment Complaint of Discrimination, filed with FCHR by Ms. Otto appears to be signed and dated by her on October 24, 2010, only 46 days after the last incident giving rise to her claim occurred. However, the date stamp from FCHR on that document is for October 25, 2011, more than 365 days after the September 8, 2010 incident. No explanation was given for this discrepancy in the dates on the complaint giving rise to this matter. Ms. Otto testified at the hearing that she "didn't care which way this case goes" and was "happy" just to be there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Katherine E. Otto's Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine E. Otto Apartment 407 7740 Plantation Bay Drive Jacksonville, Florida 32344 Katherine E. Otto 785 Oakleaf Plantation Parkway, Unit 814 Orange Park, Florida 32065 David J. D'Agata, Esquire Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether just cause exists to suspend Respondent from her employment with the Broward County School Board.
Findings Of Fact Background Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times relevant to this proceeding, Respondent was employed as an art teacher at Western High School ("Western High"). Respondent's career with the School Board, which spans some 21 years, has not proceeded entirely without incident: on January 31, 1997, Respondent uttered profanity in the presence of her students, which resulted in the issuance of a written reprimand that directed her to "cease and desist from inappropriate remarks"; several months later, Respondent's further use of colorful language led to a second written reprimand; and, in August 2009, Respondent agreed to serve a three-day suspension "for inappropriate language." The School Board now seeks to suspend Respondent for five days based upon an allegation that, on August 16, 2013, she used profanity and "aggressively grabbed" a female student's arm during an episode in Western High's parking lot. The facts relating to the instant charges are recounted below. Instant Allegations On the morning of August 16, 2013——the final weekday before the start of the 2013-2014 school year——Respondent arrived at Western High's campus to place the finishing touches on her classroom. On several occasions throughout the day, one of Western High's assistant principals announced that the school's parking lot would be locked at 5:30 p.m. The final such warning, which was made at 5:15 p.m., prompted Respondent to exit the building approximately five minutes later. As she headed toward her vehicle, Respondent (accompanied by her mother, Carol Fischer, herself a longtime educator) noticed several groups of students decorating parking spaces in the school lot. As explained during the final hearing, the students' presence was not unusual, for incoming seniors at Western High were authorized, pursuant to a school fundraiser, to "purchase" a parking space and adorn it as each saw fit. Mindful that the school gate would soon be locked, Respondent walked toward the groups and, from a distance of approximately 50 yards, loudly directed them to pack up their belongings and leave the campus. Each of the groups complied, save for one, which prompted Respondent to approach the stragglers and repeatedly announce——with diminishing volume as she made her way closer——that they needed to go home. Suffice it to say that these importunings had no discernable effect on the group's activities; as a result, Respondent continued toward the parking spot where the students were working. Now in their immediate vicinity, Respondent informed the group (which included two female students, N.S. and T.C., both of whom were incoming seniors at Western High) that they had two minutes to gather their possessions and leave the campus. During the ensuing interaction, T.C. began to argue with Respondent and, to make matters worse, acted as if she intended to continue painting. Her patience understandably waning, Respondent reached toward T.C. and, in a non-violent fashion, placed her hand on the student's upper arm. This brief physical contact, intended to secure T.C.'s complete attention and gesture her in the direction of the exit, was instantly met with a vocal objection. Respondent immediately reacted by stepping backwards,1/ at which point the group began to gather up the painting materials. T.C. and the other students departed the parking lot a short time later. Contrary to the complaint's allegations, the credible evidence demonstrates that, although Respondent addressed the students with an elevated voice (but only as she approached from a distance), she at no point used profanity or any other inappropriate language.2/ Further, the record is pellucid that Respondent's momentary, gesturing contact with T.C. was completely innocuous and in no way constituted an "aggressive grab."3/ Indeed, T.C. acknowledged during her final hearing testimony that Respondent plainly intended no harm.4/ Finally, and with respect to the charge of insubordination, there has been no showing that Respondent's behavior ran afoul of any direct order. Although the School Board attempted to prove the existence of a "no touching whatsoever" rule, the testimony on that point was internally contradictory and ultimately unpersuasive. In any event, and as discussed shortly, a general policy——i.e., one applicable to all employees——does not constitute a direct order for the purpose of sustaining an insubordination charge. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent is not guilty of misconduct in office. It is determined, as a matter of ultimate fact, that Respondent is not guilty of insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: exonerating Respondent of all charges brought against her in this proceeding; and awarding Respondent any lost pay and benefits she experienced as a result of the five-day suspension. DONE AND ENTERED this 3rd day of June, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2014.
The Issue The issue to be determined in this proceeding is whether Respondent is entitled to back pay following reinstatement to employment after suspension without pay.
