Findings Of Fact Respectively on September 20 and September 9, 1988, the Petitioner and the Respondent submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix To Recommended Order the Hearing Officer submitted recommending rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The petitioner's proposed Findings of Fact numbers 1 and 5 are hereby accepted and adopted in that they are supported by competent substantial, evidence. The petitioner's proposed Finding of Fact No. 2 is hereby rejected in that the petitioner did not terminate her position on August 17, 1987, and she was not reemployed on September 29, 1987, for the reasons stated above in paragraphs numbers 1 through 12. The Petitioner's proposed Finding of Fact No. 3 is hereby rejected upon the grounds and for the reasons stated in paragraphs No. 7 and 8 above. The Petitioner's proposed Finding of Fact No. 4 is rejected as phrased, for the reasons and upon the grounds set forth in paragraph No. 4 above. The Respondent's Proposed Findings of Fact numbers (1) through (7) are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner became a member of the Florida Retirement System in September 1987 and allowing Petitioner to transfer her previously-earned Teachers' Retirement System credits to the Florida Retirement System. DONE and RECOMMENDED this 1st day of November, 1988, at Tallahassee, Florida. LINDA M. RIGOT 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 1st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0673 Petitioner's proposed findings of fact numbered 1-5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 6 and 7 have been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: Patricia Ann Ash, Esquire Harold N. Braxton, Esquire One Datran Center, Suite 406 9100 South Dadeland Boulevard Miami, Florida 33156 Burton M. Michaels, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue The issue in this case is whether Respondent's employment contract with Petitioner should be terminated.
Findings Of Fact Petitioner is the school board responsible for hiring, firing, and overseeing all employees at the School. The School, located at 5000 Orange Grove Boulevard, North Fort Myers, is completely fenced in with a gate at the front entrance, which can be left open during normal school hours. After incidents at Columbine High School and the terrorist attacks on September 11, 2001, security at the School was heightened. Respondent is a security specialist at the School and has been employed at the School for almost 30 years. Respondent first worked at the School as a security guard under CETA, a federally-funded training program, starting in 1979. She was then hired as a school board employee. Respondent worked in the school clinic for a short time, but has spent the majority of her time as a security specialist. One of Respondent's primary jobs as a security specialist was to provide security at the front gate of the school. In fact, the majority of Respondent's assignments put her at the front gate, although the School has made efforts to alter her schedule, when possible, so that she would not be stuck in one location. Due to some injuries she had experienced, however, Respondent often found assignment at the front gate to be the most conducive to her ambulatory constraints. On November 10, 2004, Respondent was at the front gate pursuant to her assignment for that day. While she was at the gate, a visitor, Herbert Wiseman, drove up in an automobile. Respondent had known Wiseman for many years and recognized him as a "dignitary" from the school district offices. Respondent waved Wiseman through the gate without stopping him and allowed him to proceed to the front office unannounced.1 This action was in contravention of School policies which required Respondent to stop all cars coming into the School and required an announcement of all officials from the district offices. However, Respondent felt her actions were not inappropriate, because she knew the individual and knew him not to be a threat of any kind. On that same day, a former student, Jamar Barnar, drove his vehicle onto the School campus without being stopped. Barnar parked his car, walked into the School property, and walked freely through the halls until he was seen and identified by a School employee. Barnar ran to his car and drove off campus. Respondent said she thought Barnar was still a student and just let him pass through the gate. Again, that action is in derogation of School policies, but Respondent says she has a good relationship with the students and sometimes allows them to circumvent the rules when she feels it would not be a threat to anyone. Respondent was issued a letter of reprimand by assistant principal Drake regarding the incidents on November 10, 2004. Respondent signed the letter acknowledging receipt, but did not ask for a union representative or otherwise attempt to grieve the letter. In fact, Respondent gracefully accepted the letter and agreed to be more vigilant in the future. The more credible testimony at final hearing established that Respondent was given the opportunity to have union representation, if she desired it. On March 8, 2005, there was another incident relating to security at the School which involved Respondent. Once again Respondent was posted at the front gate. She had been advised that two visitors were expected that day and that she should watch for them, allow them through the gate after questioning, and announce their arrival via radio contact with the front office. When the visitors (a Lee County Sheriff's officer--not in uniform--and a person from the federal Homeland Security Division) arrived, Respondent did not stop them. The visitors, on their own accord, stopped to see if Respondent would question them. She apparently did not. Rather, the visitors were allowed to go unannounced to the front office where they complained to the principal about the lack of security at the front gate. A letter of warning was issued by Principal Lunger and Assistant Principal Drake concerning the March 8, 2005, incident. Respondent was called into the office to review the letter, discuss its content, and sign it. She was offered the right to have a union representative present, but opted not to have one. Respondent acknowledged receipt of the letter of warning by her signature thereon. The letter says it is a "second written notification of a serious performance deficiency." Another letter of warning was issued to Respondent dated February 27, 2008. The basis for this letter of warning was that Respondent allowed a student to leave campus on February 19, 2008, without written permission. The student, who was well known to Respondent, advised Respondent that he had verbal permission from a teacher. However, School policies only allow administration or the front office to allow a student to leave campus. Respondent was aware of the policy, but again thought her relationship with the student was sufficient justification for allowing him to leave. Respondent was offered the right to have a union representative present when the letter of warning was discussed and signed, but she again opted out. Rather, she very amiably acquiesced to the statement of violation and signed the letter without further grievance. A letter of reprimand was issued by Assistant Principals Ken Burns and Steve Casolino dated February 29, 2008,2 relating to incidents that had occurred the previous week. On February 20, 2008, a student was seen on campus who was not supposed to be there and who had not been announced per School policies. Respondent says she had waved the student through, despite knowing it was against policy, because