The Issue Whether the Miami-Dade County School Board (School Board) has good cause to terminate the employment of Mayda Cepero (Respondent), a paraprofessional, as alleged in the Amended Notice of Specific Charges filed by Petitioner on April 18, 2013.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Finlay Elementary is a public school in Miami-Dade County, Florida. At all times material hereto, Respondent has been employed as a paraprofessional and assigned to a Pre-K class at Finlay Elementary. At all times material hereto, Cecilia Sanchez has been the principal of Finlay Elementary. During the 2009-2010 school year, C.M. was a student at Finlay Elementary, but C.M. was not a student in Respondent’s assigned classroom. Respondent had no direct supervisory responsibility for C.M. Prior to the 2009-2010 school year, Respondent had met Ms. M. and, through Ms. M., Respondent met Mr. M.3/ Respondent asked Mr. M., who has a law enforcement background, to assist her with certain personal matters relating to the untimely death of Respondent’s son. The M. family and Respondent developed a personal relationship. Thereafter, Respondent made what Mr. M. considered to be an inappropriate sexual advance towards him. Mr. M. attempted to break-off all communication with Respondent. Subsequent to the break-off, Respondent accessed C.M.’s emergency contact information card and began sending Mr. M. numerous, unwanted text messages, emails, and other electronic communications. Respondent used the emergency contact information to make these communications with Mr. M. Respondent had no professional interest in accessing C.M.’s emergency contact information. In November 2009, Ms. Sanchez issued a reprimand to Respondent for this conduct.4/ On March 23, 2010, Respondent disobeyed instructions from her classroom teacher and from her principal. The teacher had instructed Respondent to keep the class in the classroom during a Career Day demonstration involving a K-9 officer and his dog. The K-9 officer was Mr. M. Notwithstanding that instruction, Respondent brought her class outside to watch the K-9 demonstration. Ms. Sanchez told Respondent to take her class back to the classroom. Respondent refused and told her class to run and play. Ms. Sanchez had to ask another teacher, who was supervising her own class, to assist with Respondent’s class. Because of this incident, Ms. Sanchez issued a written reprimand to Respondent for her failure to follow instructions from her classroom teacher and Ms. Sanchez. In April 2010, Ms. Sanchez reprimanded Respondent for failing to comply with her responsibilities and duties in the classroom. On February 25, 2012, Ms. Sanchez reprimanded Respondent for not following her job responsibilities and duties and for not complying with directives issued by both her classroom teacher and Ms. Sanchez. In November 2012, a personnel investigation against Respondent began based on complaints from Mr. and Ms. M. that Respondent was monitoring N.M. at school and texting Mr. M. with her observations. Respondent would often stare at N.M. at school. Respondent monitored N.M.’s absences from school. Respondent went to the parking lot to see who picked N.M. from school. Respondent often interrupted the security employee who was supervising the parent pick-up of children following the school day. Respondent repeatedly sent text messages to Mr. M. that contained references to N.M.’s activities at school. N.M. became very uncomfortable and talked to N.M.’s parents about Respondent. N.M. became reluctant to attend school and N.M.’s grades suffered. In November 2012, Ms. Sanchez informed Respondent that she was under investigation from parents that were to remain confidential for the time being. Ms. Sanchez directed Respondent to have no contact with any witness who may be involved in the investigation. Immediately after being told by Ms. Sanchez not to contact any witness, Respondent sent a text message to Mr. M.5/
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Mayda Cepero and terminate that employment. DONE AND ENTERED this 19th day of July, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 19th day of July, 2013.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee, where Respondent has confessed to a felony shoplifting charge as part of a deferred prosecution agreement pursuant to which criminal charges will be dismissed if Respondent satisfactorily complies with the agreement.
Findings Of Fact The evidence presented at final hearing established the facts that follow. At all times material, Respondent Cassandre Lawrence (“Lawrence”) was employed in the Palm Beach County School District (the “District”) as a paraprofessional (teacher’s aide), a position which she had held for approximately six years before the events that gave rise to the instant proceeding.1 Lawrence was working at Northmore Elementary School during the 2000-01 school year. On December 26, 2000, Lawrence and a female companion were arrested at the Boynton Beach Mall on shoplifting charges. Lawrence was charged with grand retail theft, which is a third degree felony. Pursuant to Board Rule 6Gx50-3.13,2 all District employees must report any arrests, convictions, “commitment[s] to a pretrial diversion program,” or pleas of any kind within 48 hours after the reportable event.3 At the time of Lawrence’s arrest, however, the District’s schools were closed for Christmas vacation, so she did not report the incident immediately. Instead, on January 9, 2001——Lawrence’s first day back at work after the holidays——Lawrence submitted to the District’s Chief Personnel Officer a written disclosure of her arrest, which stated: On December 26, 2000 I was shopping in the Boynton Beach Mall with a friend. Unknowingly, she put some items in my shopping bag. I was falsely arrested. My friend has admitted doing so [sic]. I felt that being an employee of the School Board that [sic] I should report this matter. This matter would be dissolved [sic] very soon. I have never been in any trouble or accused before. This situation has really been bothering me. After this matter has been straightened out I will be forwarding you the necessary paper work. Lawrence’s statement was provided to the District’s Office of Professional Standards on January 10, 2001. That office opened a case file on Lawrence. On March 29, 2001, Lawrence reached an agreement with the state attorney that provided for her referral to a pretrial intervention program (“PTI”). See Section 948.08, Florida Statutes (governing pretrial intervention programs). This agreement was reduced to writing on April 3, 2001, when the parties executed a contract they called the Deferred Prosecution Agreement (“Agreement”). Under the Agreement, the state attorney promised, in return for Lawrence’s agreement to abide by conditions specified in the Agreement, to defer the prosecution of Lawrence for a period of 18 months from the date of April 3, 2001. Further, the state attorney agreed that if Lawrence complied with the conditions of the Agreement, then “no criminal prosecution concerning [the shoplifting] charge [would] be instituted[.]” By signing the Agreement, Lawrence expressly waived her constitutional rights to a speedy trial. On the same day she executed the Agreement, and in consideration thereof, Lawrence signed this statement: I, Cassandre Lawrence freely and voluntarily admit that I am guilty of the allegations [of grand theft] contained in [the charging document]. (This statement will be referred to hereafter as the “Confession.”)4 Sometime shortly afterwards——the evidence does not reveal the exact date——Lawrence reported to the District that she had entered into a PTI pursuant to the Agreement. As a result, on April 19, 2001, Mr. Holeva of the District's Office of Professional Standards met with Lawrence, her attorney (who participated by telephone), and her union representative,5 to investigate the circumstances surrounding the shoplifting charge against Lawrence. In this meeting, Lawrence acknowledged that, to enter into a PTI, she had signed the Confession wherein she admitted guilt to the felony theft charge——a so-called “435 offense.”6 Following this interview, the Office of Professional Standards referred Lawrence’s case to the Case Management Review Committee (the “Committee”). The Committee is composed of a dozen senior District employees who are responsible for determining whether probable cause exists to discipline an employee suspected of having engaged in misconduct. Upon review, the Committee determined that Lawrence had violated Board Rule 6Gx50-3.13 by failing to timely report her arrest and later referral to a PTI within 48 hours after these respective events had occurred. (Yet, it should be noted, Lawrence had not concealed the material facts, nor had she attempted to mislead the District.) However, the Committee considered Lawrence’s purported failures strictly to follow the notification rule to be, collectively, a minor infraction that, without more, would have warranted at most a written reprimand. Much more important, the Committee found that Lawrence was guilty of a “435 offense.” Because the District’s settled policy and consistent practice is to terminate any employee who has committed a “435 offense,” the Committee recommended that Lawrence’s employment be terminated. The Superintendent accepted the Committee’s recommendation that Lawrence be fired. By letter dated June 29, 2001, the Superintendent notified Lawrence that he would recommend to the Board at its July 11, 2001, meeting that she be suspended without pay pending dismissal. The Board subsequently accepted the Superintendent’s recommendation. Lawrence has been suspended without pay since on or about July 11, 2001.
