The Issue The issue is whether Respondent's conduct constitutes just cause for her dismissal from employment with Petitioner.
Findings Of Fact Petitioner ("Petitioner" or "School Board") is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Rosalinda Morales (Respondent) has been employed by the School Board for nine years and, concerning the matters at issue in this hearing, was a classroom teacher at Inwood Elementary School in Winter Haven, Florida. She was employed pursuant to terms of a collective bargaining agreement. Inwood Principal Amy Heiser-Meyers (the "Principal") issued a letter of concern to Respondent on September 28, 2011, in which she reminded Respondent of the importance of timely confirming her students' attendance each day. The Principal provided written confirmation of a verbal warning to Respondent by letter dated June 7, 2012, concerning Respondent's failure to advise the school she would be absent from work. The Principal provided written confirmation by letter dated November 27, 2012, of a second verbal warning for Respondent's failure to advise the school that she would not be present and for arriving late at work on another occasion. The Principal issued a written reprimand, following a conference with Respondent, by letter dated February 13, 2013. The written reprimand was the result of Respondent having failed to follow specific instructions and not properly handling student documentation. The Principal issued Respondent a second written reprimand by letter dated February 15, 2013, following a conference resulting from Respondent having submitted attendance records indicating that a student was present in class when, in fact, the student was absent. By letter dated February 28, 2013, the Principal requested that Superintendent John Stewart suspend Respondent without pay for several incidences of ongoing misconduct. These included Respondent's use of inappropriate and disparaging student behavior techniques; Respondent being unaware that two kindergarten students had walked out of her class without permission; and Respondent's repeated use of obscenities and disparaging comments regarding staff members while present at the school. Dennis F. Dunn, the Assistant Superintendent for Human Resources, issued a letter dated March 4, 2013, giving Respondent a three-day suspension without pay as a result of this ongoing misconduct. On July 10, 2013, the Principal wrote Superintendent Kathryn LeRoy again requesting a suspension without pay for Respondent as the result of Respondent's continued, ongoing misconduct in a number of incidences set forth in that letter involving failure to follow established school protocol, absence from work, and her lack of knowledge of the whereabouts of young students. Based upon that letter, the assistant superintendent for human resources issued a letter, dated July 18, 2013, suspending Respondent without pay for five days. Respondent never filed a grievance or any formal complaint contesting the above-described disciplinary actions taken as the result of her behavior. On May 8, 2013, Respondent was teaching her kindergarten class. She had 18 students in her classroom. She was being assisted in her classroom that day by Ms. Ellistine Smith, a retired principal. Near dismissal time, at approximately 2:30 p.m., D., a student in the classroom, became disruptive. D. had behavior problems throughout the school year. D. refused to stay in his assigned area and constantly disrupted lessons. D. is known as a "runner," meaning he would run away from teachers or the campus in general. Respondent regularly had to chase D. to try to catch him. She would never be able to catch him because whenever she got close, he would again run away. On that day, D. decided not to participate in class. He removed his shoes and threw them at other students, at the ground, and at Respondent. He took off his shirt and threw it at students. Respondent directed D. to go to time out, but he refused. Respondent asked Ms. Smith to keep an eye on the class while she removed D. from the classroom. Respondent looked outside the classroom for the paraeducator who normally sits in the hallway, but she was not present at that time. Respondent decided to take D. to the fifth grade building to have him stay with another paraeducator. D. voluntarily walked with Respondent down the hallway to the fifth grade building. She was holding him by the wrist. When they arrived at the fifth grade building, D. resisted going further and tried to pull away from Respondent. She maintained a stronger grip on his wrist to prevent him from running away. Respondent then opened the door to the fifth grade building, did not see anyone, but heard the copy machine running in the copy room. Respondent began to lead D. into the ESOL (English for Speakers of Other Languages) room outside the copy room, but he let his body go limp. Respondent lifted him to carry him into the building and towards the copy room, but could not go very far due to her petite stature. She dragged him a short distance to the copy room where Venise Stinfil, a third grade teacher was working. Respondent left D. with Ms. Stinfil, stating that "[she] can't handle or deal with this at this time, because I'm being observed." Respondent dropped the student's arm and returned to her classroom. Ms. Stinfil noticed scuff marks on D.'s shirt and that the shirt was very dirty and the student distraught. Fifth grade teacher Erin Rodgers was also present at the time Respondent brought D. to Ms. Stinfil's room. She saw Respondent holding D. by his arm and dragging him a short distance into Ms. Stinfil's room. Respondent did not intend to injure D., and he did not appear to have any physical injuries as a result of being brought to Ms. Stinfil's room. Ms. Stinfil testified that her training would have led her to handle the situation with D. differently. When he went limp and laid on the floor, she would have talked with him to try and get him to stand up to move on to their destination rather than taking him by the wrist and pulling/dragging him along. If the student refused to get up, she would have called someone from administration, who was trained in handling such situations, to help talk the student into compliance or appropriately help him up and move to their destination. She had been trained to never put her hands on students. Respondent acknowledged that the procedures she used in taking D. from her classroom might not have been the preferred method in which other teachers had been trained, but it was a choice of handling such matters she had used before. Respondent received a letter from Mr. Dunn dated July 29, 2013, advising her that Superintendent LeRoy would recommend her termination from employment at the next meeting of the School Board on August 13, 2013. When Respondent requested a hearing concerning the termination, she was suspended without pay pending the outcome of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as a teacher. DONE AND ENTERED this 17th day of January, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2014. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell and Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19, North Clearwater, Florida 33761 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-4000 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-4000 Kathryn LeRoy, Superintendent Polk County School District Post Office Box 391 Bartow, Florida 33831
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.