she knew him and had earlier allowed him to leave campus. The student (C.C.) should not have been on campus at that time due to some reason not fully disclosed at final hearing. Nevertheless, upon re-entry to the campus (allegedly with another person in his automobile), C.C. should have been stopped and questioned as to his reason for being on campus. On February 21, 2008, a student was attempting to leave campus without permission. Assistant Principal Casolino began to pursue the student and also called on the radio for security assistance. None of the three guards on duty (including Respondent) answered his call. Casolino called on the radio for the front gate to be shut so the student could not leave; it was not shut. Respondent maintains that she was keeping watch on an unauthorized car that had entered campus at that time. She opted to stay near the car, because it presented the higher security risk. Respondent did not explain why she did not answer the radio call. Respondent was absent from work immediately following the February 20 and 21, 2008, incidents. Upon her return to work on February 28, 2008, Respondent was called to the front office to discuss the letter of reprimand. She was offered the right to have a union representative, but declined. In fact, Respondent was the union representative for the School at that time, although it is unclear whether she could have represented herself or whether she was qualified to do so. There were three copies of the letter presented to Respondent, one of which was to be retained by her. Assistant Principals Burns and Casolino signed each of the three copies. On her copy, Respondent wrote the words "Under Protest" and did not sign it at that time.3 At some point in time, Respondent signed a copy of the letter of reprimand. Respondent remembers that her copy of the letter with "Under Protest" on it was torn up or crumpled and put in the waste basket. However, the photocopy of that letter presented at final hearing does not appear to have been torn up or crumpled. There is another version of the letter with signatures by Burns, Casolino, and Respondent (who signed twice) with the words "Under Protest" on it, but it is obviously not the same one that Respondent left with Burns and Casolino at the meeting. This second letter appears to be Respondent's copy of the fully signed letter upon which she later wrote "Under Protest." There are three different versions of the February 29, 2008, letter in evidence: (1) a letter with no signature by Respondent and the words "Under Protest" on it; (2) a letter signed by Burns, Casolino and Respondent--twice; and (3) a letter signed by Burns, Casolino and Respondent with the words "under protest" and "second copy" handwritten on them. At any rate, Respondent at some point signed the letter of reprimand and did not further file a grievance or complaint about the letter. However, Respondent did draft a letter to Burns and Casolino explaining her actions vis-à-vis the February 20 and 21, 2008, incidents. The letter, which is not signed, is an explanation of her actions, but Respondent did not base a formal grievance on the letter. Each employee of the School Board is evaluated annually concerning their work performance.4 Various categories of job duties are discussed in each evaluation and graded on a scale ranging from U-Unacceptable Level of Performance, to I-Inconsistently Practiced, and then E-Effective Level of Performance Observed. Respondent's 2003-2004 evaluation primarily contained grades of "E," indicating her level of performance was effective or acceptable. However, she had a "U" in the area of "Meets acceptable attendance and punctuality schedule." Comments on that evaluation say "Good worker, but absent too frequently." Respondent was absent 84.50 hours (over two full weeks) during the 2003-2004 school year. The 2004-2005 evaluation contained no "U" grades, but had "I" grades in three areas. There were no written comments on that evaluation form. The evaluation for school year 2005-2006 is almost completely at the effective level of performance, except for one area, "Utilizes leave only when necessary." Comments on the form say, "Total hours absent, 116.5. See below." The bottom of the form indicates 68.5 hours of sick leave, 27.5 hours of personal leave, and 20.5 hours of leave without pay for the period July 1, 2005, through March 23, 2006. This equates to 14.5 work days absent from the job. For the 2006-2007 school year, Respondent's evaluation again had two "I" grades in the areas called: (1) Achieves expected results with few errors; and (2) Utilizes leave only when necessary. The comments section again addresses Respondent's absences. She had 98.5 hours (12.3 total days) of leave; and 26.5 of those hours were without pay, meaning she had used up her allotted leave time. Respondent's last (or latest) evaluation indicates five areas with unacceptable levels of performance. Included in those areas are reviews of attendance and dependability. The comments section refers to the February 27, 2008, letter of warning; the February 29, 2008, letter of reprimand; and the December 5, 2007, warning letter. For that school year, Respondent had 136.25 hours absent, including 62.5 hours of leave without pay. This equates to 17 days absent, with over eight days of leave in excess of her allotted allowance. Respondent is accused of having excessive absences from work. This is a critical issue for the School because, due to budget cuts, there are only three security guards for a campus of over 2,200 students. There had been four guards previously, so teachers were being asked to supplement security by acting as de facto guards when possible. The presence of all three security guards each day was critical to maintaining a high level of security. On April 2, 2007, Respondent had sustained an injury to her right foot. Despite X-rays being taken soon after the injury, the fact that Respondent had fractures in her foot was not immediately ascertained. As a result, Respondent had a period of time that her ability to work was affected by her injury. She was under treatment by medical professionals during the entire 2007-2008 school year. While Respondent was recovering from her injury, the School made sure she had access to a golf cart for moving around campus. It was during this period of convalescence that the School made a conscious decision to assign Respondent to the front gate so that she would be in a position that did not require as much mobility. The excessive number of absences by Respondent caused problems for the School as far as security was concerned. Although the reasons for some of the absences was obviously due to the injury she sustained, there were also a number of absences related to other known (i.e., migraine headache) or unknown reasons. The concerns about Respondent's attendance were taken to the Lee County School District's Human Resources Department by Principal Lunger. Lunger did not know how else to handle the lack of security caused by Respondent's absences. Use of teachers as replacement security guards was simply not an effective means of addressing the problem. Further, the School Board did not have funds available to hire a replacement each time Respondent was absent. The absentee issue was a legitimate concern of the School and was part of the basis for deciding to terminate Respondent's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, upholding the termination of Respondent, Debra Ballard's, employment for the reasons set forth above. DONE AND ENTERED this 23rd day of April, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 23rd day of April, 2009.
Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978 Richard Fisher was employed by Acco Mechanical Contractors; Inc. on this project as a plumber. During this time Fisher was paid at the rate of $6.50 per hour for regular time and $9.75 per hour for overtime. The difference between the amount paid the Petitioner for regular time hours worked and the prevailing wage is $3.57 and the difference between the amount paid the Petitioner for overtime and the prevailing wage is $5.35 per hour. The Respondent also controverts the number of hours asserted to have been worked by Fisher. The Respondent asserts in its hearing brief that Fisher worked 459 regular hours and 50 overtime hours. The claim presented by Fisher indicated that he worked 512 regular hours and 50 overtime hours. Exhibit 8 reflects that Fisher worked 459 regular hours and 55 overtime hours. Exhibit 8 further reflects that Fisher received $6.50 per hour for regular time worked and $9.75 per hour for overtime worked. The prevailing wage rate established by the division was $10.07 per hour. The difference between the wage paid Fisher for regular time hours and the prevailing wage was $3.57. The difference paid Fisher between time and a half computed on the prevailing wage and time and a half paid Fisher is $5.35 per hour. The amount Fisher was underpaid is equal to the sum of the regular hours worked (459) times $3.57 end the overtime hours worked (55) times $5.35, or a total of $1,941.13. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. Said affidavit was filed within the time prescribed by statute. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Service is presently withholding $2,322.35 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Conclusions Petitioner has established that he was hired and worked for Acco, Inc. as a plumber and that he was paid $6.50 per hour rather than the prevailing wage of $10.07 for plumbers on the project in question. Petitioner is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employee be paid "not less than the prevailing wage." Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime pay, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage for the total number of hours worked at a rate less than the prevailing wage. Therefore, Petitioner is entitled to $1,638.63. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rates, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay the Petitioner, from the amount it is withholding in this claim, the amount of $1,638.63, and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December, 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32304 Telephone No.: (904) 488-7396 COPIES FURNISHED: DEWEY H. VARNER, JR., ESQUIRE Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. BYRD BOOTH, JR., ESQUIRE Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 LUTHER J. MOORE, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 THOMAS A. KOVAL, ESQUIRE Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 STEPHEN F. DEAN, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $1,941.13 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR RICHARD E. FISHER, Petitioner, vs. CASE NO. 78-1283 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978 in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: Petitioner, Richard E. Fisher, filed a claim against Respondent, Acco, Inc., alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, Richard E. Fisher, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the Regional Juvenile Detention Center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978, Richard E. Fisher was employed by Acco, Inc. on this project as a plumber. During this time, Fisher was paid at the rate of $6.50 per hour. The difference between the amount paid Petitioner and the prevailing wage is $3.57. The Petitioner has complied with the prOvisions of se6ion 215.19(3)(a) 1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was timely filed. Exhibit No. 8, the Weekly Time Reports for Richard E. Fisher, establish that Fisher corked 459 hours at the rate of $6.50 and 55 hours at the rate of $9.75. The difference between what Petitioner was paid and what he should have been paid at the prevailing wage rate is equal to the sum of hours worked (459) times $3.57 or a total of $1,638.63. Pursuant to the statute, the Department of Health and Rehabilitative Services is withholding $2,322.35 from Acco, Inc. pending the outcome of this claim.
Findings Of Fact Mr. Vann was employed by the Department as a counselor for its Division of Children Youth and Family. On August 8, 1987, Mr. Vann was involved in an accident in which a truck hit the car he was driving. He had an acute cervical and lumbar sprain of the back and contusions of the right arm and right foot; he had no fractures or dislocations. He received workers' compensation benefits as the result of his injuries. He was treated by an orthopedic surgeon, Dr. Pedro Bermann. By January 21, 1988, Dr. Bermann was of the opinion that Mr. Vann had reached maximum medical improvement. On March 27, 1988, Mr. Vann was admitted to the University of Miami Comprehensive Pain and Rehabilitation Center at South Shore Hospital and Medical Center for an intensive treatment program. For two weeks he was treated as an in-patient, for the following two weeks he was treated on an out-patient basis. When Mr. Vann was discharged from the Pain and Rehabilitation Center he had a zero percent impairment rating. When released from that program, Dr. Serge Podrizki wrote a letter stating that Mr. Vann had "successfully completed treatment at our center for a work-related injury and was able to resume full- time employment. He is being discharged with no restrictions according to the guidelines of his job requirements. We would suggest that his driving be limited for at least the first month." Mr. Vann then returned to his work as a counselor for Children Youth and Family on April 25, 1988. Mr. Vann's supervisor wrote a memo to him on May 20, 1988, which reassigned cases to him based on Dr. Podrizki's April 23, 1988 letter. He was not required to drive, which was consistent with Dr. Podrizki's recommendation. Problems with Mr. Vann's job performance resulted in a memo from his supervisor dated May 13, 1988, requiring him to sign in and out each day, to inform his supervisor of doctor's appointments and to provide copies of any doctor's reports to his supervisor. On June 8, 1988, Mr. Vann reported to work but he did not report to work at any time thereafter. Mr. Vann never was authorized to take leave and never provided any doctor's statements justifying his absence from work on the grounds that he was unable to work. Mr. Vann maintains that he was unable to work due to his injuries. The depositions of three doctors who treated Mr. Vann are the only medical evidence in the record. In their opinion, Mr. Vann is able to work. The greater weight of the evidence shows that there is no medical reason why Mr. Vann could not perform the duties of his job as a counselor in June 1988. On June 16, 1988, Vann received a letter advising him that he was not authorized to be absent from work and directing him to report for work. Mr. Vann did not respond to this letter. On September 27, 1988, another letter was sent to Mr. Vann advising him that because he had failed to contact the Department since June 9, 1988, or to report for work since that time, his resignation from the career service had been accepted under Rule 22A- 7.010(2)(a), Florida Administrative Code. Mr. Vann was absent from work without authorized leave for more than three consecutive work days beginning June 8, 1988.