Findings Of Fact The Respondent, George Culbert, at times pertinent hereto, was employed by the School Board of Bay County. He was employed from November 1981 until March 4, 1987, when he was terminated by recommendation of a supervisor and by the School Superintendent. On April 8, 1987, the School Board took final agency action by terminating Mr. Culbert. The School Board of Bay County, the Petitioner, is a unit of local government charged, in pertinent part, with the hiring, termination and regulation of employment duties and practices of non- instructional personnel, such as the Respondent herein. The Respondent was employed by the School Board as a substitute bus driver from November 1981 until August 1982. From that date until his termination, he held a regular, full-time position as a bus driver with the School Board. During his tenure with the Board he received annual re- appointments to his position. He worked under a 10 month, non-instructional contract with the school board which covered the entire 1986-87 school year. He received annual, non-instructional performance evaluations for each year he was an employee of the school board. The Respondent consistently achieved performance standards on his evaluations and his overall rating was satisfactory. Although he was once disciplined for an episode involving a fight his son was in, while he was transporting his son and other children on a school bus, this infraction was of a personal nature and did not reflect on his skill or competence as a bus driver. During his period of employment from 1981 through March 4, 1987, he never received any disciplinary action regarding his performance as a bus driver. Prior to the instant situation, he had not been disciplined for any infractions of school board rules and policies, or state statutes. On February 25, 1988, bus driver Carol Nesmith was at a railroad crossing at State Road 261, a four lane highway. Her bus was stopped in the right hand lane as pertinent rules and her instructions required, to insure safe negotiation of the railroad crossing. While Ms. Nesmith and her bus was stopped (with students aboard) at the railroad crossing, following safety procedures required of bus drivers, the Respondent approached her bus from the rear. Instead of coming to a complete stop, he changed lanes and passed Ms. Smith's school bus at the railroad crossing, without coming to a complete stop. Mr. Culbert, as a regular practice, always approached a railroad crossing by reducing speed, coming to a stop, opening his window and door in order to look both ways to determine whether a train was approaching. Mr. Culbert testified that he religiously adhered to this practice. On the day in question, however, Mr. Culbert was running a trifle late in his schedule for taking children home from school on his bus because he had been delayed by a train at an earlier railroad crossing. Mr. Culbert, as well as Betty Gates, one of his supervisors, established that the required procedure for approaching and negotiating a railroad crossing could be performed quite quickly, depending upon the habits of the individual driver. There are no rules or regulations governing the time required to complete the "stopping and looking" procedures. Once a school bus comes to a stop, the other safety procedures can be performed in a few seconds and indeed a driver can look both ways when approaching a railroad crossing before coming to a complete stop. Mr. Culbert admitted that he followed these procedures quickly, but maintained that he came to a complete stop and followed the procedures as he normally did, not deviating from the normal practice. In any event, it is found that he failed to come to a complete stop and Ms. Nesmith testified that after he passed her bus, being concerned about the incident, she reported it to her Supervisor, Pat Holland. Ms. Nesmith knew of no other such incident. It was not until March 4, 1987, the day he was notified by his supervisor of his termination, that Mr. Culbert was notified of Ms. Holland's and Ms. Nesmith's concerns about the conduct that occurred on February 25. On March 4, 1987, Mr. Larry Daniels, one of his supervisors, asked him about the incident, whereupon Mr. Culbert denied that he failed to stop at the railroad crossing. In fact, he asked Mr. Daniels to conduct a full investigation of the matter and contact all the students who were in attendance at the incident (on his bus) at the time. As far as Mr. Culbert knew Mr. Daniels never conducted such an investigation. In any event, the Respondent was orally notified on that day of his termination and on the same day Mr. Daniels gave him a letter of termination. The basis for the termination was only the allegation involving his failure to stop at the railroad crossing. The following day, March 5, 1987, Superintendent Hall and Personnel Director Dick Lockner executed a standard Department of Personnel Termination Form regarding the Respondent. Later, on April 8, 1987, without prior notice or hearing, the school board took its final agency action and voted to terminate him. Thereafter, an Administrative Hearing was requested by the Respondent's Union Representative on May 13, 1987. Approximately seven months thereafter the matter was transmitted to the Division of Administrative Hearings for a formal proceeding. Mr. Malcolm Murphy was formerly the Supervisor of the School Board's Department of Transportation. Under his management the Department followed a "progressive discipline model." Under this policy employees were always notified upon their employment of the type of misconduct warranting discipline and the consequences of such misconduct. Mr. Murphy established that alleged violations of school board policy, rules or statutes, such as that involved in this case, would not warrant dismissal for a first offense under prevailing school board policy. The Respondent's offense in this instance is a first offense. Ms. Betty Gates, a former "District Specialist" for the board's Department of Transportation, confirmed that, while the conduct involved herein would be deemed somewhat serious, that dismissal would never be considered as appropriate for a first offense of this nature. It would be considered excessive for an employee who had never committed such an offense. She also established that it was commonly believed by employees, based upon the policy announced to them by the School Board's Department of Transportation, that they would not be dismissed for such an offense as this one, if it were the first such offense. Ms. Gates further opined that the action taken against Mr. Culbert was related to a personal animosity between he and Mr. Daniels, rather than to a violation of professional standards. In support of this belief she recounted an incident where Mr. Daniels had previously attempted to discipline Mr. Culbert for a matter totally unrelated to his employment relationship with the School Board. Mr. Murphy, in his position as Supervisor, could recall no incident of any employee being disciplined in such a serious manner for a first offense. Although he suspended another employee for a second offense involving violation of a rule or school board policy, he did not know of any instance where an employee was terminated even for a second such offense. It was thus unequivocally established that the School Board's policy toward its bus drivers was that no termination should occur for a first offense involving an incident such as failing to come to a complete stop at a railroad crossing, although that is a moderately serious occurrence and should not be allowed to be repeated.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the School Board of Bay County restoring the Respondent to his previous employment position and providing him with back pay and related benefits with interest thereon, at the legal rate, from the time he was wrongfully terminated on March 4, 1987. DONE and RECOMMENDED this 21st day of February, 1989, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5501 PETITIONER'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as a discussion of testimony rather than as a Proposed Finding of Fact. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as irrelevant. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. and 15. Rejected as being immaterial in the de novo context of the instant proceeding. Rejected as irrelevant. Rejected as irrelevant. Accepted in part, but subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, except that the witnesses' name was Nesmith and not Smith. Accepted. Accepted as to the first two sentences. The remainder of this Proposed Finding of Fact constitutes a discussion of testimony and is not a Finding of Fact. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. (There is no paragraph #14). Rejected as constituting a recitation of testimony and not a Proposed Finding of Fact. Accepted. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant and as constituting merely a discussion of testimony. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. COPIES FURNISHED: Franklin R. Harrison, Esquire 304 Magnolia Avenue Panama City, Florida 32402 Pamela L. Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302 Leonard J. Hall Superintendent of Schools Post Office Box 820 Panama City, Florida 32401
Findings Of Fact Davis began working with the Board on September 16, 1974, as a custodian in the maintenance department. In 1980 Davis was transferred to the Stewart Street Elementary School as a custodian. In 1988 Davis was transferred to the Carter-Parramore Middle School as a custodian. On March 23, 1992, Davis was suspended by the Superintendent with pay. On March 25, 1992, Davis was recommended for termination and was suspended without pay by the Board. The suspension and recommended termination were the result of accusations made by Tomeka Mitchell and Tiesha Parker that Davis had made sexually explicit comments to them and had inappropriately touched them. Tomeka and Tiesha both testified regarding their versions of what occurred on January 28, 1992. Two other students, Cheryl Denise Roberts and Lashea Alexander also testified. Based on the demeanor of these witnesses and on the pervasive conflicts in their versions of the events, it is determined that their testimony is not credible or worthy of belief. Tomeka testified that on January 22 or 23, 1992, she and "Sherry" were going to meet Tiesha near the gym and that Davis stopped them, put his arms around Tomeka and Tiesha and said "This is what he wanted" and opened her button. She said nothing else happened. However, she apparently reported to HRS that Davis had touched her breast and unbuttoned her blouse. HRS determined that there was no evidence to verify these allegations. [See Finding of Fact #14] Tiesha said she was going to meet Tomeka, who was already talking to Davis, and when she and Tomeka began to walk away, Davis asked where they were going, called them over to where he was standing, and told them he "wanted some." When they asked what he "wanted," she said Davis pulled their heads together, tried to open her blouse which was buttoned, and then he "did it to Tomeka and looked down her shirt." Tiesha said that Cheryl Roberts and Lashea Alexander were standing next to them and all four discussed what happened and decided to go to the office and report it. On cross-examination, Tiesha acknowledged that Tomeka's blouse was unbuttoned before Davis called them over. Cheryl testified that she saw Davis look down Tomeka's blouse and that she (not Tiesha) was with Tomeka when Davis said he "wanted some." However, when Cheryl talked to Mr. Pace, the principal, on January 28, 1992, she said she had not seen anything, but was reporting what she had been told by Tomeka and Tiesha. Additionally, the information given by Cheryl at the time of the incident, the testimony she gave in her deposition on May 14, 1992, and her testimony at the hearing were inconsistent. Finally, Cheryl never mentioned that Davis had allegedly tried to look into Tiesha's blouse. Lashea's testimony was also contrary to that of Tomeka and Tiesha. According to Lashea's version, Tomeka and Tiesha had told her that Tomeka was afraid to go to class because Davis might say something to her, so Tiesha walked Tomeka part way to class. Lashea was near the gym with Cheryl and she saw Davis try to look into Tomeka's blouse. Lashea and Cheryl discussed what they had seen and Tomeka and Tiesha came back to the gym. Lashea told Tomeka that Davis had tried to look into her blouse and Tomeka said "Yeah, he tried to, but I didn't let him." Lashea denied that Davis tried to look in Tiesha's blouse. However, Mr. Pace recorded that on January 28, 1992, Lashea had not seen anything and had only told him what she was told by Tomeka and Tiesha. The only conclusion that can be drawn from the demeanor of these girls and from the differences in their stories is that no sexually explicit statements were made by Davis and that he did not he touch them in an inappropriate manner. The version of the incident given by Davis is credible and worthy of belief. On January 28, 1992, Davis saw Tomeka and Tiesha in the open corridor near the gym after the final bell for sixth period had rung. They were heading away from the gym. Davis asked them what class they were supposed to be in, and by their responses he thought they were supposed to be in gym. Tomeka's blouse was open and the top few buttons were undone. Davis told her to button her shirt up and he said he was sure that her parents wouldn't want her going around campus "looking like a 10 whore." Davis then told them they should be in class and he put his hand on the upper arm of each girl to guide them in the direction of the class. When it appeared they were going in the correct direction, Davis left them. Davis is a credible witness and his statements at all times between January 28, 1992, and the hearing have been consistent and forthright. According to Mr. Pace, the principal, and Lt. Morris, the school resource officer, Davis is a man of his word who is known to be honest and trustworthy. Further, Davis' reputation in the community is one of honesty and truthfulness. John D. Mathers, a Child Protective Investigator for HRS, sent a letter to Bryant dated March 18, 1992, and therein stated "The victim's statements of language addressed them by Dr. Davis [sic] meets departmental guidelines to verify the allegation of sexual exploitation, i.e. indecent solicitation of a child or explicit verbal enticement, and closing of report with classification of proposed confirmed." While this sentence is so poorly written as to render it unintelligible, Bryant interpreted it as saying that HRS had found that Davis had made inappropriate and explicit sexual comments and that these allegations of sexual exploitation were verified. In fact, the letter from Mr. Mather doesn't quite say that. Additionally, Mather said in his letter that Tomeka Mitchell told him that Davis had touched her left breast and had unbuttoned her blouse, but that no other witness verified Tomeka's allegations, and that those allegations of sexual maltreatment were not classified as proposed confirmed. The letter to Davis from Bryant dated March 23, 1992, advised Davis that the reason for the suspension and recommended termination was Davis' violation of Gadsden County Board Rule 5.112 which provides in pertinent part: Any member of the non-instructional staff may be dismissed by the School Board during his term of