The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner to suspend Respondent's employment as a teacher without pay for one day.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools in Broward County. The School Board hired Respondent on September 1, 1981. At all times material hereto, Respondent has been employed by the School Board as a middle school social science teacher and department head at Whiddon-Rogers Education Center ("Whiddon-Rogers"). At all times material to this case, Respondent's employment with the School Board has been governed by Florida law and the School Board's policies. The conduct giving rise to the School Board's proposed one-day suspension of Respondent occurred on October 1, 2019, during the 2019-2020 school year. On the morning of October 1, 2019, M.G., an eighth grade male student at Whiddon-Rogers, received a telephone call regarding some family members who had died that morning. Due to the deaths in his family, M.G. was upset and in a "bad mood" throughout the morning and later that day when he arrived in Respondent's fourth period social studies class. During Respondent's fourth period class, M.G. did not want to be disturbed. He had a "hoodie over his head," his head down on his desk, and he was not doing any work. M.G. was often picked on in class by other students. On this particular occasion in Respondent's fourth period class, M.G. was being picked on by other students as he laid his head down on his desk. At some point, M.G. picked his head up from his desk and made a verbal threat to other students that he was going to shoot up the school. Respondent did not hear M.G. make the threat. One of the other students that heard M.G.'s threat went to Respondent during class and told him M.G. had threatened to shoot up the school. Respondent did not report M.G.'s threat to school administration. Respondent did not consider M.G.'s comment to be a dangerous threat. Respondent did not want to embarrass M.G. and told him during his fourth period class on October 1, 2019, that he could not say things like that. M.G., who was angry, did not respond to Respondent and walked out of the classroom. Respondent instructed M.G. to return to the classroom, but M.G. ignored him. On October 2, 2019, M.G. did not attend school. On the morning of October 3, 2019, Assistant Principal Sabrina Smith received a text message from another teacher at Whiddon-Rodgers, N'Kenge Rawls, notifying her of M.G.'s threat on October 1, 2019, to shoot up the school. Ms. Smith notified the other assistant principals of the threat and assembled the mandatory members of the Behavioral Threat Assessment ("BTA") team to collaboratively analyze available data, determine the level of risk, and develop appropriate interventions. As part of the threat assessment, Ms. Smith spoke to M.G. on October 3, 2019, who admitted he had threatened to shoot up the school. Ms. Smith also spoke to Respondent, who admitted he did not report M.G.'s threat to administration on October 1, 2019. Respondent admitted to Ms. Smith that he should have reported M.G.'s threat and that he made a mistake in not reporting the threat. Based on the behavioral threat assessment, the BTA team determined M.G.'s risk level to be "Medium/Serious Substantive." A "Medium/Serious Substantive" risk level means that the student "does not appear to pose a threat of violence at this time but exhibits behaviors that indicate a continuing intent to harm and/or potential for future violence." By all accounts, Respondent is a good teacher and well respected by his colleagues as evidenced by his team leader role at Whiddon-Rodgers. However, on this particular occasion, Respondent used poor judgment and erred in not reporting M.G.'s threat to shoot up the school on October 1, 2019. The persuasive and credible evidence adduced at hearing establishes that Respondent failed to report M.G.'s threat to shoot up the school, which constitutes misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. By failing to report M.G.'s threat to shoot up the school, Respondent violated rule 6A-10.081(2)(a)1., by failing to make reasonable effort to protect the students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety. Respondent's conduct also constitutes "[i]ncompetency" and "[i]nefficiency," in violation of rule 6A-5.056(3) and (3)(a)1., by failing to discharge the duty to report such a threat as prescribed by law and "[i]nefficiency" in violation of rule 6A- 5.056(3)(a)3., by failing to communicate appropriately with and relate to administrators. Respondent's conduct also violates School Board Policy 2130, which requires School Board employees "to report to school administration any expressed threat(s) or behavior(s) that may represent a threat to the community, school, or staff," and School Board Policy 4008, which requires Respondent to comply with the "Principles of Professional Conduct of the Education Profession in Florida," and "all rules and regulations that may be prescribed by the State Board and by the School Board." Respondent has only received prior discipline on one occasion. On September 19, 2007, Respondent received a written reprimand for inappropriate discipline of a student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order upholding the one-day suspension of Respondent's employment without pay. DONE AND ENTERED this 10th day of November, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 10th day of November, 2020. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. 201 East Pine Street, Suite 445 Orlando, Florida 32801 (eServed) Robert W. Runcie, Superintendent Broward County Public Schools 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact For approximately seven years, William Mitchell (Respondent) was employed as a custodian with the Monroe County School Board (Petitioner). Until 1997, Respondent worked at night at Horace Bryant Middle School, coming to work around 2:00 p.m. Respondent had very little contact with students during the school day at Horace Bryant Middle School. In or about 1997, Respondent voluntarily transferred to Key West High School and worked during the school day where he had contact with students on a regular basis. As a custodian, Respondent had no responsibility for student discipline at either school. At the time of the hearing Respondent was 53 years of age. He was described by his supervisor at Key West High School as a good employee. Respondent was considered hardworking and gentlemanly. Respondent was not known to be a violent man and had not exhibited any violent or aggressive behavior. Respondent's duties, as custodian at Key West High School, included replenishing the soda can machine and removing the money from the machine in the mornings. In the early part of March 1998, while