Recommendation Based upon the foregoing, it is RECOMMENDED that a final order be entered by the Secretary of the Department of Administration finding that Mr. Vann abandoned his career service position. DONE and ENTERED this 28th day of April, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 28th day of April, 1989. APPENDIX The following are the rulings on proposed findings required by Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings Adopted in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 4. Covered in finding of fact 4. Rejected as unnecessary. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 6. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 8. Rejected as unnecessary. Adopted in finding of fact 9. Respondent's Proposed Findings Respondent submitted a letter rather than findings of fact. The contention that this proceeding is an attempt to avoid the Department's duties under the workers compensation laws is rejected as unsupported in the record. The medical evidence Respondent refers to in his letter was not submitted at the hearing; the evidence submitted by the Department was persuasive. COPIES FURNISHED: Carmen Dominguez Frick, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Suite 5424 Miami, Florida 33128 Herman Lewis Vann 671 Northwest 179 Street Miami, Florida 33169 Larry D. Scott, Esquire Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R.S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact Introduction At all times relevant hereto, respondent, Blondell Williams, was a fifth grade teacher at Poinciana Park Elementary School (PPES) in Miami, Florida. She was under a continuing contract as an elementary teacher for petitioner, School Board of Dade County (Board). She has been a teacher in the school system since 1981. On March 18, 1987 the Board voted to suspend Williams without pay effective that date for "misconduct in office, willful neglect of duty and gross insubordination." Its decision resulted in Williams requesting an administrative hearing. She has remained suspended from her job without pay during the pendency of this proceeding. The charges are based upon three counts of alleged illicit misconduct as set forth in the Amended Notice of Charges issued on February 13, 1988. The alleged illicit conduct generally includes consumption of an alcoholic beverage on campus, sleeping in class, fraudulently obtaining a lunch, excessive tardiness and absenteeism, repeatedly failing to follow various orders, and demonstrating incompetency in the classroom. These charges will be discussed separately hereinafter. Consumption of Alcoholic Beverages On February 2, 1987 respondent left campus during lunch hour to visit her father who was ill. When she returned, she was required to sign in on a roster which was in the reception area outside the principal's office. Williams entered the office area and went to the sign-in roster maintained by the principal's secretary, Delois Parker. Sitting next to Parker was Nena Brown, a system aide, and Mary White Blue, a teacher's aide. Williams was carrying a clear plastic cup containing a light pink beverage which she had brought from her car. The cup was then approximately one-quarter filled. After signing in, and while turning around, Williams accidentally spilled the beverage on Brown's leg and hand and on the carpet. Although Brown did not detect the nature of the beverage, Blue and Parker immediately detected the smell of alcohol. Another teacher, Silvia Munoz, then entered the room and also detected the smell of alcoholic beverages. At about the same time, Parker called the principal, Lawrence H. Crawford, out of his adjoining office to observe the incident. After examining the carpet, Crawford concluded that the beverage contained alcohol. Thereafter, he questioned Williams, who admitted she had drunk about a quarter of a cup of "White Mountain Cooler" taken from a bottle in her car. Crawford instructed Williams to bring the bottle to his office, and after examining the label on the bottle, he confirmed it was an alcoholic beverage. At hearing, Williams acknowledged that she had brought a cup of the beverage on campus during school hours and consumed a small amount. According to Williams, the bottle had been left in her car by a friend from the night before, but she denied knowing it contained any alcohol. This contention is not accepted as being credible since the beverage had an alcoholic odor, the label on the bottle reflected its alcoholic content, and Williams acknowledged she knew it was an alcoholic beverage at a conference for the record held on February 3, 1987. Accordingly, it is found that Williams was in the possession of, and consumed, an alcoholic beverage on campus during duty hours. However, the charge that Williams was "under the influence of an alcoholic beverage" while on duty was not established. Sleeping in Class On a warm spring day morning in 1986, the assistant principal of PPES, Terrance Armbruister, had an occasion to visit Williams' classroom. His visit was prompted by Crawford who had directed Armbruister to check out complaints that Williams was sleeping in class. After knocking on her classroom door, he unlocked it, entered and observed Williams with her head resting on her desk. He approached her but Williams did not move. Finally, she raised her head in a startled fashion as if she had just awoken. Armbruister then instructed her to wash her face and refresh herself. On or about March 28, 1986 P. J. Harden, an assistant principal in charge of curriculum at PPES, was monitoring the classroom next to Williams. The two classrooms were divided by a partition. Because of noise caused by students in Williams' classroom, Harden had difficulty monitoring the class. He pulled the partition open and observed Williams with her head on her desk asleep. He watched her sleep for approximately five minutes until a student shook Williams and awoke her. Williams apologized to Harden and promised it would not happen again. According to Harden, this was respondent's reply on every occasion that she was caught sleeping. On the afternoon of November 11, 1986 Harden again had an occasion to visit Williams' classroom while escorting a prospective teacher around the school. He found her asleep even though she was supposed to be teaching a class. To avoid embarrassment, Harden declined to allow the guest to enter the classroom. He then awoke Williams and told her to report to the principal's office. Harden stated that he found Williams sleeping in her classroom on a number of other occasions although he was unable to give specific dates. On each occasion, she was sent to the principal's office and an administrator would be assigned to cover her classroom. At no time did Williams ever give an excuse to Harden for her actions other than saying she had a second job which prevented her from getting a regular night's sleep. No Free Lunches The Amended Notice alleges that during school year 1986-87, Williams was guilty of "fraudulently obtaining and consuming school provided, student lunches." This charge stems from an incident on or about December 11, 1986 when respondent approached the cashier at the school cafeteria and told the cashier to give her a lunch without charge and to record it as being a free lunch given to a student. The cashier complied with Williams' instructions. By chance, the principal learned of this and confronted respondent with the charge. Williams admitted she had obtained an unauthorized free lunch. Her only excuse was that she was short of funds and had seen another teacher do it on one occasion. At Crawford's direction, Williams reimbursed the school for the meal. Excessive Tardiness and Absenteeism The school day at PPES began at 8:15 a.m. each day and lasted until 3:20 p.m. Teachers were expected to be in their classrooms by 8:20 a.m. so that they could greet their students before classes began at 8:30 a.m. Williams was aware of this requirement and was reminded of it from time to time by her supervisors. In addition, teachers were given thirty minutes for lunch. If a teacher left campus during lunch hour, he or she was expected to sign in and out on an attendance roster maintained in the principal's office. Even if a teacher left campus during lunch hour, the lunch period was still only thirty minutes, and any additional absence by a teacher required authorization from the principal's office. Williams was aware of this policy and understood that a failure to comply with these instructions was a violation of school policy. Under school policy, and in accordance with instructions in the teacher's handbook, a teacher was obligated to call the principal's secretary if he or she was going to be late to school. This call was expected to be made prior to 8:00 a.m. so that the principal could assign an administrator or other teacher to the classroom until the teacher reported to work. In addition, if a teacher knew he would be absent from school the following day, he was expected to telephone the principal's secretary before 2:00 p.m. on the day prior to the absence. If the absence was not known until after 2:00 p.m., the teacher was expected to telephone an assigned number between 7:00 p.m. and 10:00 p.m. that evening, or at 7:00 a.m. on the day of the absence. This enabled the school administration to timely obtain a substitute teacher. Williams was aware of these requirements. During school year 1984-85, Harden was the assistant principal in charge of curriculum at PPES. His responsibilities included counseling and meeting with teachers who were tardy or absent. On or about October 19, 1984 Harden met with Williams concerning her "continuous" tardiness in reporting to school each morning. She was told that the school day for teachers began at 8:15 a.m. Despite this warning, Williams was late to work on October 19, November 29 and December 4, 1984. This prompted another meeting by Harden and respondent on December 4, 1984. Williams was given a memorandum advising her that she had to be at school by 8:15 a.m. each morning. At the meeting, Williams explained she had a second job which lasted late into the night and enabled her to catch only a "catnap" in the early morning hours. Harden instructed her to set her priorities in order and to adhere to the school attendance requirements. Because of continuing tardiness and absences from work, Williams received another memorandum from Harden on January 24, 1985. The memorandum cited Williams for leaving campus on January 12 and 17, 1985 without authorization and being late to work on January 17. The two held a conference for the record on January 31, 1985 concerning these problems. On March 7, 1985 Crawford