appointment, when a recommendation for dismissal is made by the Superintendent, giving good and sufficient reason therefor. Good and sufficient reason shall include but not be limited to: * * * (h) Violation of law, State Board of Education Rules, or School Board Rules. Upon investigation, it has been determined that on January 22, 1992 and January 28, 1992, you made inappropriate and explicit sexual comments to several female students at Carter- Parramore Middle School. The Department of Health and Rehabilitative Services has also completed its investigation and has advised me that based on its investigation and interviews with the victims, their statements regarding your comments verify the allegations of sexual exploitation. Such behavior is violative of Gadsden County School Board rules. This determination by Bryant was based on the "information" he was given in the "final report" prepared by Pace and on the HRS letter. Bryant was unable to articulate the bases for his determination, but that is not surprising when the origin and nature of the "information" he considered is examined. The three men who gathered the information were Cecil Morris, the school resource officer employed by the Gadsden County Sheriff's Office; Rocky Pace, the principal at Carter-Parramore; and James W. Brown, Jr., the assistant superintendent for administrative services. According to Bryant, he was given a "final report" from Pace in a letter dated February 7, 1992, (Exhibit 4) with attachments: Pace's letter to Brown dated January 28, 1992, (Exhibit 5); a case report filed by Lt. Morris (Exhibits 9a and 9b); and a letter of reprimand to Davis from Pace (Exhibit 3). In that letter Pace advised that he had a tape of the interviews of Tomeka, Tiesha, a girl named Aquiana Delapierre, and Davis, however, Pace did not give Bryant the tape until sometime in March, 1992, when Bryant asked for it. Bryant never listened to the tape, but instead read written statements from the girls. No one was able to establish where these written statements came from or how they came to be in Bryant's possession. They first appeared in Lt. Morris' case file when he opened it to prepare for a deposition on July 2, 1992. He doesn't know where they came from or who took them. Pace knew nothing about the statements and did not give them to Bryant. Brown also had no knowledge of the statements. Ironically, there was no written statement from Davis. Bryant says he made his determination based on these written statements which he assumed contained the same information as the tape which he never heard. Bryant did not identify any information which he reviewed that set forth Davis' version of the event. The case report prepared by Lt. Morris contained a brief summary of the accusations made by Tomeka and Tiesha, but Morris apparently never even talked to Davis. In fact, from the testimony of Pace, Morris, and Brown, it cannot even be determined whether any investigation was ever done. Morris talked to Tomeka and Tiesha briefly and then took them to Pace. Pace taped statements from Tomeka and Tiesha and Davis. Morris was in and out of the room during the taping of statements from Tomeka and Tiesha, but he did not hear much of what they said. Brown then came to the school and again talked briefly to Cheryl Roberts because he knew her parents and to some other girls, but he doesn't remember their names. Morris had no investigatory responsibilities in the matter. Pace did no further investigation after he took the taped statements because Brown came to the school and Pace was informed that Bryant had put Brown in charge of the investigation. Brown says he was not in charge of the investigation, but had told Pace to do a thorough investigation and then report his findings to Bryant. The only conclusion that can be drawn is that none of these men did any investigation beyond the interviews conducted on January 28 and 29, 1992. The letter from Pace to Bryant (Exhibit 4), which Bryant calls the "final report," clearly states that Pace thought the investigation was still on going and that action beyond the letter of reprimand (Exhibit 3) may have been warranted at a later date. However the only continuing action involved that of HRS in its abuse investigation, which resulted in a letter which advised that no touching or unbuttoning had occurred. Bryant's accusations against Davis were limited to allegations of explicit and inappropriate sexual comments. These reasons given for the suspension and recommended termination must have been based almost entirely on the letter from Mather at HRS since there was so little competent and probative information considered by Bryant. However, the statements made by Mather in his letter are insufficient to show whether HRS actually took any action against Davis in this matter and no evidence was presented to show whether any such action was taken. Since Bryant never reviewed any statement by Davis regarding his version of the events, Bryant never knew that Davis' words and actions in trying to get the girls to go to their class and to get Tomeka to straighten and button her clothes were routine for Davis. From the time Davis was assigned to Carter-Parramore in 1988 until March 18, 1991, a Mr. White had been the principal at that school. White had asked Davis to assist in keeping order at the school and had authorized Davis to open the gym on cold mornings at around 7:15 a.m. so that early-arriving students could be warm. At times, Davis was the only Board employee on campus and he was to remain in the gym to keep order until other adults arrived. White also used Davis' assistance to break up fights and control campus access by non- students during the school day. With White's knowledge and consent, Davis also directed students to go to class when they were not where they were supposed to be, to straighten up their attire or behavior, and to stay in school and not skip class. Mr. White died unexpectedly in March, 1991, and Pace became the acting principal and ultimately the principal. Pace knew of all these activities by Davis and never told him to restrict himself to duties directly related to his job as head custodian. Pace acknowledges that Davis was friendly and interacted with students and pitched in wherever he was needed. It was entirely consistent with these acknowledged activities of Davis that he would stop two students who were outside after the sixth period bell had rung, would direct them to go to class and would insist that one of them straighten her clothing which was unbuttoned and allowed her breasts to be seen. Finally, the alleged matter involving Aquiana Delapierre must be examined. Aquiana made an allegation against Davis that he said he "wanted some" from her also. Aquiana was subpoenaed to testify at the hearing but she failed to appear. All other documentation of these allegations constitutes hearsay and absent her live testimony, that hearsay cannot form the basis for any findings of fact. Exhibit 9a is the report prepared by Lt. Morris regarding Aquiana's allegations. It is insufficient to support a finding about the alleged incident. Davis was employed pursuant to an annual contract. His contract had been renewed yearly for the preceding eighteen years. Davis had always received satisfactory job ratings. Because of the recommended termination and Davis' suspension in March, 1992, no recommendation or action was taken to renew his annual contract for the 1992-93 school year. Davis' contract for the 1991-92 school year expired on June 30, 1992. Davis has no statutory entitlement to renewal of his contract, but no evidence was presented to show any reason why his annual contract would not have been renewed but for this case. Further, Davis' position has not been filled by another employee. The clear fact is that Davis' contract would have been renewed but for these wrongful allegations and this action which followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Gadsden County enter a Final Order and therein: Award to Charlie C. Davis back pay for the period from March 25, 1992, until the expiration of his annual contract. Reinstate Charlie C. Davis to his position as head custodian at Carter- Parramore Middle School and renew his annual contract for that position for the entire 1992-1993 school year. Award to Davis back pay for the period covered by the annual contract for 1992-1993 during which has not been working or being paid. Deny the request for Davis' attorney's fees and costs necessitated for his defense against the suspension and termination on March 25, 1992. DONE and ENTERED this 23rd day of September, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2375 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Gadsden County School Board 1. Proposed findings of fact 1-7, 10-14, 16, 17, 19, 21, 22, 24, 25, 27, 29-35, and 38-41 are subordinate to the facts actually found in this Recommended Order. 2. Proposed findings of fact 18, 20, 26 and 37 are irrelevant to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Charlie C. Davis Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5. Proposed findings of fact 6-18 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 9, 15, 23, 28, and 36 are unsupported by the credible, competent and substantive evidence. COPIES FURNISHED: Robert H. Bryant, Superintendent Gadsden County School Board Post Office Box 818 Quincy, FL 32351 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400 Deborah J. Stephens Attorney at Law The Ausley Law Firm 227 South Calhoun Street Tallahassee, FL 32302 David Brooks Kundin Attorney at Law Dobson & Kundin, P.A. Post Office Box 430 Tallahassee, FL 32302
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, whether such conduct provides the School Board of Dade County with just or proper cause to take disciplinary action against her. If so, what specific disciplinary action should be taken
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent Respondent has been employed by the School Board since May of 1984. She is currently under suspension pending the outcome of this disciplinary proceeding. For the duration of her employment with the School Board, Respondent has held a school bus aide position and been assigned to the School Board's South Regional Transportation Center (Center), the director of which, since May of 1994, has been Patricia Snell. At all times material to the instant case, Respondent was scheduled to work a total of six hours a day: three hours in the morning (morning shift) and three hours in the afternoon (afternoon shift). (In between the morning and afternoon shifts, she was off duty for several hours.) The Collective Bargaining Agreement As a school bus aide employed by the School Board, Respondent is a member of a collective bargaining unit represented by AFSCME and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: selection and promotion of employees; separation, suspension, dismissal, and termination of employees for just cause; the designation of the organizational structure of the DCPS and the lines of administrative authority of DCPS. It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; Contract out for goods or services; and, Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Article IX, Section 13, of the AFSCME Contract addresses the School Board's Employee Assistance Program. It provides as follows: AFSCME and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article IX, Section 14F, of the AFSCME Contract essentially recites the provisions of School Board Rule 6Gx13-4- 1.05, which is the School Board's "Drug Free Work Place General Policy Statement." It provides, in pertinent part, as follows: DCPS [Dade County Public Schools] and AFSCME recognize that substance abuse in our nation and our community exacts staggering costs in both human and economic terms. Substance abuse can be reasonably expected to produce impaired job performance, lost productivity, absenteeism, accidents, wasted materials, lowered morale, rising health care costs, and diminished interpersonal relationship skills. DCPS and AFSCME share a commitment to solve this problem and to create and maintain a drug-free work place. DCPS is responsible for the instruction and well-being of the students entrusted to its care. A consistent message needs to be communicated to DCPS students: the use of illegal drugs, the abuse of alcohol, and the misuse of prescription drugs is unacceptable. Policy Objectives To promote a healthy, safe working and learning environment; To seek the rehabilitation of employees with a self-admitted or detected substance abuse problem; To eliminate substance abuse problems in the work place; To provide a consistent model of substance-free behavior for students; To provide a clear standard of conduct for DCPS employees; and To hire drug-free employees. Policy Statement- Illegal Drugs Drug abuse by employees interferes with the educational and work process and compromises the safety and well-being of staff and students. Employees are expected to conduct themselves in a manner consistent with the following provisions: a. Employees on duty or on School Board property will not manufacture, distribute, dispense, possess, or use illegal drugs, nor will they be under the influence of such drugs. . . . Policy Statement- Alcohol and Prescription Drugs Alcohol, prescription, and over-the-counter drugs are legal and readily available. Generally safe and acceptable, these drugs, when abused over time or used in combination with one another, can result in chemical dependency or poly-drug addiction. Employees are expected to conduct themselves in a manner consistent with the following provisions: Employees on duty or on School Board property will be free of intoxication from alcohol. Employees in safety-sensitive positions, as defined herein, will be free of measurable alcohol concentrations. Further, employees will not manufacture or use alcoholic beverages while on School Board property or on duty. . . . Policy Statement- Employee Physical Examination/Screening Health Services Drug screening will be included in all physical examinations; existing employees and contracted persons in covered positions will be screened under the Omnibus Transportation Employee Testing Act (OTETA) of 1991, and as required under existing labor contracts, statutes, State Board Rules, and Dade County Public Schools Board Rules. Circumstances under which testing may be considered include, but are not limited to, the following: observed use of illegal drugs and/or abuse of alcohol during work hours; apparent physical state of impairment of motor functions; marked changes in personal behavior on the job not attributable to other factors; . . . Drug and/or alcohol screening shall be conducted by Board approved, independent, certified laboratories utilizing recognized techniques and procedures as described in the DCPS Drug-Free Work Place Technical Guide, which is incorporated by reference into this Contract, and made a part thereof. The protocol for drug screening shall include a split sample and chemical immunoassay screening procedure. In the event initial test results are screened positive, such results will be confirmed and verified by the Gas Chromatography Mass Spectrometry (GC/MS) Test. Medical records and information relating directly thereto will be maintained in strict confidentiality. Any laboratory contract shall provide that the contractor's records are to be kept confidential under provisions of Florida laws. DCPS shall establish a system of maintaining records to include both the district's and the contractor's record of applicant and employee urinalysis and blood alcohol results. The contract and the record maintenance system must have specific provisions that require that employee records are maintained and used with the highest regard for employee privacy consistent with Florida's Public Records Act and the purpose of achieving a drug-free work place. DCPS recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of DCPS, where possible, to seek rehabilitation of employees with a self-admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board believes will not be assisted by rehabilitation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to School Board policy, applicable Florida Statutes, State Board of Education Rules, Omnibus Transportation Employee Testing Act (OTETA) of 1991, and applicable provisions of collective bargaining agreements. Article XI of the AFSCME Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled "Due Process." It provides as follows: A. Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed: verbal warning; written warning (acknowledged); and, Conference-for-the-Record. Conference-for-the-Record shall be held as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record). The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Dismissal, suspension, reduction-in-grade, and non-reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI is entitled "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation. . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. . . . According to Article V, Section 18, of the AFSCME Contract, the term "workday," as used in the agreement, means "the total number of hours an employee is expected to be present and performing assigned duties." The definition of "unauthorized absence," as used in the AFSCME Contract, is found in Article V, Section 27, thereof, which provides as follows: Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. The School Board's Rules As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,1 including the aforementioned School Board Rule 6Gx13-4-1.05, as well as School Board Rules 6Gx13-3E-1.10, 6Gx13-4-1.06 , 6Gx13- 4A-1.21, and 6Gx13-4E-1.011.2 School Board Rule 6Gx13-3E-1.10 School Board Rule 6Gx13-3E-1.10 incorporates by reference the provisions of the School Board's Transportation Rules and Policies Manual (Manual), including those set forth below, of which Respondent was timely made aware. Section 4 of the Manual describes "school bus aide responsibilities" and provides as follows: There is no requirement in either the law or the regulations that require the assignment of school bus aides to school buses. Dade County however, has elected to assign aides to some but not all of its school bus routes. Aides are not automatically placed on a bus because it is carrying exceptional education students. School bus aides are assigned to act as attendants on the school bus with the primary duty of maintaining order on the bus to allow the driver to give full attention to driving. Under the direction of the driver the aide works with children, school staff and parents in loading and unloading operations and in seeing to the needs of exceptional education students. The work of the aide must allow the driver to devote full time and attention to the safe operation of the vehicle. The aide must understand that the driver is in charge of the bus and is responsible for its safe operation. School Bus Aide responsibilities are: Bus aides must be clean and neat in appearance at all times (in prescribed uniform while on duty), must not use profane language, nor be under the influence of drugs or alcohol, nor use tobacco in the presence of students. Bus aides must abide by all safety rules and regulations which pertain to drivers but which do not relate specifically to driving tasks. Bus aides must be familiar with the rules of student conduct in order to assist in student behavior management and should have a working knowledge of the capabilities and limitations of the various categories of exceptional children. The aide shall prepare and maintain an accurate seating plan. Bus aides should be familiar with the use and location of all safety or emergency equipment (e.g., first aid kit, fire extinguisher, reflector) and should assist the driver in using this equipment should the need arise. The school bus aide must understand and learn how to assist the driver should it become necessary to evacuate the bus in an emergency. In dealing with physically handicapped students, bus aides will assume primary responsibility for loading and unloading students, must be familiar with the operation of wheelchair lifts and use of restraining devices and other equipment used in the transportation of the handicapped. Additionally, bus aides must ensure that wheelchairs are properly attached to their tie-down devices, and that use of such devices is consistent with the specification requirements as determined by the year of the school bus. The school bus aide should assist the driver in preparing reports, checking the working condition of safety equipment, and performing routine cleaning jobs. The bus aide and driver must have a good working relationship. The school bus aide should become familiar with the route, with the loading and unloading procedures, and be attentive to the location of the bus at all times along the route. The aide should be able to guide a substitute driver when this becomes necessary. The school bus aide shall render first aid, if necessary, to the limits of his/her training and abilities, and seek prompt aid by the best possible means available. This assistance shall be limited to that which may be normally expected of a reasonably prudent person. The school bus aide shall check under every bus bench at the end of every run. The school bus aide shall sit with or behind the last student on the bus in order to observe and monitor all the students on the bus. As a reading of Section 4 of the Manual reveals, the duties of a school bus aide are safety-sensitive and involve direct contact with students. Section 9 of the Manual describes the Department's "attendance policy" and provides as follows: ATTENDANCE RESPONSIBILITES School bus driver/aides are expected to be prompt and punctual in their attendance on all work days in accordance with the current calendar and their assigned schedule or contract. ABSENCES, AUTHORIZED For absences to be authorized, they must be reported to the driver's/aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time but not later than prior to the next scheduled report time. Even in an emergency every possible effort must be made to inform the Dispatcher. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Proper forms shall be completed promptly for payroll purposes. ABSENCES, UNAUTHORIZED Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver/aide does not report to work fifteen (15) minutes after the scheduled report time, or does not call in absent before their report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. NOTIFICATION OF ABSENCE Drivers/aides must notify their Transportation Center's Dispatch Office as soon as they have determined they cannot report to work. Do not make arrangements on your own for a substitute! All arrangements must be made by the Dispatch Office. If you will not be reporting for work on regular school days, call in immediately. Speak with the Dispatcher, or your Field Operations Specialist. If you cannot report to work because of an emergency situation, contact the Dispatch office as soon as you possibly can. If the situation requires you to leave the area, have a relative or friend contact the office in your place. If your absence will occur sometime in the future, give the Dispatch Office as much advance notification as possible. When you contact the dispatch office, explain the reason for your absence, how long you will be off, and the estimated date of your return. If you will be off work for more than one (1) day, you must contact the office each day, prior to your report time, with a complete update of the situation. The only times you do not have to contact the office on a daily basis are as follows: Admission to a hospital as a patient. Maternity leave A doctor's work release for a specified number of days Extended sick leave Approved leave of absence If you are out of town CHECK-IN POLICY All employees are expected to arrive at work on or before their scheduled report time. Drivers/aides will be given a five (5) minute grace period to report to work, during which no disciplinary or financial action will be taken. For example, if you are scheduled to report for work at 6:00 a.m., as long as you sign-in by 6:05 a.m. you will be allowed to go out on your assigned route, with no repercussions. Drivers/aides who report to work 6-15 minutes after their scheduled report time will be considered "tardy." Tardy drivers/aides will be permitted to work. However, the Dispatch Office may assign a stand-by or substitute driver/aide to the route of the tardy driver/aide. Driver/Aides more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers/aides and not allowed to drive their route. A record will be kept of the amount of time the employee was late. Lost time will be accumulated, and employees will be docked pay in 1/2 day increments. Drivers/aides who report to work 16 or more minutes after their scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on unauthorized leave-without pay (ULWOP) and shall be subject to disciplinary action in accordance with the AFSCME Contract. Extenuating circumstances will be evaluated by the Center Director, and upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. PAPERWORK It is the driver's/aide's responsibility to report to the supervisor to complete and/or produce all required paperwork related to their absence on the first workday upon their return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. School Board Rule 6Gx13-4-1.06 School Board Rule 6Gx13-4-1.06 is the School Board's "tobacco-free work place" rule. It provides, in pertinent part, that, as of September 1, 1989, the "[u]se of tobacco products is not permitted . . . on school buses." School Board Rule 6Gx13-4A-1.21 School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. School Board Rule 6Gx13-4E-1.011 School Board Rule 6Gx13-4E-1.011 addresses the subject of "absences and leaves" and provides as follows: No leave shall be granted for any reason without prior approval of the Superintendent of Schools except leave occasioned by sudden illness or emergency. Any employee who is absent for other than reasons of sudden illness, emergency, or without prior approval shall be deemed to have been willfully absent without leave. The Center's Check-In Procedures In August of 1994, a few months after she assumed her position as the director of the Center, Patricia Snell sent the following memorandum concerning "check-in procedures" to all of the school bus drivers and school aides assigned to the Center: All drivers and aides must pick-up their bus keys or tag from the key board in the Dispatch office. This is the method of checking in for your shift. If you do not check in, your route will be given to a substitute driver and you will be considered NO CALL/NO SHOW for that shift. All drivers and aides must return their keys and tags to the key board immediately after each shift. Dispatch will have a list of field trips and those drivers and aides will then turn their keys and tags in the slot in the dispatch office if after hours. If there is a problem with your bus, turn in bus keys with the D.R.R. to Dispatch. If you are assigned a spare, then the spare bus keys will be placed on your assigned key hook prior to your shift. Your regularly assigned bus will not be returned until your assigned spare bus is fueled, swept, trash is emptied, windows up and parked in the proper parking space. You need not sign in. The Office Helpers and Dispatchers will keep track of your arrival times by use of the key board. The Tardy Policy will be strictly enforced. Employees who are 6-15 minutes late These employees are "late" or "tardy" and appropriate progressive discipline will be initiated. Such employees will be permitted to work their shift. Employees who are 16 or more minutes late These employees are recorded as "unauthorized leave without pay" and are not permitted to work that shift. Appropriate disciplinary action will be initiated. Respondent received her copy of this memorandum on August 25, 1994. Previous (Pre 1994-1995 School Year) Warnings Given Respondent Regarding Attendance and Leave Unauthorized leave was a subject with which Respondent should have been familiar at the time she received Snell's memorandum inasmuch as Respondent had received disciplinary warnings from her supervisors concerning the matter in the past. For instance, on February 11, 1988, she had received a memorandum (dated February 3, 1988) from Jack Schee, the then- director of the Center, which read as follows: While signing the payroll on January 29, 1988, I became very disappointed to discover that you had already started the new fiscal year with unauthorized leave without pay. This carefree, unresponsible attitude has got to change. The department, and more specifically your co-workers, count on your presence daily to accomplish our mission to provide the students of the Dade County schools with whatever is necessary to enhance their education. All employees in the Department of Transportation are being monitored for poor attendance and unauthorized leave without pay. In order to improve attendance, I am prepared to follow-through with any necessary action, such as conferences or suspensions, as the situation merits. Our records indicate that this is your 1[st] unauthorized absence. Per AFSCME Contract, Article XII, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totaling ten or more work days during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." In addition, Respondent had received written Operational Reminders for unauthorized absences on July 6, 1988, and September 5 and 7, 1989. Furthermore, on May 10, 1990, Schee had held a conference-for-the-record with Respondent to discuss Respondent's attendance record. Schee subsequently prepared and furnished to Respondent a memorandum in which he summarized what had transpired at the conference. Schee's memorandum read as follows: A conference-for-the-record was held in my office on May 10, 1990 to discuss the attendance record of Ms. Jennifer Gardner, bus aide. In attendance at this conference were Ms. Gardner, Ms. Karen Crapps, route manager, and myself. Ms. Gardner stated that she did not want to have a representative present at the conference after I explained that she had the right to representation. I explained that on numerous occasions, the most recent being May 4, 1990, Ms. Gardner had failed to report to work and did not call the office to inform us of her absence. In addition, on May 4, 1990 Ms. Gardner reported to work thirty-five minutes late and missed her work assignment. On May 8, 1990, her assigned driver, Ms. Helen Spence, informed the office that Ms. Gardner reported to work on May 7, 1990[,] but that she fell asleep during most of her Southwood run. Ms. Gardner then stated that she had no comment to make concerning her attendance record. She stated that she did fall asleep on the bus but did not sleep the entire Southwood run. I concluded the conference