Respondent was replenishing the machine with sodas, a student, Jerome Simmons,1 took one of the sodas from the machine. Respondent approached Simmons and questioned him regarding the soda, but Simmons denied taking the soda. Respondent believed that Simmons was not telling the truth. The soda was not in Simmons' possession and could not be found. Respondent was aware that it was appropriate for him to report misconduct by a student to the assistant principal or the school resource officer. Respondent reported the incident to the assistant principal, Robert Fletcher. Mr. Fletcher questioned Simmons who again denied taking the soda. Mr. Fletcher determined that nothing could be done because Simmons denied taking the soda and the soda was not in Simmons' possession. Simmons was an eighteen-year-old senior at Key West High School. He was stocky, well built, and muscular, having the appearance of someone who lifts weights. Simmons' tenure at Key West High School had not been without incident. He had been disruptive and been disciplined, which included suspension. John Welsh, an assistant principal, whose responsibilities included discipline of students, was very familiar with Simmons. Mr. Welsh observed, among other things, that Simmons was the kind of person who was likely to get the last word in an argument. A few weeks after the soda incident, on March 23, 1998, Simmons was returning from a meeting with his probation officer at the administrative office of Key West High School when he encountered Respondent who was going to the administrative office to obtain the key for the soda can machine. They were passing one another in a narrow hallway, and Simmons deliberately bumped Respondent; Simmons had sufficient room on his side of the hall to pass Respondent without bumping him. Respondent reacted to the deliberate bump by telling Simmons to look where he was going. Simmons mumbled something unintelligible to Respondent, who continued walking to the administrative office and obtained the key for the soda machine. Even though the assistant principal was located in the administrative office, Respondent did not report the incident. Based upon the last encounter with Simmons, Respondent believed that he needed more than an intentional bump and something mumbled unintelligible by Simmons to demonstrate misconduct by Simmons. After obtaining the key for the soda machine, Respondent proceeded to the soda machine to replenish it with sodas. While Respondent was filling the soda machine, Simmons approached Respondent from the side, staying approximately ten to fifteen feet away from Respondent, and again mumbled something unintelligible. Respondent did not want to stop his work and stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Even though Respondent used the term play, Respondent did not believe that Simmons was playing. Respondent did not report this second encounter to the assistant principal or the school resource officer. Respondent again believed that he needed more than what had happened based upon the previous soda incident involving Simmons that he (Respondent) had reported. Simmons walked away from Respondent toward the gym and again mumbled something unintelligible. However, Simmons did clearly say to Respondent, "come on." Respondent followed Simmons in hopes of being able to decipher what Simmons was mumbling in order to report Simmons if Simmons was saying anything inappropriate, as Respondent believed. It was not inappropriate for Respondent to follow Simmons. When Simmons entered the gym, he approached a physical education teacher, Nancy Thiel, and informed her that a janitor wanted to fight him. Very shortly thereafter, Ms. Thiel saw Respondent at the doorway to the gym. Simmons knew that Ms. Thiel was conducting class in the gym because, approximately twenty minutes earlier, she had directed Simmons to leave the gym since he was not in her class. A finding of fact is made that Simmons' remark that a janitor wanted to fight him is untrustworthy and not made under the stress of excitement. Simmons was calm, not appearing excited, and was relaxed when he made the remark. A finding of fact is further made that Simmons made the remark to shield himself from any wrongdoing and to make it appear that Respondent was the aggressor. Ms. Thiel was standing next to Simmons when Respondent came to the doorway to the gym. Respondent appeared calm and relaxed, not angry. Respondent again stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Simmons removed his shirt and remarked to Respondent, "You want some of this," and proceeded out of the gym to the walkway where Respondent was standing. Respondent knew when Simmons removed his shirt that he (Simmons) was serious and wanted to fight. Respondent remarked, "Let's go."2 When Respondent realized that Simmons was serious and wanted to fight, Respondent was presented with an opportunity, although of short duration, to remove himself from the confrontation. Respondent failed to leave the immediate area of the confrontation and report the incident to an assistant principal or to a school resource officer. Respondent and Simmons confronted one another. They glared at one another and, almost simultaneously, lunged at one another.3 Simmons grabbed Respondent at the bottom of both Respondent's legs; Respondent lowered his weight so as not to allow Simmons to pick him up and throw him to the ground on the concrete. They wrestled and both of them fell to the ground on the dirt and sand area, avoiding the concrete area, with Simmons landing on top of Respondent and being in control. The struggle was over very quickly. No punches were thrown by either Simmons or Respondent. No criminal charges were filed by either Simmons or Respondent against one another. Petitioner has a policy prohibiting fighting at the workplace. Petitioner's policy does not prevent an employee from acting in self-defense. Moreover, if an employee is defending himself or herself and fighting ensues, the employee would not be terminated for fighting. An employee is considered to have acted in self-defense if a student lunged at the employee and the employee held the student and, while holding the student, both the employee and the student wrestle to the ground. Respondent was not acting in self-defense. When Simmons removed his shirt and remarked whether Respondent wanted some of him, Respondent had an opportunity to remove himself from the confrontation and report the situation to an assistant principal or school resource officer. Instead, Respondent chose to continue with the confrontation which led to physical contact between Simmons and Respondent. According to the principal of Key West High School at the time of the incident, teachers receive training related to student