sent Williams a memorandum stating that he had "serious concerns about (her) tardiness and (her) habit of illegally leaving the campus during the school day." Another conference for the record was held on March 15. At the conference Williams again gave an excuse of having a second job as well as having problems with a boyfriend. She was told that she must comply with attendance requirements and not let the second job interfere with her primary job of teaching. On July 18, 1985 Williams received a memorandum from Harden for reporting late to work on July 17 and missing a homeroom assignment. The memorandum advised her to immediately remedy the situation and offered to help her if assistance was needed. Despite her poor attendance record, Williams was given an "acceptable" rating and recommended for employment in her annual evaluation rendered on May 17, 1985. There was, however, a comment that a "conference for the record for tardies" had been held during the school year. Williams' attendance and punctuality record did not improve the following school year. She was given at least five memoranda between July, 1985 and January, 1986 concerning her tardiness or absences. She was counseled by Armbruister on October 22, 1985 and specifically told to review the faculty handbook concerning attendance requirements. Armbruister spoke with her again concerning the same problems on November 12, 1985. Because the problem persisted, school officials felt compelled to hold a conference for the record on January 27, 1986. At that time, Williams attributed her difficulties to a second job, problems with a boyfriend, a "peeping tom" in the neighborhood who kept her from sleeping, and no telephone. She admitted she was wrong and indicated she would try to do better. Despite this meeting, Williams took an unauthorized leave at lunch on January 31. This prompted a conference with Armbruister the same day to discuss the latest incident. Williams was given a memorandum advising her to review a summary of the conference for the record held four days earlier and to follow the school's recommendations. In school year 1986-87, Williams' erratic attendance and lack of punctuality continued. As of December 16, 1986, which was roughly halfway through the school year, Williams was late or absent forty-three out of seventy- five workdays. Because of this continuing pattern, a conference for the record was held by respondent and Crawford on October 9, 1986. Williams was found to be deficient in the area of professional responsibility and placed on prescription until December 19. This meant she had to fulfill certain conditions by the end of the prescriptive period. Among other things, Williams was required to arrive daily at work by 8:00 a.m., to timely telephone the office about any absences, to submit a written statement explaining each absence, to report to an administrator or office staff member upon arrival to school each morning, to have up-to-date emergency lesson plans, and to read the teacher contract and teacher assessment handbook. In the month of January, 1987, Williams was tardy on eleven mornings and absent from work on six days. In February, she was tardy the morning of February 2. This was also the day that Williams brought the alcoholic beverage on campus during lunch hour. An emergency conference for the record was held the following day, which was her last day at PPES. Failure to Follow Orders The Amended Notice alleges that, during school years 1984-85, 1985-86 and 1986-87, Williams committed acts of gross insubordination, including . . . repeatedly failing to follow ordered procedures . . . for reporting absences, . . . procedures concerning her morning arrivals at school, . . . procedures documenting absences, . . . procedures concerning lesson plans, records and student report cards, . . . orders to stay awake while (performing) . . . assigned duties, . . . orders concerning tardiness after lunch, (and) . . . orders to not leave the school campus other than during her lunch period. After being placed on prescription on October 10, 1986, Williams was required to fulfill certain requirements enumerated in finding of fact 18. However, she failed to notify an administrator or office staff member upon arrival at school each morning from October 13 through December 15 except for the week of October 13. She also failed to submit a written explanation of her absences on October 27 and 29, November 3, 18, 24 and 25, and December 2 and 3, 1986. She failed further to timely advise the school of absences on October 21 and 29, November 24 and December 2 and 3, 1986. All such failures were in direct contravention of the written prescription. Although Williams contended such violations were not willful, it is found they were intentional. Other than a reference to Williams' failure to timely prepare lesson plans during an undisclosed part of school year 1985-86, and a prescription requiring her to prepare emergency lesson plans in October, 1986, the Board did not establish that Williams repeatedly failed to prepare lesson plans, report cards and other unnamed "records." Williams was observed sleeping in class on two specific occasions during the school years in question. On a third occasion, an administrator observed her with her head down on her desk as if asleep but could not say for sure that she was sleeping. Assistant principal Harden also said Williams was caught sleeping on a number of other occasions but did not identify the dates. There being only three specific times on which Williams was found sleeping, it is found that no direct disobeyel of orders occurred on the part of respondent as to sleeping in class. Williams was given repeated instructions since 1984 to be punctual for work each day. Despite these orders, she continued to be late on numerous occasions between September 1984 and February, 1987. She also failed to timely advise the school concerning her absences or tardiness on many occasions in spite of specific instructions to do so. Finally, after having received a number of oral and written directives, she nonetheless left school on several occasions for more than thirty minutes during the lunch hour without authorization. Incompetency Respondent taught a Chapter One class at PPES. This class is comprised of students needing additional training and instruction in basic skills such as reading and mathematics. It is smaller than a regular class so that the teacher may give the students added instruction and attention. Because of respondent's repeated absenteeism and tardiness over the course of the school years, the children in respondent's class were denied the continuity of their instructional program. This also meant the lesson plans could not be carried out as prepared on those days on which she was late. Therefore, the students continually received a reduced period of instruction. This in turn impaired her effectiveness as a teacher. Respondent's Case In 1982, respondent's father became gravely ill and was thereafter bedridden at her mother's home until his death in 1987. According to Williams, her mother cared for him during the day and Williams took her turn at night. She also visited him on occasion during her lunch hour. As a result, she was required to spend long waking hours during the night with her father and to overextend her lunch hour while visiting him during the day. Williams attributed her attendance problems and her falling asleep to the demands of her father. However, Williams never told her superiors of this problem nor did she obtain authorization to leave campus during lunch hour. Just prior to her separation from PPES Williams acknowledged to school officials that she had a drinking problem. She also agreed to attend a clinic for problem drinkers. At hearing she denied having such a problem and said her earlier admission was given solely for the purpose of saving her job. However, she acknowledged attending a drinking clinic for a few days in early 1987. At the school's request, she also took a physical examination in February, 1987. The results are not of record. Williams contended that other teachers were late but were not written up. However, no proof as to this contention was submitted. The Teacher Assessment and Development System (TADS) is the standard measure of teacher performance in Dade County. There was no evidence of any negative TADS evaluation of respondent despite her repeated tardiness and absences from school. Respondent's last TADS evaluation covered the period up to and including March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office, gross insubordination and incompetency as set forth in this Recommended Order and that she be dismissed as an employee of petitioner. DONE AND ORDERED this 4th day of April, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 4th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1456 Petitioner: Rejected as being unnecessary. Covered in finding of fact 1. Covered in findings of fact 5, 17 and 25. Covered in findings of fact 12-15 and 25. Covered in findings of fact 12-19. Covered in findings of fact 12-19. Covered in findings of fact 12-19. Covered in finding of fact 9. Covered in finding of fact 3. Covered in finding of fact 25. Covered in findings of fact 25 and 27. Respondent: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 26. Covered in finding of fact 26. Covered in finding of fact 26. Covered in finding of fact 26. Rejected as being unnecessary. Accepted to the extent the same is covered in the findings; the remainder is rejected as being contrary to the more credible and persuasive evidence. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29 Rejected as being contrary to the more credible and persuasive evidence. Rejected since respondent's deficiencies constituted incompetency. Rejected as being irrelevant. Rejected since respondent admitted knowing that the beverage was alcoholic in nature. Partially covered in finding of fact 3. Rejected as being contrary to the evidence. Covered in finding of fact 27. Covered in finding of fact 27. Covered in finding of fact 27. Rejected since respondent admitted having a drinking problem during her conference with Dr. Gil on February 3, 1987. Rejected since the Board's basis for dismissing respondent was based on other factors. Rejected as being contrary to the more credible and persuasive evidence. Rejected as being contrary to the more credible and persuasive evidence. COPIES FURNISHED: Frank R. Harder, Esquire Fontainebleau Park Office Plaza Suite 2A-3 175 Fontainebleau Boulevard Miami, Florida 33172 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Karen Barr Wilde, Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2016.