by stating that her attendance record would be closely monitored and that if improvement was not made stronger disciplinary action would follow. I also informed Ms. Gardner that she would receive a memorandum of understanding concerning her attendance. The "memorandum of understanding" to which Schee referred was received by Respondent on May 16, 1990. It read as follows: On May 10, 1990 we held a conference-for-the- record concerning your attendance on the job and your failure to inform the office when you are not coming to work. I expressed the fact that I was extremely disappointed that your attendance has not improved since we have discussed this problem many times before. I then explained to you that if you continue to fail to report to work and do not inform the office then I would forced to request more serious disciplinary action. By way of this memorandum I am instructing you to inform the office at least 30 minutes before your reporting time on any occasion in which you cannot come to work. I am also instructing you that you will not be allowed to report to work late and expect to be paid for that time. If your performance does not improve I cannot guarantee your employment for summer school session. As acknowledgment that you have received this memorandum, and understand it, please sign below and return to me. A copy is provided for your purpose. Respondent had also received written Operational Reminders for unauthorized absences on May 6, 7 and 8, 1991. On May 15, 1991, she received a memorandum (dated May 9, 1991) from Schee concerning these unauthorized absences. The memorandum read as follows: During the payroll period ending May 9, 1991, you chose to take Unauthorized Leave Without Pay on May 6, 7 and 8th. You are professionally accountable to report to work on time and/or call the operations office no less than one-half hour prior to your check- in time, to inform them of your absence. Failure to call within the prescribed time constitutes Unauthorized Leave Without Pay. The attendance of all employees in our department is monitored daily. In order to improve attendance, I am prepared to follow through with any necessary action, such as a conference-for-the-record or suspension, as the situation merits. Our records indicate that this is your 3rd unauthorized absence. Per AFSCME Contract: Article XI, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totalling ten or more working days during the previous twelve-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." Warnings Given Respondent Regarding Attendance and Leave During the 1994-1995 School Year On November 16, 1994, Respondent received a written Contact Report from the Center's coordinator, Wynona Sleeth, concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: Six half days NCNS [No Call/No Show]. One whole [day] unauthorized. Any day you do not have time available is unauthorized. Any time you call in after due time is NCNS. Sleeth subsequently, on or about December 21, 1994, provided Respondent with the following Letter of Deficiency: This is to inform you that you have accumulated 17 Absences Tardies NC/NS 9 ULWP [unauthorized leave without pay] since 8-29-94. I am reminding you that 3 consecutive days of ULWP constitutes abandonment of position and may be subject to a recommendation for disciplinary action not excluding suspension and/or termination. An accumulation of 10 or more days of ULWP may warrant a recommendation for termination. Your job performance is important to us and we would like to assist you to improve. If you need assistance, please come to the operations office to discuss this matter. On May 11, 1995, Snell and Sleeth held a conference- for-the-record with Respondent concerning Respondent's attendance record. Snell prepared and provided to Respondent on May 17, 1995, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: A Conference-for-the-Record was held in my office on May 11, 1995. Yourself, Ms. Wynona Sleeth, Coordinator and this administrator were present. The conference was held to discuss your attendance to date. You had notification of [your] right to union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed by the District since May 2, 1984. You were reminded of memos you had received and signed notifying you of this school year's absenteeism. A calendar highlighting the days you were absent was explained to you and you were given a copy of Article XI, Section 1(D) of the union contract. You were asked if you needed the Employee Assistance Program. You replied that you did not need it. I then read the [written absence from] worksite directive to you and what you were required to do from this point on and that non-compliance could lead to further disciplinary measures up to and including suspensions or termination. Respondent had received a copy of the "[written absence from] worksite directive" the day of the conference-for-the- record. It read as follows: Please be advised that you have been absent forty-four days (44) days from the worksite during the 1994/95 school year. Since your absence from duties adversely affects the effective operation of this worksite, you are apprised of the following procedures concerning future absences: Intent to be absent must be communicated directly to this administrator or the administrator on duty before your assigned shift. Absence for illness must be documented by your treating physician and a written medical note presented to this administrator upon your return to the site. These directives are in effect upon receipt of this notice and are necessary to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities and could lead to further disciplinary action up to and including suspensions or termination. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1994-1995 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 26 days: August 30, 1994; September 28, 1994; October 19, 20, 26 and 31, 1994; November 2, 10 and 28, 1994; December 22, 1994; January 25, 1995; February 8, 9, 14 and 16, 1995; March 7, 10 and 22, 1995; April 17, 26 and 28, 1995; May 1, 3, 17 and 26, 1995; and June 5, 1995.3 Respondent was offered a contract for the following school year and she accepted the offer. The 1995-1996 School Year On October 2, 1995, Respondent received a written Contact Report from Sleeth concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: You had 9 hours of unauthorized absences for the pay period 8/25-9/7/95. You need to work on having a good attendance record. On October 18, 1995, Snell observed Respondent smoking a cigarette on a school bus. Respondent knew or should have known that such conduct was prohibited. Snell confronted Respondent and reminded her that smoking tobacco products on a school bus was forbidden. On December 12, 1995, Respondent received a written Transportation Operations Procedures Reminder from Sleeth concerning unauthorized absences on August 28 and 30, 1995; September 14, 1995; October 6 and 26, 1995; and November 6 and 29, 1995. On March 5, 1996, Snell held a conference-for-the- record with Respondent at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 14, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On March 5, 1996, at 10:15 a.m. a Conference- for-the-Record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not want union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of Unauthorized leave. Since August 28, 1995, you have accumulated 15 unauthorized absences; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19 and 1/23/96. Your absence from your duties directly impacts the effective operation of this worksite. You received a copy of Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract and these documents were reviewed with you. District Support Programs are available for you to contact at 995-7111 if you so desire. You stated that you understand the seriousness of the problem and will try to improve your attendance. Any further instances of Unauthorized Absences may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. Respondent also received from Snell on March 14, 1996, the following written warning (dated March 11, 1996): As of January 23, 1996, you have been absent on 15 occurrences without authorization. As per the AFSCME contract, Article XI, Section 4-B[:] "Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence." You are hereby officially warned that if you continue to have unauthorized absences disciplinary action my result, up to and including suspension, termination, or non- reappointment. On April 30, 1996, Respondent received a written directive from Snell to report for another conference-for-the- record in Snell's office at 9:15 a.m. on May 7, 1996, to discuss her "unauthorized leave and job performance." Respondent failed to report as directed. The conference-for-the-record was rescheduled for May 17, 1996,and ultimately held on that date. Snell prepared and provided to Respondent on May 28, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Friday, May 17, 1996, at 9:15 a.m. a conference-for-the-record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave. Since August 28, 1995, you have accumulated 23 occurrences of unauthorized leave which total 12 1/2 days; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19, 1/23/96, 4/2, 4/4, 4/17, 4/26, 4/29, 5/3, 5/13, and 5/16/96. Your absence from your duties directly impacts the effective operation of this worksite. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract were reviewed. The District Support Agency was offered and is available for you and may be contacted at 995-7111 if you so desire. You agreed to call in as soon as you know you are going to be out and to bring documentation in the next working day. Your record of unauthorized absences will be reviewed and this review may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1995-1996 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 30 days during the regular school year: August 28 and 31, 1995; September 14, 1995; October 6 and 26, 1995; November 6 and 29, 1995; December 4, 1995; January 5, 8, 10, 12, 18, 19 and 23 1996; February 16, 1996; March 19, 21, 26 and 28, 1996; April 2, 4, 17, 26, and 29, 1996; May 3, 13, 16 and 17, 1996; and June 4, 1996.4 Respondent was offered a contract for the following school year and she accepted the offer. The 1996-1997 School Year On September 4, 1996, and October 2, 1996, respectively, Respondent reported to work six and ten minutes after the scheduled starting time (6:00 a.m.) of her morning shift. On both of these occasions she received a written Transportation Operations Procedures Reminder regarding her obligation to report to work on time. Respondent also received written Transportation Operations Procedures Reminders for unauthorized absences in November of 1996, on the 5th (afternoon shift), 13th (afternoon and morning shifts), 14th (afternoon and morning shifts), 15th (afternoon shift), 20th (afternoon and morning shifts) and 26th (afternoon shift) of that month, and for reporting eight minutes late to work for her afternoon shift on November 25, 1996. Along with the written Transportation Operations Procedures Reminders concerning her November 5 and 13, 1996, unauthorized absences, Respondent was given an explanation of the provisions of Section 9 of the School Board's Transportation Rules and Policies Manual and Article V, Section 27, of the AFSCME Contract, as well as copies of these provisions. The written Transportation Operations Procedures Reminders concerning Respondent's November 14, 15, 20, and 26, 1996, unauthorized absences, and her tardiness on November 25, 1996, were each accompanied by the following "verbal warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On December 6, 1996, Respondent was referred by Keith White, an administrative assistant at the Center, to the School Board's Employee Assistance Program because of his "concerns" regarding Respondent's unauthorized absences. Respondent was advised of this supervisory referral on December 9, 1996. Respondent declined to participate in the School Board's Employee Assistance Program and continued to have erratic attendance. Respondent received, on January 5, 1997, and March 6, 1997, written Transportation Operations Procedures Reminders concerning her unauthorized absences and tardiness, each of which contained the following "written warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On March 11, 1997, Snell held a conference-for-the- record with Respondent, at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 20, 1997, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Tuesday, March 11, 1997, at 10:00 a.m. a conference-for-the-record was held with you in the office of the Director, South Regional Transportation Center. In attendance were Ms. Willie McKinney, Coordinator, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since 5/2 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave and job performance. Since March 19, 1996 you have accumulated 28 whole days of unauthorized leave from 42 occurrences. Your absence from your duties directly impacts the effective operation of this work site. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract, along with all attached warnings were reviewed. A referral to the District Support Agency [Employee Assistance Program] was made on December 6, 1996. The case was closed due to the fact that you declined to participate. You agreed to call in as soon as possible when you must be absent and to bring documentation in the next working day. You also agreed that you would not be absent unless absolutely necessary. Your record of unauthorized absences will be reviewed with Transportation Administration and the Office of Professional Standards and may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. By memorandum dated March 27, 1997, Snell brought the matter of Respondent's "attendance problems" to the attention of Jerry Klein, the senior executive director of the School Board's Transportation Department, and inquired of Klein if he "would like to move forward with [the] dismissal of Ms. Gardner." Klein, on April 1, 1997, sent the following memorandum to Barbara Moss, an executive director in the School Board's Office of Professional Standards: Ms. Jennifer M. Gardner, School Bus Aide, South Transportation Center, employee #145489, has accumulated 28 days of Unauthorized Leave Without Pay (ULWP) in the last 12 months. Attached please find supportive documentation from Ms. Pat Snell, Director, South Transportation Center. It is requested that Ms. Gardner be recommended for dismissal for violation of Article XI, Section 4(B) of the Collective Bargaining Agreement, excessive absenteeism. Your assistance in obtaining Board approval is appreciated. After reviewing the matter, Moss (by memorandum received by Respondent on April 17, 1997) directed Respondent to appear at a conference-for-the-record on April 30, 1997, in the Office of Professional Standards to discuss Respondent's "attendance to date, and [her] future employment status with the Dade County Public Schools." The conference-for-the-record was held on April 30, 1997, as scheduled. Moss subsequently prepared and later, on June 3, 1997, provided to Respondent a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Moss wrote the following: Action Taken You were offered an opportunity to resign your position with Dade County Public Schools. The following directives are herein delineated which were issued to you during the conference concerning future absences: Intent to be absent must be communicated directly to the designated supervisor. Absences for illness must be documented by your treating physician and a written medical note presented to the designated supervisor upon your return to the site. If it is determined that future absences are imminent, leave must be considered and procedures for Board approved leave implemented if eligible to apply for leave. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to the operation of the work unit, to the services provided to students, and to insure continuity of the educational program. Noncompliance with these directives will necessitate review [by] the Office of Professional Standards for the imposition of disciplinary measures. During the conference, you were provided with a copy of School Board Rule 6Gx13-4A-1.21, Employee Conduct, and School Board Rule 6Gx13-4C-1.02, Non-instructional Personnel. You were advised of the high esteem in which employees are held and of the District's concern for any behavior which adversely affects performance. You were reminded of the prime directive to maintain a safe working environment for all students and that your actions violated this directive. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Senior Executive Director in the Office of Professional Standards and the Associate Superintendent in the Office of Labor Relations and Personnel Management. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendations will compel formal notification of the recommended action or disciplinary measures to include: a letter of reprimand, suspension, demotion, or dismissal. You were apprised of your right to clarify, explain, and/or respond to any information recorded in this conference by summary, and to have any such response appended to your record. On June 5, 1997, Respondent reported for work with the smell of alcohol on her breath. Furthermore, she was unsteady on her feet and her speech was slurred. After conferring with Klein and Moss, Snell directed Respondent to submit to alcohol and drug testing at the Baptist Medical Group's facility in Homestead, Florida. Respondent went to the facility that same day5 and submitted to breath-alcohol testing, which revealed that Respondent had a breath-alcohol level of .191 and that she was under the influence of alcohol to the extent that her normal faculties were impaired. At the facility that day (June 5, 1997), Respondent also provided a urine specimen for testing. The bottle containing the specimen was labeled and sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. It was then sent, along with a partially filled out (by the collector and donor) D.O.T. Custody and Control Form, to LabCorp's laboratory in North Carolina for analysis and testing. The labeled and sealed container with the specimen and accompanying form were received by LabCorp on June 7, 1997. Adequate procedures were employed to ensure that the specimen was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the specimen. An initial immunoassay screening of Respondent's urine specimen indicated the presumptive presence of the unique metabolites produced when cocaine and marijuana are ingested and metabolized in the body. Additional laboratory testing of the specimen was then performed to verify the results of the immunoassay screen previously performed. Gas chromatography-mass spectrometry, a reliable and accurate method of confirmatory testing, was utilized. The gas chromatography-mass spectrometry analysis of Respondent's urine specimen was positive for the presence of the cocaine and marijuana metabolites in concentrations consistent with, and indicative of, Respondent's ingestion of cocaine and marijuana prior to the collection of her urine specimen. The drug test results were reported to the School Board and the Medical Review Officer (at the National Medical Review Offices, Inc., in Los Angles, California). On June 10, 1997, Respondent received a memorandum from Snell directing Respondent to contact the Medical Review Officer "as soon as possible." On June 10, 1997, after examining the test results and speaking with Respondent, who admitted that she had used both cocaine and marijuana, the Medical Review Officer verified the test results. He determined, based upon his conversation with Respondent, that there was no legitimate medical explanation for the presence of the cocaine and marijuana metabolites in the urine specimen Respondent had provided. On June 11, 1997, Moss held a conference-for-the-record with Respondent. The results of the alcohol and drug tests to which Respondent had submitted were discussed at the conference. Upon being told of the test results, Respondent stated, "I don't know about the cocaine, but I am aware of the marijuana. I was very depressed and was with some friends who were using marijuana and joined them in using." She further stated that she did not drink alcoholic beverages when she worked. Also addressed at the conference were Respondent's unauthorized absences. During the 12-month period preceding the conference (June 12, 1996, to June 11, 1997), she had been absent without authorization on the following 37 days for a total of 147 hours or 24.5 "workdays," as that term is defined in Article V, Section 18, of the AFSCME Contract: July 2, 1996 (3 hours); July 29, 1996 (3 hours); October 31, 1996 (3 hours); November 5, 1996 (3 hours); November 13, 1996 (6 hours); November 14, 1996 (6 hours); November 15, 1996 (3 hours); November 19, 1996 (3 hours); November 20, 1996 (6 hours); November 26, 1996 (3 hours); December 4, 1996 (3 hours); December 11, 1996 (6 hours); December 13, 1996 (3 hours); December 18, 1996 (6 hours); December 19, 1996 (3 hours); December 20, 1996 (3 hours); January 8, 1997 (3 hours); January 22, 1997 (3 hours); January 23, 1997 (6 hours); January 27, 1997 (6 hours); February 3, 1997 (6 hours); February 7, 1997 (3 hours); February 12, 1997 (6 hours); February 18, 1997 (3 hours); February 19, 1997 (6 hours); February 20, 1997 (3 hours); February 24, 1997 (3 hours); February 26, 1997 (3 hours); March 3, 1997 (3 hours); March 20, 1997 (3 hours); March 24, 1997 (6 hours); April 15, 1997 (3 hours); April 21, 1997 (6 hours); April 24, 1997 (3 hours); May 12, 1997 (3 hours); May 23, 1997 (3 hours); and June 5, 1997 (3 hours). Respondent was given another assignment at the Center pending further School Board review of her employment At its July 23, 1997, meeting, the School Board suspended Respondent and initiated a dismissal proceeding against her "for just cause, including but not limited to excessive unauthorized absence and violation of Drug-Free Work Place Policy."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board. DONE AND ENTERED this 24th day of February, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1998.
The Issue Whether Petitioner, Palm Beach County School Board ("Petitioner" or "School Board") proved by clear and convincing evidence that it has just cause to discipline Respondent, Jeffrey Schector, and, if so, what is the appropriate penalty.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: The School Board is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all times relevant to this case, Respondent was employed as a math teacher at Eagles Landing Middle School in the School District of Palm Beach County, Florida. A Collective Bargaining Agreement existed, which governed relations between the School Board and certain employees, including Respondent. Resp. Ex. 7. Article II, Section M of the Collective Bargaining Agreement, Discipline of Employees (Progressive Discipline), provided, in relevant part: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this agreement. Further, an employee shall be provided with a written notice of wrong doing, setting forth the specific charges against that employee prior to taking any action. * * * 5. Only previous disciplinary actions which are a part of the employee's personnel file which are a matter of record as provided in paragraph 7 below may be cited. * * * 7. Except in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation * * * Written Reprimand * * * Suspension Without Pay * * * Dismissal . . . . Respondent acknowledged receipt of the School Board's Code of Ethics on October 13, 2010. See Pet. Ex. 1. While teaching at Eagles Landing Middle School, Respondent received a Memorandum of Specific Incident dated January 29, 2013, for a lack of professionalism displayed during interactions with the mathematics team. Pet. Ex. 2. Written Reprimand on December 2, 2013 Respondent was disciplined and issued a written reprimand on December 2, 2013, for violations of School Board policies regarding Commitment to Student Principles, Code of Ethics, and state statutes regarding the education professional. He had been found to have engaged in inappropriate horseplay with a student which ended with the student falling to the floor. Additionally, Respondent tossed a student's crutches from his classroom and referred to the student as a "cripple." In the reprimand, Respondent was advised to cease and desist from engaging in the same or similar conduct in the future, and, if he did not, he would be subject to further discipline up to and including termination. Pet. Ex. 7. The evidence during the hearing reflected that Respondent had received several recent performance evaluations during his tenure with the School Board. For the 2013 school year, his performance evaluation was "effective." For an evaluation submitted April 17, 2014, he received "highly effective" marks in instructional practice. For the 2015 school year, he received an annual evaluation of "highly effective" for instructional practice, "effective" for student growth, "highly effective" for deliberate practice, and "highly effective" for evaluation level. Resp. Ex. 4. Classroom Incident on May 4, 2015 Respondent was teaching math to eighth-grade students in a portable building at Eagles Landing Middle School. Near the end of the lesson, Respondent became aware that two male students were engaged in horseplay with another student, J.G.1/ One of the two male students grabbed a water bottle from J.G. intent on annoying and/or harassing J.G. This horseplay caused the water bottle top to come off, resulting in water spewing on several of the boys and also dousing several school documents Respondent had on his desk. Upon seeing the mess that was created, Respondent stood up and screamed "I am fucking tired of this shit and I don't appreciate having my stuff destroyed." The comment was not directed at anyone in particular. Respondent then took the water bottle, walked to the back door of the classroom, and threw it outside. He then went back to his desk and, as he put it, "was stewing about what had happened." Sometime later, just before the end of the class period, Respondent noticed that one of the males had dropped his cell phone on the floor by his desk. Respondent walked over, bent down and picked up the phone, and put it in his pocket. Apparently, the student was not aware that Respondent had picked up his phone. Respondent admitted that he had taken the cell phone for the purpose of teaching the student a lesson and that he intended to hold on to it until dismissal. As he put it, "it would be nice to watch G.P. [the student who owned the phone] squirm for a little bit." When the dismissal bell rang, the student started looking frantically for his cell phone. At that point, J.G. went over to G.P. and told him that Respondent had his phone. This made Respondent angry. He stated that he felt that J.G. "had sabotaged his plans." Respondent raised his voice and began yelling at J.G. claiming that he had "sold him out" and why could he do such "an idiotic thing." There was conflicting evidence concerning whether or not any profanity was used by Respondent.2/ Respondent then followed J.G. outside the classroom and continued to berate him. Respondent used some other choice words against J.G. including calling him "stupid" and "idiotic." Respondent admitted that the May 4, 2015, incident was not the first time he used profanity in the classroom and that it was not the first time he ever become angry, or made any harsh comments to a student. J.G. testified by way of deposition taken on February 1, 2016. He claimed that when the water bottle incident occurred, Respondent was yelling in general.3/ J.G. testified that the conduct of Respondent shocked him and made him nervous because he had never seen a teacher react like that to anything. When J.G. told the other student that Respondent had his phone, Respondent started screaming at him and had a "melt down," as he described it. J.G.'s recollection of the event was fairly detailed and consistent. He said that Respondent called him "stupid," "retarded," and an "idiot." He cursed at J.G. using the F_ _ _ word, the S_ _ _ word, and accused J.G. of being a "F_ _ _ing idiot." When Respondent cursed at him, it made J.G. feel very shocked and embarrassed, particularly in front of the other students. He acknowledged, however, that this was the first time that Respondent ever got in his face and yelled or cursed at him. Notably, J.G. admitted that since the May 4, 2015, incident his academic career has been the same and that he is actually doing better this year, than last year. Also, after the incident on May 4, 2015, J.G. testified that much of the harassment decreased. Apparently, one of the male students involved in the incident received an in-school suspension for the name-calling incident and stayed away from J.G. The other student, as well, was not making fun of him like he had done previously. Several students, including the two male students involved, testified by way of their deposition transcripts. Each recalled the incident on May 4, 2015. The students each had a similar recollection of the basic events. They confirmed that Respondent got very upset, was screaming, and used some curse words and demeaning language. Several of the students acknowledged, in general, that the incident resulted in the classroom antics and horseplay subsiding. Each provided a written statement which was reviewed by the undersigned. Following the incident on May 4, 2015, Respondent was removed from the classroom, but was allowed to return to school on May 11, 2015, to begin teaching again. He taught until the end of that school year-–until approximately June 6, 2015. During the summer of 2015, Respondent received a letter from the principal reappointing him to his teaching position at Eagles Landing Middle School for the 2015-2016 school year. Approximately 11 days after the new school year began, Respondent was requested to attend a pre-disciplinary hearing relating to the May 4, 2015, incident. After the pre- disciplinary meeting, he was allowed to return to his classroom until October 9, 2015. In early October 2015, Respondent was directed to attend several Employee Assistance Program meetings. He attended four different sessions through November 4, 2015, when he was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board discipline Respondent with an unpaid suspension covering the period of time Respondent has been suspended from his teaching duties, but immediately reinstate him to his teaching duties. No back pay is recommended. The undersigned also recommends that Respondent be required to attend and successfully complete an anger management class after reinstatement. DONE AND ENTERED this 13th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 13th day of April, 2016.