behavior/relations as part of their professional training; and educators must adhere to the Florida Code of Ethics, which, among other things, governs their interaction with students. However, no such training and no information is disseminated to support personnel, such as Respondent, regarding standards of behavior between employees and students. Even though custodians are not licensed or trained educators, custodians, according to the principal, are held to the same level of behavior as educators. Furthermore, according to Petitioner's Director of Support Services, Robert Menendez, all school employees, including custodians, are held to a higher standard. Mr. Menendez also indicated that there is an implied code, which is a common sense approach, that employees do not confront students on school campus and create problems. This higher standard and implied code were not communicated to the custodians, including Respondent, and the custodians did not receive training regarding handling conflicts with students or aggressive students. If an employee is being held to a standard, the employee should be informed of the standard and, if required, receive appropriate training regarding the standard. Where there is an absence of communication or information or an absence of appropriate training regarding the standard, the employee cannot be held to the standard since the employee has no knowledge of the standard or has not received the appropriate training for the standard. However, in the instant case, although the higher standard and implied code were not communicated to Respondent and he did not receive training regarding handling conflicts with students or aggressive students, Respondent knew that he could report misconduct by a student to the assistant principal or school resource officer. Respondent failed to make such a report and, instead, chose to confront Simmons. Consequently, the absence of knowledge of a standard or the absence of training on the standard is of no consequence in the instant case. After an investigation, Mr. Menendez determined that Respondent had violated Petitioner's policy prohibiting fighting at the workplace and recommended to the Superintendent of Monroe County schools that Respondent be terminated from employment with Petitioner. Subsequent to Mr. Menendez's recommendation, a review of the incident was conducted by Petitioner's Director of Human Resources, Michael Wheeler, whose role was that of a hearing officer. Mr. Wheeler reviewed the allegations of misconduct against Respondent. Mr. Wheeler determined, based upon his review, that Respondent had violated Petitioner's policy against fighting at the workplace and recommended Respondent's termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Monroe County School Board enter a final order sustaining the dismissal of William Mitchell and terminating his employment. DONE AND ENTERED this 23rd day of July, 1999, 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 23rd day of July, 1999.
The Issue The issue is whether Respondent, a non-instructional employee of the School Board, is guilty of violating School Board Policy 6.37, and if so, whether termination of her employment is an appropriate sanction.
Findings Of Fact Background The School Board is responsible for hiring, overseeing, and terminating employees in the school district. Respondent is a non-instructional (support) employee at Explorer K-8 School (Explorer) in Spring Hill. She began working at Explorer as a Custodian I in school year 2014-2015 and was assigned the night shift, 3:45 p.m. to 11:30 p.m. Before coming to Explorer, Respondent was a custodian at Hernando High School in Brooksville, but left to fill a vacancy at Explorer, which was closer to her home. She was hired at the recommendation of Homer Lawson, an African American male and head custodian at Explorer. Barbara Kidder is principal at Explorer and has ultimate supervisory responsibility for all employees at the school, including the custodial staff. Lillian DiTucci is the assistant principal and also has supervisory duties over the custodial staff. Custodians at Explorer are assigned to either the day or night shift. Lawson, as head custodian, is responsible for supervising all custodians, regardless of the shift assignment. Eric Harris is the night custodian supervisor and is next in the chain of command below Lawson. Although Lawson works the day shift, he is present for approximately one hour of the night shift and meets with Harris prior to the start of that shift to go over various issues, including performance of custodial staff. Lawson is the first person to arrive at Explorer the next morning and conducts walk-throughs to ensure the areas have been cleaned by the night shift. As head custodian, Lawson is also in charge of custodial supplies at Explorer. If a custodian is out of supplies, Lawson requires the custodian to write on the board the supplies he or she needs for the next day and then he processes the request. The supplies usage is documented in a log book, with notation of the custodian's name and the date the supplies were issued. If the documentation shows one custodian is going through more supplies than the others, Lawson inquires of the custodian. Because of strict budgetary concerns, Lawson is vigilant in tracking the use of supplies. He does not deny necessary supplies, but he will give direction to be more responsible. The School Board has adopted Policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Groups II and III. The penalty for Group II offenses ranges from a written reprimand for the first offense to discharge for a third offense. Group III offenses are the most serious and carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating two Group II offenses, referred to as items in the policy: Item 7 - Creating or contributing to unsafe, unsanitary or poor housekeeping conditions; and Item 13 - Incompetency or inefficiency in the performance of duties. Respondent is also charged with violating five Group III offenses: Item 1 - Insubordination; Item 4 - Interfering with the work of other employees or refusal to perform assigned task; Item 12 - Violation of a posted or otherwise known Board or departmental rule, procedure, order, regulation of any State or County statute or ordinance which is related to the employee's employment; Item 14 - Improper racial or sexual comments, harassment or acts; and Item 23 - Refusal to work overtime or hours as assigned. The Inappropriate Conduct Which Led to the Charges From the very beginning of her employment with Explorer, Respondent exhibited numerous performance issues, including the complete failure to perform assigned tasks, which resulted in a high volume of complaints from teachers and staff throughout the fall term