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of having been convicted of a crime of "moral turpitude" and thereby subject to having her employment terminated for just cause by the Petitioner in accordance with Section 231.36(1)(a), Florida Statutes. Whether, under the facts and circumstances of this case, Respondent is guilty of having been absent without authorized leave in violation of Section 231.44, Florida Statutes, and thereby subject to having her employment terminated for just cause by the Petitioner in accordance with Section 231.36(1)(a), Florida Statutes.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Charles F. Blalock, Jr., was the duly elected Superintendent of Schools of Suwannee County, Florida. At all times material to this proceeding, Janette Walls was a member of the instructional staff of the Suwannee County School District, employed by the District School Board of Suwannee County, Florida (Board) under an annual contract. While a written annual contract had not been executed between the Board and the Respondent for the 1989-1990 school year due to Respondent's being on maternity leave the first 9 weeks of the 1989-1990 school year, the contractural relationship was the same as set forth in the 1988-1989 annual contract (except for salary which is not in dispute) executed by the Board and the Respondent which provided for dismissal for just cause during the term of the contract as required by Section 231.26(1)(a), Florida Statutes. The Respondent plead Nolo Contendere to the charge of passing worthless checks to Pic N Save in the amount of $50.10, Jiffy Food Store in the amount of $35.00, Suwannee Pack in the amount of $25.00, Suwannee Pack in the amount of $40.53 and Jiffy Food Store in the amount of $21.47 in Case Numbers 89- 1103 MN, 89-1127 MN, 89-1128 MN, 89-1135 MN and 89-1203 MN in the County Court, Suwannee County, Florida. The court in each case adjudicated the Respondent guilty and ordered restitution and assessments in the total amount of $712.10 and placed the Respondent on supervised probation for a period of 12 months in each case. There was no evidence presented as to whether the Respondent paid any of the restitution and assessments ordered in these cases. 4. In Case Numbers 89-1170 MN, 89-1171 MN, 89-1172 MN, 89-1173 MN (orders dated June 5, 1989), 89-1179 (order dated June 6, 1989), 89-1211 MM, 89-1212 MN (orders dated June 14, 1989), 89-1798 MN (order dated August 21, 1989) and 89- 1799 MN (order dated August 23, 1989) in the County Court of Columbia County, Florida the Respondent plead guilty to the charges of passing worthless checks in the amount of $37.42 to Suwannee Swifty on May 5, 1989, $47.63 to Suwannee Swifty on May 6, 1989, $49.86 to Suwannee Swifty on May 5, 1989, $13.00 to Suwannee Swifty on May 9, 1989, $35.00 to Suwannee Swifty on Nay 8, 1989, $6.86 to S & S Store #5 on May 16, 1989, $8.70 to S & S Store #5 on May 9, 1989, $25.00 to Suwannee Swifty on May 9, 1989 and $37.52 to Suwannee Swifty on May 16, 1989. As a result of her plea in the above-cited cases the court adjudicated the Respondent guilty, ordered her to pay restitution and court costs and placed her on probation. There was no evidence presented to show whether the Respondent paid the restitution and assessments ordered in these cases. 5. In Case Numbers 89-478 MN, 89-479 MN, 89-480 MN, 89-647 MN, 89-648 MN, 89-649 MN, 89-650 MN, 89-651 MN. 89-652 MN, 89-653 MN and 89-702 MN in the County Court of Hamilton County, Florida the Respondent plead guilty to the charge of passing worthless checks in the amount of $30.34, $60.00, $60.00, $57.00, $68.91, $62.00, $55.29, $72.45, $65.00, $52.48 and $46.32. On August 4, 1989 the court adjudicated Respondent guilty in Case Numbers 89-478 MN, 89-479 MN and 89-480 MN and ordered the Respondent to pay restitution plus $300.00 in court costs. The Court also placed Respondent on 6 months probation in each case. On December 1, 1989 the court adjudicated the Respondent guilty in Case Numbers 89-647 MN through 89-653 MN and 89-702 MN and sentenced her to 4 months in the Hamilton County Jail with a condition for her release upon her serving 30 days and paying costs and restitution in the amount of $1,279.45. Respondent was incarcerated from on or about December 1, 1989 until on or about December 18, 1989. Respondent was granted personal leave for December 1, 1989. During the school week of December 4 - 8, 1989 Respondent's mother called in to advise the school that the Respondent was sick and that her father was either ill or had died and Respondent would not be in to teach and requesting sick leave for the Respondent. Sometime during the following week of December 11 - 15, 1989 Respondent's mother called again and requested further sick leave for Respondent. On all occasions when sick leave was requested, it was made clear that Respondent would have to fill out a request for sick leave. On December 19, 1989 when Respondent returned to school she completed and signed three Claim For Leave Compensation forms requesting sick leave for the periods of December 4-8, 1989, December 11 & 12, 1989 and December 13 - 15 & 18-19, 1989. It is apparent that Charles M. Sweat, Principal of Suwannee Elementary West signed the Respondent's leave requests recommending approval without paying any attention to who was requesting the sick leave because upon learning that he had signed Respondent's leave request knowing of her incarceration in the Hamilton County Jail prior to his signing the leave requests, he attempted to "white-out" his signature. The request for leave was never approved by the Petitioner, which is required, although such approval may be in some cases after the fact. Respondent may have been paid for this leave time by the Board and, if so, could be considered as approval of the requested leave after the fact; however, there is insufficient evidence to show that the Board did in fact pay the Respondent for this leave time. The Respondent was absent from her work at Suwannee Elementary West without authorized leave for the period of time of December 4 - 8, 11- 15 and 18-19, 1989.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Suwannee County District School Board enter a Final Order terminating Respondent, Janette Walls' employment with the Suwannee County School District effective January 9, 1990, the date Respondent was suspended without pay. DONE AND ENTERED this 25th day of April, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1990. COPIES FURNISHED: Honorable Charles F. Blalock, Jr. District School Superintendent, Suwannee County, Florida 224 West Parshley Street Live Oak, Florida 32060 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 J. Victor Africano Post Office Box 1450 Live Oak, Florida 32060 Ms. Janette Walls 843 Alderman Road # 531 Jacksonville, Florida 32211
The Issue The issue is the amount of attorney's fees and costs owed to Petitioner by Respondent, Jian Deng Bao, d/b/a China Gardens Restaurant ("China Gardens").