The Issue The issue for determination is whether Respondent should be suspended without pay and terminated from employment with Petitioner for falsification of documentation and insubordination.
Findings Of Fact Mr. Chappelle has been employed with the School Board since around August 2002. His supervisor was John Dierdorff. At the time of the hearing, Mr. Chappelle had been a communications technician with the School Board for approximately five years.1 No dispute exists that, at all times material hereto, Mr. Chappelle was a non-instructional employee with the School Board. Additionally, his supervisor for the entire time of his employment in communications with the School Board was Mr. Dierdorff. Approximately one year after beginning his employment with the School Board, Mr. Chappelle was having attendance problems, i.e., absenteeism. Mr. Dierdorff attempted to assist Mr. Chappelle improve his attendance, but to no avail. At a point in time, Mr. Chappelle had exhausted all of his sick leave and had no available sick days. When Mr. Chappelle was absent due to illness, he was required to submit a doctor’s excuse. On December 17, 2007, Mr. Chappelle received a written reprimand for falsification of documentation from the School Board’s Director of the Department of Employee Relations. He had submitted to Mr. Dierdorff a “fraudulent or false doctor’s note that was purported to be from [his doctor].” Among other things, Mr. Chappelle was “directed to cease such conduct immediately” and “to desist from engaging in the same or similar conduct in the future” and was informed that his failure to do so would result in “further disciplinary action up to and including termination.” Mr. Chappelle acknowledged receipt of the written reprimand by signing it on December 17, 2007. The evidence demonstrates that the Director of the Department of Employee Relations had the authority to give Mr. Chappelle the directive. The evidence further demonstrates that the directive was reasonable in nature. Regarding the written reprimand, at hearing, Mr. Chappelle admitted that he had falsified the doctor’s note, submitted it to Mr. Dierdorff, and had received the written reprimand as disciplinary action. Moreover, Mr. Chappelle admitted that he had self-reported the wrongful conduct to the School Board; the School Board had no knowledge that he had falsified the doctor’s note. Mr. Chappelle further admitted that he engaged in the wrongful conduct because, at the time, he was suffering from health issues and having money problems, including no money to pay for a doctor’s services, and his wife was having mental health issues. Several months later, on or about September 29, 2008, Mr. Chappelle submitted a doctor’s note to Mr. Dierdorff. Among other things, the note indicated that Mr. Chappelle was medically cleared for work starting September 29, 2008; and that he was not to work from September 17, 2008, through September 29, 2008. Mr. Dierdorff believed that the doctor’s note had been altered or falsified because the note had whiteout on it and the date of the note appeared to be “9/24/98,” not “9/24/08.” As a result, he referred the matter to the Department of Employee Relations for possible investigation. Subsequently, Mr. Chappelle became the subject of an investigation by Employee Relations. The investigation was based upon the allegation that he had falsified the doctor’s note and had acted in an insubordinate manner by engaging in the same or similar conduct for which he had been previously disciplined. The doctor’s note that was contained in the medical file at the physician’s office was not the same as the doctor’s note submitted to Mr. Dierdorff. Instead of indicating that Mr. Chappelle was medically cleared for work on September 29, 2008, the doctor’s note in the medical file indicated September 25, 2008. Further, instead of indicating a period of time in which Mr. Chappelle was not to work, the doctor’s note in the medical file was blank and, therefore, did not indicate a period of time. However, the doctor’s note in the medical file did indicate that the date of the doctor’s note was “9/24/08,” the same as the doctor’s note submitted to Mr. Dierdorff. The evidence demonstrates that the doctor’s note submitted to Mr. Dierdorff on or about September 29, 2008, was altered and falsified. Mr. Chappelle denies that it was he who altered and falsified the doctor’s note. Mr. Dierdorff denies that he altered or falsified the doctor’s note. Mr. Chappelle does not deny that it was he who submitted the doctor’s note to Mr. Dierdorff. The evidence demonstrates that Mr. Chappelle altered and falsified the doctor’s note that he submitted to Mr. Dierdorff on September 29, 2008.2 Mr. Chappelle’s conduct on September 29, 2008, was the same as or similar to his previous conduct for which he was disciplined on December 17, 2007, by a written reprimand. Among other things, Mr. Chappelle was notified in the written reprimand that the same or similar conduct would result in further disciplinary action up to and including termination. The evidence demonstrates that Mr. Chappelle intentionally committed the same or similar conduct and intentionally failed to abide by the directive to no longer engage in such action. By letter dated April 24, 2009, the Superintendent, Arthur C. Johnson, Ph.D., advised Mr. Chappelle, among other things, that sufficient just cause existed to impose disciplinary action pursuant to Sections 1012.22(1)(f) and 1012.27(5), Florida Statutes; School Board Policies 1.013 and 3.27; and Article 17, Section 6 of the Collective Bargaining Agreement between the Service Employees International Union, Florida Public Services Union, and the School Board. Further, Superintendent Johnson advised Mr. Chappelle that he (Superintendent Johnson) was recommending to the School Board, as discipline, suspension without pay and termination from employment. Mr. Chappelle acknowledged that he received the letter by signing and dating it on April 25, 2009. Superintendent Johnson’s recommendation was submitted to the School Board. The School Board agreed with the recommendation. Mr. Chappelle timely requested an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Augustus Chappelle for 15 days and re- instating him at the expiration of the suspension. DONE AND ENTERED this 10th day of May 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2010.
The Issue Whether Respondent committed the violations alleged in the Petition for Suspension Without Pay and Dismissal from Employment, as clarified at hearing, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida (including, among others, H. L. Watkins Middle School (HLWMS)), and for otherwise providing public instruction to school-aged children in the county. The School Board has entered into a collective bargaining agreement with the collective bargaining representative of its instructional staff. Pursuant to Article II, Section M., of that agreement, the School Board "has the burden to prove each and every charge by clear and convincing evidence" in disciplinary proceedings such as the instant one.2 At all times material to the instant case, Respondent was employed as an annual contract teacher by the School Board. The last day for which she was paid by the School Board was March 3, 2010. From March 4, 2010, until June 4, 2010, Respondent was under suspension (without pay) pending the outcome of these disciplinary proceedings. By letter dated March 22, 2010, Respondent was advised by the School Board's Chief of Human Resources that she would not be "reappointed" and that, as a result, her employment with the School Board would terminate "on the last day of [her] current contractual period" (which was June 4, 2010). During the 2007-2008 and 2008-2009 school years, Respondent taught Spanish at HLWMS (to seventh and eight graders during the 2007-2008 school year; and to sixth, seventh, and eighth graders during the 2008-2009 school year). Respondent was responsible, not only for the delivery of instruction to her students, but also for the management of her classroom. Furthermore, she was expected to be a "role model" for her students and to conduct herself accordingly, particularly when on campus. At all times that Respondent was teaching at HLWMS, Ann Wark was the principal of the school, and Respondent's department head was Ann Panse. In each of the two annual evaluations Ms. Wark gave her, Respondent received an "overall" rating of "satisfactory" and was rated "acceptable" in each of the 15 performance categories listed on the evaluation form. In the "comments" section of the 2007-2008 school year evaluation, Ms. Wark wrote: Beth has been such a positive addition to the Watkins Team. She does a great job working with her students. She is also a wonderful team player, assisting others whenever needed. The "comments" section of the 2008-2009 school year evaluation (which Ms. Wark signed on May 13, 2009) contained the following remarks made by Ms. Wark: Ms. Stuglik is a very creative teacher. She always has detailed lesson plans that are effectively presented in the classroom. Respondent was a 22-year-old beginning teacher when she arrived at HLWMS in August 2007. She and her husband had just moved from Indiana, away from the family3 and friends who comprised her "support system." Aside from her husband (who was not supportive of her decision to teach at HLWMS),4 Respondent was not close with anyone at the school or in the area. Respondent's classroom her first year at HLWMS was the "chorus room," which was located in a building (Auxiliary Building) that was separate from the main school building. There were only two other teachers with classrooms in the Auxiliary Building (which also housed the school's cafeteria): an ESE teacher and a band teacher. The ESE teacher was infrequently in her room, having one class there every other day. The remainder of her teaching time was spent servicing the school's exceptional education students in their general education settings. The band teacher was Heath Miller. Mr. Miller taught his students in the "band room." Mr. Miller's classroom (the "band room") and Respondent's classroom (the "chorus room") were connected by an unoccupied office. Mr. Miller was a popular and "well respected" member of school's instructional staff, as evidenced by the multiple "teacher of the year" awards he had received. Before classes started that school year (the 2007-2008 school year), during orientation, Respondent was told by other teachers that Mr. Miller "was the go-to guy; that if [Respondent] ever needed help with students, [Mr. Miller] was the guy to see; that he was just absolutely wonderful." Acting on this advice, Respondent sought out Mr. Miller's assistance on various occasions, and he became her trusted, informal teaching mentor (albeit one without any supervisory authority over her). Over a period of approximately a month, Respondent's relationship with Mr. Miller, which began as a purely professional one, evolved into a sexual relationship, against Respondent's will. From the end of September 2007, until sometime in November that year before the Thanksgiving break, Mr. Miller and an unwilling Respondent engaged in sexual intercourse a handful of times in a large storage closet in the "chorus room." These incidents (numbering approximately three or four altogether) occurred during the morning (sometime between 8:45 a.m. and 9:30 a.m.) before classes started.5 On each occasion, over Respondent's verbal protestations, Mr. Miller, who was "very muscular" and physically stronger than Respondent, forcefully maneuvered Respondent to the desired location in the closet, undid her clothes, and then directed her what to do. At no time did Mr. Miller strike Respondent, nor did he make any express verbal threats of harm to Respondent if she resisted his advances. Respondent, however, did not know what Mr. Miller would do to her if she did resist. She therefore complied with Mr. Miller's demands. Respondent did not tell anyone about these nonconsensual sexual encounters with Mr. Miller until approximately a year and half later, on April 27, 2009, when she was interviewed a second time during the "School Police investigation" described in the Petition. Respondent's post-encounter silence was the product of her wanting to forget about what had happened, coupled with her conviction that, if she did report what had happened, no one would believe her because Mr. Miller was so "well respected." Notwithstanding what Mr. Miller had done to her, Respondent continued to be "cordial" towards him, acting as if, at least