and required multiple meetings with, and direction from, supervisors. On September 4, 2014, or a few days after she began working at the school, Harris met with Respondent regarding her cell phone usage during work hours. Harris witnessed and received complaints from other school employees that Respondent was on her cell phone "a lot," which resulted in less productivity and caused a distraction because she often kept her phone on speakerphone. Respondent responded that she would shut it off and use it only for emergencies. Respondent was assigned to clean the classroom of Michele Hann, an Exceptional Student Education (ESE) teacher at Explorer. On Thursday, September 18, 2014, Hann emailed Lawson and stated that her classroom had not been properly cleaned in a manner that was acceptable for ESE students, some of whom had medical needs requiring a very clean environment. She also noted that food from the day before was still on the floor, the paper towels by the sink had not been replaced since the previous Friday, and her Terminator bottle (containing a disinfectant) was empty. Harris was given a copy of Hann's email and discussed these complaints with Respondent. Among other responsibilities, Respondent was required to restock paper towels in the classrooms that she cleaned. On September 19, Lori Linauer, a teacher at Explorer, emailed Lawson that the bathroom in her classroom had been out of paper towels since the day before. Based on these complaints, Respondent was assigned a new area that required less responsibility, but the complaints regarding her performance deficiencies continued. One of her new assignments was cleaning the school's locker rooms. A few days later, Harris received a complaint that the locker rooms were not being cleaned. It takes "at least a half hour [to clean] each locker room to do a good job," and the night shift ends at 11:30 p.m. Harris observed that on September 22 and 23, Respondent did not begin cleaning the locker rooms until around 10:45 p.m. and 11:10 p.m., respectively. These observations enabled Harris to confirm that Respondent was doing her work "quick at the end of the night," without properly cleaning the rooms. Harris discussed this concern with Respondent and even assisted her with cleaning the locker rooms on several occasions. Custodians are instructed to place their carts in the custodial closet at the end of their shifts. On September 25, Harris met with Respondent after she continued to leave her cart and radio in the recreation hall at the end of her shift. Respondent gave no credible reason why she ignored this requirement. On September 29, Harris received another complaint that the locker rooms were not properly cleaned. When he confronted Respondent about this complaint, she explained that other rooms were messy and she had "meetings," implying that she had insufficient time to finish her work. Because Respondent had still not secured her assigned badge that would allow her access to the locker rooms (once they were electronically locked in the evening), Harris had to unlock the boys' locker room at 11:30 p.m. and then retrieve her cleaning materials so that she could finish the job. On October 21, Harris checked the boys' gang bathroom (a multi-use bathroom with six or more stalls) and found the toilet bases filthy and not wiped down. Harris met with Respondent to discuss this concern. The next day he noticed that Respondent failed to properly clean the toilets and mirrors in the girls' gang bathroom. Harris once again met with Respondent to discuss these concerns. Respondent told Harris that she needed a brush with a stick on it to make the job easier. Harris told her that she should clean the toilets the way everyone else did, by bending down and wiping them clean. On October 24, Respondent telephoned the principal's secretary at 4:15 p.m. and said she would be late because she had to pick up her employee's badge. However, Respondent did not pick up her badge that day. On October 28, Joanne Yarin, a Media Specialist at the school, informed Lawson by email that the women's restroom in the media center ran out of paper towels the afternoon before. Yarin had asked Respondent to refill the paper towels, but Respondent told her she wasn't sure if there were any more in the supply room. When the paper towels were not restocked by the following morning, Yarin contacted another custodian who promptly complied with her request. On October 29, Karen Federico, a music teacher at Explorer, complained to Lawson by email that Respondent failed to vacuum her classroom or take out the trash the night before. She also complained that the concession area women's bathroom had no paper towels. On November 3, Tammy Ashurst, a behavior specialist at the school, emailed Lawson regarding her concerns about Respondent's performance. A copy of the email was forwarded to Kidder and Harris. Ashurst pointed out that Respondent's failure to sweep or vacuum the floors was a recurring problem. When she entered her classroom that morning, Ashurst found a large section of the floor dirty and sticky and she had to ask another custodian to clean it. Ashurst asked Lawson to speak with Respondent regarding this issue. On November 5, Respondent telephoned the principal's secretary to say if she was not at work by 5:00 p.m. that day she was not coming in. She did not show up for work. Whether Respondent turned in a leave form for that day is not of record. Beside the performance issues, Respondent did not interact well with other staff at Explorer. On November 7, she was involved in a verbal altercation with another custodian, Haley Carson, whose car (with the Carson baby inside) was nearly struck by Respondent's car the prior evening when Respondent sped out of the parking lot at the end of their shifts. Respondent also had a verbal altercation with another co-worker in the parking lot after parking at an angle and into the adjacent parking space used by the co-worker. Respondent told the co-worker that she (Respondent) always parked like that and to move her car if she didn't like it. On November 7, Harris received a complaint from another school employee, Mr. Baroudi, whose position is unknown, that the garbage in his room had not been emptied on two occasions and food sat in the trash can for days. On November 18, Juliet Figueroa, another night shift custodian who had just started work the day before, was given the rundown on her job (a "411") by Respondent. During the conversation Respondent asked Figueroa if "you know the manager Homer [Lawson]? I don't call him that I call him nigger." During the same conversation, Respondent referred to a former co-worker, Mundreanu, who is Romanian, as a "communist." She also asked Figueroa if she was a Puerto Rican, since