Findings Of Fact Petitioner initially filed a Statement for Attorney's Fees on May 16, 2012, requesting fees in the amount of $14,162.50 and costs of $252.21. On the same date, Sharon Caserta, counsel for Petitioner, filed an affidavit attesting that the total time for which reimbursement is sought for fees in this case is 56.65 hours. These hours commenced on March 22, 2011, when Ms. Caserta drafted the initial complaint that Petitioner filed with the FCHR, and ended on April 25, 2012, when Ms. Caserta briefly reviewed the FCHR Order No. 12-019 on behalf of her client. Ms. Caserta attested that she is the unit manager for the Deaf/Hard of Hearing Advocacy Program of Jacksonville Area Legal Aid, Inc. and that her caseload consists solely of disability discrimination cases for deaf, hard of hearing, and deaf/blind clients. Ms. Caserta is fluent in American Sign Language and is certified by the National Registry of Interpreters for the Deaf. She has published scholarly articles and conducted training sessions on legal representation of deaf and blind clients. Ms. Caserta's skills and expertise were directly related to her representation of Petitioner, who is deaf and blind. Ms. Caserta attested that her hourly fee is $250.00, which is commensurate for an attorney with her skill and ability in the Jacksonville area. She therefore requested an attorney's fee of $14,162.50, which is the product of her hourly fee and the 56.65 hours she spent in representing Petitioner. She also requested $252.21 in costs inclusive of certified mail costs, subpoena service, and witness fees. Ms. Caserta also submitted the affidavit of Stephen F. Albee, a practicing lawyer with 19 years of experience. Mr. Albee is a partner/shareholder in the Jacksonville firm of Espenship, Schlax & Albee LLC. Mr. Albee previously worked in the predatory lending department of Jacksonville Area Legal Aid, Inc. He has also served as in-house attorney for OSI Portfolio Services Inc., n/k/a NCO Group, Inc. Mr. Albee attested that he inspected the files of Ms. Caserta and considered all of the factors in Rule 4-1.5(b) of the Rules Regulating The Florida Bar. Mr. Albee concluded that 56.65 hours is a reasonable number of hours for the work required in this action. Of that amount, Mr. Albee concluded that 47.85 hours of attorney time at $250.00 per hour is reasonable and that 8.8 hours of paralegal time at $90.00 per hour is reasonable. Therefore, Mr. Albee concluded that $12,754.50 is a reasonable fee for Petitioner's attorney's fees in this case. At the hearing, Ms. Caserta stated that she would defer to Mr. Albee's opinion and would accept the amount of $12,754.50 in attorney's fees. Ms. Caserta also corrected her request for costs to $212.21. China Gardens has not challenged the reasonableness of the attorney's fees and costs claimed by Petitioner. The undersigned finds that an attorney's fee of $12,754.50 and costs of $212.21 are reasonable under all of the circumstances presented in this case.
Conclusions For Petitioner: Sharon Caserta, Esquire Jacksonville Area Legal Aid, Deaf/Hard of Hearing Legal Advocacy Program 126 West Adams Street Jacksonville, Florida 32202 For Respondent: No appearance
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order awarding Petitioner attorney's fees in the amount of $12,754.50 and costs in the amount of $212.21. DONE AND ENTERED this 26th day of October, 2012, in Tallahassee, Leon County, Florida. S 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 26th day of October, 2012. COPIES FURNISHED: Jian Bao China Gardens Restaurant Apartment 2202 12250 Atlantic Boulevard Jacksonville, Florida 32225-5807 Sharon Caserta, Esquire Jacksonville Area Legal Aid, Deaf/Hard of Hearing Legal Advocacy Program 126 West Adams Street Jacksonville, Florida 32202 Jian Bao China Gardens Restaurant 1573 Par Street, Northeast Palm Bay, Florida 32905 Jian Bao China Gardens Restaurant 10550 Old St. Augustine Road Jacksonville, Florida 32257 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue to be resolved is whether Petitioner, Emma J. Brown, was subject to discrimination in her employment by Respondent for the reasons alleged in her Petition for Relief.