Findings Of Fact At the final hearing, the parties stipulated to adopting the Findings of Fact from DOAH Case No. 17-4220, which are incorporated herein as follows: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.” Additional Findings of Fact While DOAH Case No. 17-4220 addressed the issue of whether the School Board had authority to suspend Mr. Warren without pay until final resolution of the criminal charge alleging a violation of section 812.014(2)(b)1., Florida Statutes, the issue of reinstatement and back pay were not at issue in that case. There was no evidence offered at hearing that the School Board offered Mr. Warren the opportunity to work in a location that does not have direct contact with students until the charges were resolved. Nearly five months after the Final Order was entered in DOAH Case No. 17-4220, the criminal charges, which served as the basis for Mr. Warren’s suspension without pay, were dismissed. As a result, the School Board reinstated Mr. Warren to his same position as a custodial worker, effective November 17, 2017. The School Board denied Mr. Warren back pay for the period he was suspended without pay. The School Board relied on its Rules and Procedure rule 2.04 (2017), when it approved the recommendation to suspend Mr. Warren without pay for the pending criminal charge. Rule 2.04 provides that “a record clear of disqualifying offenses as defined in section A . . . is required for employment or continued employment.” However, rule 2.04 fails to address the method of reinstatement or the condition upon which an employee would receive back pay if criminal allegations related to a potentially disqualifying offense were resolved favorably for the employee. The School Board has refused to award back pay to Mr. Warren on the basis that his criminal charges resulted from actions outside the scope of his employment. There is no written policy in rule 2.04 or otherwise that an existing employee who is suspended without pay for conduct that occurred outside the scope of his or her work environment is not entitled to back pay upon reinstatement. It is simply general practice. The assistant superintendent of human resources for the School District (Dr. Scott) and the general counsel (Ms. Waters) testified regarding the policy of not awarding back pay to reinstated employees after suspension without pay. Dr. Scott, who has served as the assistant superintendent of human resources for the School District since 2005, testified that “[g]enerally, if an employee is suspended without pay based on criminal charges or investigation of misconduct but in the scope of the employee’s position . . . and the employee is subsequently exonerated and reinstated, back pay will be awarded.” By contrast, “if an employee is suspended without pay pending criminal charges and/or investigation, potentially, unlawful conduct unrelated to the employee’s performance of their duties in his or employment, in the event the employee is reinstated, back pay is generally not award[ed].” Dr. Scott also testified that the District’s practice “can be a substitute” for a properly adopted rule. He acknowledged that the policy has not been approved by the School Board. Moreover, he acknowledged that the policy is not based on any adopted rule. Ms. Waters also testified about the policy of not awarding back pay. She testified that she “was not able to answer the question in the abstract” regarding whether the policy was generally applicable. She stated that it would be “a fact kind of question.” In this case, Mr. Warren was deprived of wages that he would have earned but for the suspension without pay for criminal charges that were later dismissed. There was much discussion at hearing regarding whether the School Board’s action of suspending Mr. Warren without pay should be considered discipline. Ms. Spika testified that the action of suspending Mr. Warren without pay is considered disciplinary action. Discipline is defined in the Collective Bargaining Agreement (“CBA”) as including suspension without pay. Discipline is also defined as corrective action to improve behavior. Here, the School Board did not consider Mr. Warren’s suspension without pay as disciplinary action as it was not intended to correct his work performance or work place conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that to the extent there is authority to do so, Mr. Warren should be reinstated and awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 16th day of May, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2019.
Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
Findings Of Fact Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract for approximately 15 years. He has a bachelor's degree and a master's degree in the area of education. During the 1988-89 school year Respondent was assigned as a teacher to Highland Oaks Middle School. Danielle Fisher was a student in Respondent's fifth period math class. On May 8, 1989, during math class, Dantelle Fisher became involved in a loud argument with one of her friends over which of the two girls was the owner of a "fucking lipstick." Fisher, who was also eating candy, kept proclaiming to the other girl, "Fuck you. It's mine." Fisher's argument disrupted Respondent's math class and the class next door. Respondent directed Fisher to be quiet, and Fisher refused. Respondent directed her again to be quiet, and again she refused. Respondent directed her to leave the room, and she refused. Respondent again directed her to leave the room, and she yelled at him "Fuck you. Screw you, asshole." Fisher continued yelling profanities, and Respondent went over to where she was sitting. He took her left arm to guide her out of her seat, and she resisted, refusing to move. He then exerted a small amount of force, pulling her up from her seat. Respondent gave her her books and her purse and led her by her left arm to the open classroom door, instructing her to report to the office. Respondent then closed the classroom boor. Fisher then opened the classroom door and screamed at Respondent, "Fuck you. I'm going to get you fired." She then yelled to her classmates, "Everybody, remember this." She then showed them her left arm which at that moment showed finger prints, i.e., the impression of where Respondent's fingers had been on her arm. She then left. By the time that Fisher reached the principal's office, she had red welts and scratches on her right arm. Respondent had not touched Fisher on her right arm. Fisher was not humiliated or embarrassed by the incident. She had been removed from Respondent's classroom on previous occasions for disruptive conduct and had been removed from her social studies class on a previous occasion for banging on the wall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing the Specific Notice of Charges filed against Respondent and reinstating Respondent to his position as a classroom teacher with full back pay from the date of his suspension to the date of hid reinstatement. DONE and ENTERED this 30th day of April, 1990, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990. APPENDIX TO RECOMMENDED ORDER D0AH CASE NO. 89-6345 Petitioner's proposed findings of fact numbered 1 and 6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact lumbered 2 and 3 have been rejected as being irrelevant to the issues under consideration in this proceeding. Petitioner's proposed finding of fact numbered 4 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 5 and 7-12 have been rejected as not being supported by the weight of the credible evidence in this proceeding. Petitioner's proposed findings of fact numbered 13 and 14 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 5 and 6 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact: numbered 1-4 and both numbers 7 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. COPIES FURNISHED: William DuFresne, Esquire DuFresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Dr. Paul W. Bell, Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