to the casual, lay observer, nothing untoward had happened. In addition to conversing in person with Mr. Miller during the course of the school day, Respondent communicated with him by text and telephone, and several times even socialized with him outside of school (but always in a group situation where there were others present). Respondent's conduct following Mr. Miller's transgressions against her (as described above) was not atypical for a sexual assault victim.6 During the 2007-2008 school year and, to a lesser extent, during the 2008-2009 school year (when Respondent occupied the classroom in the Auxiliary Building that the ESE teacher had been in the year before7), an unaccompanied Mr. Miller, on occasion, came into Respondent's classroom while she was teaching a class (towards the end of the period,8 when the students were working, independently, on class assignments) and, with Respondent's permission, removed students from her class, a practice not prohibited by any School Board rule or policy. The students he removed were all female band students. Respondent would let the students go with Mr. Miller only if they were done with their work.9 The students would be gone from Respondent's class for approximately ten to twenty minutes. Allegations were subsequently made that Mr. Miller had (at various unspecified times) engaged in sexual misconduct with three of the students he had removed from Respondent's class (plus another student whom Respondent did not teach), and criminal charges were filed against Mr. Miller based on these allegations.10 Mr. Miller is currently in jail and is being held without bond on these criminal charges. At the time of the removals, however, Respondent had no knowledge, nor even any idea, that Mr. Miller was engaging in any inappropriate conduct with students. She believed (based on what Mr. Miller had told her when he came into her room to get the students) that he was taking them from her class so they could participate in band-related activities.11 Mr. Miller was arrested on April 20, 2009.12 The following day, School Police Detective Vincent Mintus interviewed Respondent as part of his ongoing investigation of the allegations that had been made against Mr. Miller. During this April 21, 2009, interview, Respondent was not forthright with Detective Mintus. She was asked about her relationship with Mr. Miller and, in response, failed to disclose that there was a sexual component to the relationship. Following the interview, Detective Mintus discovered information causing him to question whether Respondent had been entirely truthful with him. He therefore made arrangements to interview Respondent again. This second interview was conducted on April 27, 2009. When told by Detective Mintus that he had reviewed text messages and telephone records and, based upon this review, had doubts concerning how honest she had been during her April 21, 2009, interview,13 Respondent acknowledged that, contrary to what she had intimated in her previous interview, she had had a sexual relationship with Mr. Miller. She added, however, that this relationship had been a nonconsensual one in which she had not been a willing participant. The interview was cut short when Respondent asked for a union representative to be present. Following her April 27, 2009, interview, Respondent, with Detective Mintus' assistance, made contact with the Palm Beach County's Victim Advocate's Office, through which she subsequently received therapy and counseling enabling her to better deal with the emotional and psychological effects of having been sexually victimized by Mr. Miller. Upon being advised by Detective Mintus of what Respondent had related to him during the April 27, 2009, interview, Ms. Wark went to see Respondent. She tried to console Respondent and offered Respondent her support. Aided by newspaper articles on the subject, word quickly spread through the school and the community about Detective Mintus' investigation of Mr. Miller's on-campus sexual activity with HLWMS students and teachers. As a result, "things at the school came to a standstill." Students openly discussed Respondent's having been sexually involved with Mr. Miller and expressed their anger with Respondent for her having engaged in such activity.14 Ms. Wark sensed that Respondent had lost the respect of the student population as a whole, and their parents. Because it was towards the end of the school year, Ms. Wark took no action to have Respondent removed from her classroom assignment while Detective Mintus' investigation was still ongoing; however, she did instruct Respondent not to attend any school functions (including graduation) to which parents were invited. It was not until the beginning of the following school year (the 2009-2010 school year) that Respondent was taken out of the classroom and assigned administrative duties.15 Respondent had left the April 27, 2009, interview with the understanding that Detective Mintus would contact her to make arrangements for a follow-up interview. Detective Mintus, though, expected Respondent to contact him. After not hearing from Respondent for a couple of months, he sent Respondent a letter, dated July 1, 2009, asking her to get in touch with him so that he could set up another interview. Respondent did not receive Detective Mintus' letter until July 20, 2009.16 She immediately contacted her attorney and read the letter to her. Respondent's attorney then contacted Detective Mintus. Respondent was interviewed a third time by Detective Mintus on July 29, 2009. She was accompanied to the interview by her attorney. Immediately before the interview began, Respondent's attorney told Detective Mintus, on Respondent's behalf, that Respondent did not want to press charges against Mr. Miller because she desired "to get on with her life and not have any notoriety." During the interview, Respondent gave details regarding her relationship with Mr. Miller. She acknowledged that she had engaged in sexual activity with Mr. Miller on the HLWMS campus, but continued to maintain (truthfully) that she had not willfully participated in this activity. After completing his investigation, Mr. Mintus issued an Investigative Report, in which he found, among other things, that Respondent and Mr. Miller had had "mutually agreed upon sexual intercourse together on multiple occasions" on the HLWMS campus. On August 14, 2009, Detective Mintus' Investigative Report was forwarded to the School Board's Department of Employee Relations. The matter ultimately was brought to the attention of the School Superintendent, who, on February 12, 2010, advised Respondent that a determination had been made that there was "sufficient evidence to warrant [her] termination from [her] position as Teacher" and that he therefore would "recommend her suspension without pay and termination at the March 3, 2010 School Board Special Meeting." The School Board followed the School Superintendent's recommendation, and it suspended Respondent without pay effective March 4, 2010, pending the outcome of termination proceedings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board issue a final order finding that the charges against Respondent have not been sustained and awarding Respondent "back salary" for the period she was under suspension without pay. DONE AND ENTERED this 2nd day of August, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2010.
The Issue The primary issue in this case is whether, as the district school board alleges, a teacher used inappropriate force against one or more students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to impose a ten-day suspension without pay on the teacher as punishment.
Findings Of Fact The Palm Beach County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all times relevant to this case, Respondent Zedrick Barber ("Barber") was employed as a history teacher at Howell L. Watkins Middle School in Palm Beach Gardens, a position which he had held for the preceding eight years. This case arises from two separate incidents, which occurred in the spring of 2014. In both situations, the School Board alleges, Barber used inappropriate force against a student. Barber acknowledges that he made physical contact with a student on each occasion but claims that he did so——reasonably under the circumstances——to prevent harm to the student, other students, and himself. As Barber is the only person having personal knowledge of the events in question who testified at hearing, the evidence supports his accounts. The findings below are based on Barber's testimony and statements concerning the incidents. The earlier episode occurred on February 5, 2014. On that day, a girl in Barber's class named D.G. became angry at the boy sitting behind her because he kept placing his feet on the back of her chair. Attempting to discourage him from continuing to annoy her in this manner, D.G. began punching the boy's legs. He refused to budge, however, which merely increased D.G.'s frustration. She grew increasingly loud and disruptive, causing Barber to intervene. He instructed D.G. to stop hitting the boy, and she calmed down. Before long, though, D.G. resumed punching the boy. Barber directed D.G. to place a chair just outside the classroom door and sit there, where Barber could keep an eye on her. This upset D.G., who shoved a book in Barber's direction, which fell from her desk to the floor. D.G. then rose from her seat. Instead of obeying Barber's instruction to relocate, D.G. turned her back on the teacher and started pushing her desk toward the boy who had aggravated her. At this point, Barber stepped in to prevent D.G. from overturning the desk and hurting the boy. He reached out and grabbed D.G.'s belt loop, pulling her towards himself. D.G. broke free and ran out of the room. She was later returned to Barber's classroom and finished the day without further incident. Under the circumstances, Barber's de minimis contact with D.G.'s person constituted a reasonable effort to protect D.G. and others from personal injury or conditions harmful to learning. The second incident took place on March 31, 2014. J.T. entered Barber's classroom that day brandishing a blister pack of pills and bragging that he had drugs. Barber told J.T. to sit down, for the students would be taking a quiz. During the quiz, J.T. became disruptive, jumping up and exclaiming that he needed to leave, to take his pills. Barber, who had not received any notice that J.T. had a legitimate reason to take medication while in school, reasonably refused to let J.T. out of class to ingest pills, the nature of which Barber was unaware. Barber instructed J.T. to take a seat and finish his assignment. J.T., however, continued to misbehave, demanding to take the pills. Barber made a gesture which signaled that he would push the classroom "panic button" to call for assistance if J.T. persisted in making trouble. This did not deter J.T., who stood up defiantly. Barber feared he might bolt for the door and moved to block J.T.'s exit. As Barber walked toward the door, J.T. charged the teacher. J.T. stumbled as he drew near to Barber, striking him in the chest with both fists as he fell forward. Barber held J.T.'s arms, pinning them against the student's sides, while asking J.T. to calm down. J.T. screamed, "Let me go!" J.T. struggled to escape and began kicking Barber repeatedly. While restraining J.T. in an embrace-like hold to prevent the student from assaulting him or others, Barber pressed the panic button to summon assistance. A security guard soon arrived and Barber let go of J.T. The student made a sudden movement as if to hit Barber, but the guard quickly took hold of J.T. and removed him from the classroom. Under the circumstances, Barber's physical contact with J.T., which was defensive in nature, constituted a reasonable effort to protect J.T. and others (including Barber himself) from personal injury or conditions harmful to learning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Barber of all charges brought against him in this proceeding. DONE AND ENTERED this 31st day of August, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2015. COPIES FURNISHED: Jean Marie Middleton, Esquire School District of Palm Beach County Office of General Counsel 3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239 West Palm Beach, Florida 33416-9239 (eServed) Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 (eServed) Dr. Robert Avossa, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, C-316 West Palm Beach, Florida 33406-5869 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