Respondent thought she looked like a Mexican. Figueroa was "taken aback" by these comments and reported the incident to Kidder. At hearing, Respondent claimed that Figueroa misunderstood her and that she actually used the word "negro," which means black in Spanish, and not the word "nigger." However, Figueroa understands Spanish and knows the difference between "nigger" and "negro." Respondent's assertion that she did not use this language has not been accepted. On or about November 19, during his morning walk- through, Lawson observed feces in the stalls and soap scum on the walls of the girls' gang bathroom near the school cafeteria that should have been cleaned by Respondent. Lawson spoke with Harris and told him to direct Respondent to take care of it. Harris directed Respondent to clean the area, but she failed to comply with his instructions. Lawson then informed DiTucci. On November 20, DiTucci met with Respondent to discuss these latest performance deficiencies. Respondent refused to attend the meeting unless Lawson was not present, claiming she did not consider him to be her supervisor and he had "disrespected" her at work. At the meeting, Respondent argued the substance was chocolate and not feces, but the areas should have been cleaned regardless of the substance. By then, DiTucci had checked it out and confirmed Lawson's initial findings. Respondent also contended that she was not given sufficient supplies to finish her work, even though she sometimes used three times the amount of supplies as other custodians. Finally, she claimed that Lawson had accused her of stealing supplies but there is no credible evidence to support this assertion. The meeting ended with Respondent threatening to hire an attorney to respond to the charge that she was stealing supplies. On November 21, Harris documented that Maggie, another school custodian, witnessed Respondent's cart not moving for more than an hour earlier in the day. Each room typically takes 15 to 20 minutes to clean, and the cart is parked outside the room for easy access. Harris testified that this may have explained why Respondent's areas were not being properly cleaned. The same day, without seeking permission, Respondent told Harris she was leaving early, saying she "forgot to punch out for lunch goodnight." Custodians are required to punch out for "lunch" from 7:30 p.m. to 8:15 p.m., a paid break. There is no option available to employees to work through lunch period and leave work earlier at the end of the shift. As of November 25, Respondent had still not cleaned the feces off the girls' bathroom wall. As a result, Kidder asked Harris to again direct Respondent to clean the girls' bathroom. She also asked Harris to remind Respondent to turn in a leave form for November 21, and to explain that she must punch in and out for lunch. Respondent finally complied with the directive to clean the girls' bathroom wall after DiTucci and Harris accompanied her to the bathroom, showed her the feces, and directed her to clean the area. On December 1, Stacy Tarbox, a paraprofessional at the school, emailed Lawson and Harris regarding Respondent's failure to clean the girl's locker room. Tarbox noted that it was dirty, the lockers had a thick layer of dust on top, the walls had not been cleaned, and the floors had not been pressure washed for some time. This was the same locker room Harris had previously talked to Respondent about in September. On December 2, Figueroa filed a bullying and harassment complaint against Respondent based on the November 18 incident in which Respondent made disparaging remarks about Lawson and Mundreanu. The essence of the complaint was that these comments created a hostile working environment. That afternoon, Kidder conducted a conference with DiTucci, Lawson, Respondent, and her union representative to discuss the bullying complaint and allegations that Respondent's conduct constituted a violation of three Group III offenses (items 7, 14, and 23) and one Group II offense (item 7). In response to these charges, Respondent initially said she could not remember using any racial terms when speaking with Figueroa but later labeled Figueroa as a liar and threatened to sue her. She claimed that she did not know what a "commie" meant and again called Figueroa a liar. She also said she never saw feces on the bathroom wall. If that was the case, she should have asked Harris where it was rather than doing nothing. In response to the charge that she refused to meet with her supervisor, Lawson, she claimed that he had accused her of stealing supplies, disrespected her, and hindered her in performing her work. Finally, she contended that before she left work on November 21 (without punching out for lunch), she told Harris that she was not feeling well. At the conclusion of the meeting, Kidder twice asked Respondent if she had any further response to the allegations and what it would take to change things. Respondent refused to respond. Respondent also declined to say if she intended to return to work at her assigned time and perform her duties. Kidder ultimately determined on December 18 that the bullying and harassment complaint was unfounded since it was an isolated incident, but concluded that Respondent's use of the offensive language was a violation of item 14 in Group III, which prohibits the use of improper racial comments. Beside the performance issues, Respondent's behavior at school offended other custodians. According to one co- worker, Respondent made the work environment feel "hostile" and "tense." There was testimony that co-workers had confrontations with Respondent about her work ethic and that Respondent gave a minimal effort to complete tasks. Also, there were nights when co-workers had to help her complete her assignments. Finally, the record shows that Respondent was always complaining about work and how she did not like her job. In short, there was a "bad atmosphere" at school among the custodians. Given the myriad of performance deficiencies, Lawson recommended to Kidder that Respondent be terminated, as her performance had steadily gone "downhill." Harris agreed with this assessment and pointed out that when compared with other custodians, Respondent's job performance was "poor to fair." Notably, the number of complaints about Respondent far exceeded those received for any other custodian. Kidder decided to make a recommendation at the school level to terminate Respondent. Her recommendation was based on Respondent's gross insubordination, a failure to perform assigned tasks, and violations of policy 6.37. This recommendation was supported by the fact that there were numerous emails and documents from teachers and staff outlining Respondent's issues as well as a series of meetings to address the concerns, none