Findings Of Fact Based upon the demeanor of the witnesses while testifying, exhibits admitted in evidence, and stipulations and argument of the parties, the following relevant, material, and substantive facts are found: Petitioner, Emma J. Brown (Ms. Brown), an African- American female, began working for Respondent, Sunbelt Health Care (Sunbelt), a nursing home in Zephyrhills, Florida, as a Certified Nursing Assistant (CNA) on or about February 11, 2002, after an interview by Barbara Derby-Bartlett (Ms. Derby- Bartlett), director of nursing, who made the decision to hire Ms. Brown. Margaret Levesque (Ms. Levesque), a white female, was hired as a CNA by Sunbelt in June of 2002. A CNA's duties include assisting the nursing staff in overall patient care. At the time of their hire, all new employees were required to attend an orientation process. During orientation, new employees, including Ms. Brown, were given a copy of Sunbelt's employee handbook and other printed materials, including Sunbelt's "Call-Off Guides" policy. The "Call-Off Guides" policy specifies the means and method employees are required to follow when they can not be present for their scheduled work shifts. The policy also informs the new employee that repeated absenteeism will result in immediate dismissal. Sunbelt is a 24-hour, full-care facility with residents located in both its north side wing and south side wing. Employees work on both wings. Sunbelt used two shifts, the day shift and the night shift, to provide residents with 24-hour care and service. Ms. Brown testified that at the time of her hire, she informed Sunbelt that she could not work the day (first) shift because she had another job. Her request to work the night (second) shift was granted. On February 22, 2002, after 11 days of employment, Ms. Brown suffered an on-the-job injury to her wrist. Ms. Brown re-injured her wrist on March 22, 2002, and suffered an on-the- job back injury on April 7, 2002. Ms. Brown, through counsel, filed workers' compensation claims for her on-the-job injuries. Ms. Brown's treating physician placed her on work restrictions, limiting her duties to no bending and no lifting over 20 pounds. On or about May 24, 2002, Ms. Brown returned to work and presented her work restrictions, and Sunbelt assigned Ms. Brown to the night shift to perform light-duty work assignments. The light-duty work assigned to Ms. Brown consisted of answering residents' call lights, checking their vital signs, assisting residents with their meals (passing trays), and replenishing their water supplies on both the north and south wings. Ms. Brown requested that Sunbelt change her work schedule to day shift and allow her to work five consecutive days with weekends off. This request was denied. During the pertinent time, two other CNAs, Ms. Levesque and Shirley Manley (Ms. Manley), were also on light-duty. Ms. Levesque and Ms. Manley, white females, performed light-duty work assignments on both the north and south wings similar to those performed by Ms. Brown. According to Ms. Brown, Ms. Levesque worked weekdays for two consecutive months with no weekend duty, and she was not allowed to do likewise. On June 6, 2002, Sunbelt transferred Ms. Brown from night shift to day shift. Ms. Brown maintained that there is "more light-duty work" during the day shift than during the night shift, and by keeping her on the day shift, her workload was increased when compared to CNAs working during the night shift. Ms. Brown filed her claim of discrimination, and Sunbelt, by and through counsel, attempted settlement of Ms. Brown's claim of discrimination without success. Ms. Brown maintained that the proffered settlement did not justify the treatment she received. Sunbelt presented the testimony of Ms. Levesque, who was hired in June 2002 as a CNA but was initially assigned to the duty and function of "staffing coordinator." The staffing coordinator is a day shift employee whose primarily duties consisted of preparing CNAs' work schedules and identifying and securing replacements for those CNAs who called in and, for whatever reasons, did not or could not report for duty as scheduled. During her staffing coordinator assignment, Ms. Levesque also assisted CNAs in their duties, but was assigned light-duty with a 20-pound lifting restriction. Her CNA duties include passing food trays during breakfast, lunch, and dinner; replenishing water; and anything that did not require her to physically pick-up and/or lift a resident. In or about mid-August of 2002, Ms. Levesque's schedule changed, and she was required to work every other weekend. On several occasions, Ms. Levesque and Ms. Brown worked on the same shift, but not on the same wing. Ms. Derby-Bartlett testified that upon receipt from an employee's physician detailing the employee's limitations, she would work within those specific limitations in assigning CNAs to light-duty. According to Ms. Derby-Bartlett, light-duty work assignments are less during the night when residents are asleep and more during the day when residents are awake. After her appointment to the position of director of nursing, Ms. Derby-Bartlett became aware that Ms. Levesque was not working every other weekend and informed Ms. Levesque that she would be scheduled to work every other weekend. Ms. Levesque's request for a couple of weeks to make adjustments was granted, and she thereafter was scheduled to work every other weekend. Ms. Derby-Bartlett confirmed that Ms. Brown was assigned light-duty work assignments on June 6, 2002, and Ms. Brown was a no-show for work. On July 3, 2002, Ms. Brown was assigned light-duty, and she called in as a no-show. On July 4, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. On July 5, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. Ms. Derby-Bartlett contacted the staffing person on each day Ms. Brown called in and on each day Ms. Brown was a no- show, confirming the accuracy of the reports. Ms. Derby-Bartlett contacted Ms. Brown regarding her no-calls and no-shows and informed her of Sunbelt's policy of termination for repeated absenteeism. Ms. Brown, believing her doctor had called Sunbelt on one of the days she was a no-show, was mistaken because no doctor called. On July 5, 2002, Ms. Derby-Bartlett completed Sunbelt's disciplinary form to terminate Ms. Brown due to her several no-calls and no-shows, in violation of Sunbelt's policy, and forwarded her recommendation to Maria Coddington, Sunbelt's unit manager. Ms. Derby-Bartlett testified that since her appointment as director of nursing, the no-show/no-call termination policy has been consistently applied, and she was not aware of any employee who had been no-show/no-call for two consecutive days who had not been terminated. Five months after hiring Ms. Brown, Ms. Derby-Bartlett terminated her. Sunbelt's employee handbook's "Call-Off Guides" policy regarding absenteeism provides, in pertinent part that: "if employees do not call in or do not show up for work for two consecutive days or three nonconsecutive days, it is grounds for termination." Each employee, as did Ms. Brown, signed individual employment documents attesting to having received a copy of Sunbelt's "Call-Off Guides" policy when hired. Ms. Brown was terminated because of her violation of Sunbelt's policy regarding two or more absenteeism without notice to her employer and her repeated failure, albeit her belief that her physician was going to call on her behalf and did not do so, to timely inform her employer of her absence from scheduled duty. Ms. Brown's termination by Sunbelt was based on her violation of their employee work attendance policy and not because of her race and/or ethnic origin. Ms. Brown failed to present a prima facie case of discrimination based on her race as alleged in her complaint of discrimination.
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 the Petition for Relief filed by Petitioner, Emma J. Brown. DONE AND ENTERED this 20th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 20th day of August, 2004. COPIES FURNISHED: Emma J. Brown 38723 Barbara Lane Dade City, Florida 33523 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan M. Gerlach, Esquire Adventist Health System-Legal Services 111 North Orlando Avenue Winter Park, Florida 32789 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