of which resulted in an improvement in Respondent's performance. In accordance with school protocol, a pre- determination meeting was held by Kidder on December 10, 2014, for the purpose of allowing Respondent to respond to not only the charges discussed at the December 2 meeting, but all offenses that had occurred since September. Respondent attended the meeting with a union representative. During the meeting, she refused to take responsibility for her actions and offered only excuses. She was argumentative with School staff and her union representative. Based on her lack of remorse and caustic attitude towards supervisors and co-workers, Kidder determined that termination was the appropriate action. On January 7, 2015, the Superintendent recommended that Respondent should be terminated, and pending final action by the School Board, she should be suspended, with pay. After Respondent filed a letter appealing this proposed action, the Superintendent recommended that the School Board suspend Respondent, without pay and benefits, pending an administrative appeal to DOAH. The recommendation was accepted by the School Board and the matter was referred to DOAH. At hearing, Respondent failed to present any credible evidence to rebut the charges or the evidence presented. She simply offered excuses like Lawson was difficult to work with, she was assigned a difficult area to clean due to high use, her co-workers did not help her clean, and she did not get sufficient supplies. While a former custodian testified that she also had problems getting sufficient supplies from Harris, neither spoke directly with Lawson to remedy this situation. Moreover, the evidence shows that Respondent used far more supplies than necessary and far more than other custodians.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hernando County School Board enter a final order terminating Respondent's employment for violating the following offenses in School Board Policy 6.37: items 7 and 13 in Group II and items 1, 4, 12, 14, and 23 in Group III. DONE AND ENTERED this 13th day of July, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 July, 2015.
The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
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. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, 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 15th day of January, 2015.
The Issue Whether just cause exists to uphold the dismissal of Tirso Valls ("Respondent") from employment with the Miami-Dade County School Board ("School Board" or "Petitioner").
Findings Of Fact Based on the record and the evidence presented, the undersigned makes the following findings of fact: At all times relevant to this case, Petitioner was charged with the duty to operate, control, and supervise all public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, § 4(b), Florida Constitution, and section 1012.23, Florida Statutes. Respondent was employed as a physical education teacher at Cutler Ridge Elementary School ("CRES"). Respondent first arrived at the school in August 2017 at the start of the 2017/2018 school year. Shortly after his arrival, Respondent began exhibiting odd behavior, which was noticed by the administration and other staff members. The principal, Wright-Mullings, found that it was difficult to communicate with Respondent and he appeared disheveled in his dress and appearance at times. Early in the 2017/2018 school year, fifth-grade students also began complaining about Respondent's behavior. In response, three separate investigations were initiated into Respondent's conduct based on specific reports by several students. The first concerned allegations that Respondent was making insulting comments, screaming, and poking students; the second concerned Respondent allegedly snatching a jump rope from a female student, injuring her hand; and the third allegation concerned Respondent referring to a female student in a demeaning manner and calling her derogatory names. Pet. Exs. 3-5. These allegations gave the principal cause for concern because she wanted students and their parents to feel comfortable with teachers at the school. She also felt that these allegations raised safety concerns. After investigation by the school police, probable cause for three separate violations of School Board Policy 3210, Standards of Ethical Conduct, were found.2/ Taking exception to the investigative results, Respondent requested that a supplemental investigation be conducted. This was done. However, the outcomes of the initial investigations did not change. Pet. Exs. 6 and 7. Respondent was not formally disciplined for the allegations or findings made in these investigations, since the disciplinary process was never fully completed. However, as a result of these investigations, Respondent was removed from CRES and placed in an alternative assignment at the regional office on September 1, 2017, followed by placement at the District's Federal and State Compliance Office on September 19, 2017. The principal remained concerned that despite completion of the three investigations and disciplinary process, the safety of the students could still be in jeopardy if Respondent returned to the school. Suffice it to say, that in addition to these three investigations, multiple and repeated instances of odd and bizarre behavior by Respondent occurred at school and around the students he was charged to protect and educate. These are outlined in detail in Petitioner's Exhibit 14. They occurred primarily from August 18 through September 1, 2017. Some of the odd and abnormal behavior by Respondent was witnessed by the principal herself. Other behavior was reported by staff members and supplemented or explained what the principal had seen. For several months, and during the course of the investigations, the principal had expressed her ongoing concerns about Respondent to Pina, district director of the Office of Professional Standards. They also discussed the need to refer Respondent for a medical fitness for duty evaluation. Pina shared the principal's concerns regarding Respondent's odd behavior and conduct. This was based, in part, on her own observations of Respondent. She too was concerned for the safety of the students. When Pina brought the results of the investigations regarding Respondent before the Disciplinary Review Team for review and action, it was decided that discipline would be deferred while the School Board proceeded with a fitness for duty evaluation of Respondent. Pina instructed the principal to monitor and record Respondent's behaviors and maintain the results in writing. Wright-Mullings contacted her staff and had some of them write statements regarding their observations of Respondent. Pet. Exs. 10-13. Wright-Mullings compiled her own written summary containing her observations of Respondent's conduct, as well as conduct and actions by Respondent that her staff had observed and reported. Pet. Ex. 14. These observations by her and the staff included, among other things, Respondent's inability to understand directives and to communicate; repeatedly asking the same questions or asking for clarity on points made to him; the inability to understand sample lesson plans; a disheveled appearance that included holes in his shirts and body odor; suppressed anger when questioned about uncompleted tasks; illogical explanations concerning his actions; a nervous laugh; odd facial expressions; staring blankly at coworkers; speaking very close to people in their personal space and becoming agitated. These behaviors and the incidents giving rise to the investigations were carefully evaluated, weighed, and considered by Wright-Mullings. They gave the principal reasonable cause for concern, and she was uneasy with the prospect of Respondent coming back to work at CRES. Other teachers and staff members at CRES also expressed discomfort regarding Respondent's odd and abnormal behaviors.3/ Pursuant to School Board Policy 3161--Fitness for Duty--and Article XXI, Section (2)(F), of the Collective Bargaining Agreement between the United Teachers of Dade Labor Union and the School Board ("UTD Contract"), Pina held a Conference for the Record ("CFR") with Respondent on April 11, 2018, to address concerns about his fitness for duty. Pet. Ex. 19. At the conference, Respondent was advised of the troubling nature of his behavior and conduct, and the need of the School Board to do a fitness for duty evaluation of him. Pet. Ex. 19. On April 16, 2018, Respondent was again advised of the basis for a fitness for duty evaluation in writing. He signed a release to have the results of that evaluation sent to Pina. Pet. Exs. 16 and 17. As permitted by School Board policy, Respondent reviewed and selected a licensed psychologist from a list provided to him. Thereafter, a request for an evaluation of Respondent was sent to the doctor he selected, Dr. Theodora "Teddy" Tarr, on April 17, 2018. Pet. Exs. 18 and 19. Dr. Tarr had two clinical sessions with Respondent. She also reviewed Respondent's work history at Miami-Dade County, as well as Respondent's prior written responses to the complaints at the elementary school. Respondent also completed an intake form and a self-inventory on certain issues that were of concern to the doctor, both of which were reviewed and considered by her. Pet. Ex. 20, p. 57. After an examination and testing of Respondent, Dr. Tarr prepared a confidential assessment report. In essence, her report concluded that Respondent was not fit for duty as a teacher. More specifically, the report from Dr. Tarr stated: Refer Mr. T.V. for therapy. He needs social skill training and further assessment. He is incapable or unwilling to correct negative behaviors evidencing poor communication skills for self-control. It is not advisable he return to a teaching environment without identifying inappropriate behaviors and correct boundary, communication and social skill issues. Mr. T.V. is not qualified to return to his position in the MDC School System due to poor insight, poor boundaries, difficulty communicating, and confusing body language. (Emphasis added). Pet. Ex. 20, p. 57. Dr. Tarr provided the report to Pina. Subsequently, Pina held another conference with Respondent on April 30, 2018. At the conference, it was explained to Respondent that he had the option to seek a second fitness medical opinion pursuant to the UTD Contract, and that he could take a medical leave of absence, resign, or retire. Pet. Ex. 21. Respondent was required to give Pina his decision by May 3, 2018. Respondent gave no response by the May 3, 2018, deadline. He also never sought a second medical opinion despite having the rest of the school year and summer months to do so. On August 1, 2018, Pina held another meeting with Respondent and advised him that since he had not exercised any of the options available to him, and based on the doctor's report and his conduct and actions to date, the School Board would be dismissing him at the School Board meeting of August 15, 2018. Pet. Exs. 22 and 23. On August 16, 2018, Respondent was sent a final memorandum informing him that he had been dismissed by the School Board. Pet. Ex. 25.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Miami-Dade County School Board upholding Tirso Valls' dismissal from employment with the School Board. DONE AND ENTERED this 12th day of March, 2019, 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 12th day of March, 2019.
The Issue Did the Hendry County School Board (Board) have just cause to terminate Respondent from her employment as a paraprofessional teacher's aide?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent was employed by the HCSD as a paraprofessional teacher's aide at LMS. The employment relationship between the Board and Respondent is subject to the terms and conditions of the Collective Bargaining Agreement Article 8, Section 8.013, Collective Bargaining Agreement, provides that "when an employee has completed three (3) years of the past five (5) with satisfactory service with the Hendry County School Board . . . and has been appointed for a subsequent year, he [sic] will be eligible for continued employment status, which status will continue year to year unless the Board terminates the employee for just cause (Emphasis furnished). Respondent was first employed with the HCSD on August 18, 1986, and worked continuously through May 25, 1999, when she was terminated. Since Respondent achieved "continued employment status," she can only be terminated for "just cause." The Board terminated Respondent for "failure to perform assigned duties in a satisfactory manner" and "other sufficient cause" under School Board Policies and Procedures 218. There were no written evaluations of Respondent's performance accomplished during the first 9 years of Respondent's employment with the HCSD because the Board did not adopt its current policy until approximately 1996. However, there is no evidence that Respondent's work performance was unsatisfactory during the first 9 years of her employment with the HCSD. Respondent worked at LMS for each of those nine years of her employment with the HCSD and was routinely re-appointed for each ensuing year. The first 2 years of her employment, Respondent was assigned to work with students that were classified as "trainable mentally handicapped." Respondent had to assist these students in learning rudimentary skills such as brushing their teeth and changing their underwear. From the fall of 1988 until the spring of 1992, the equivalent of 4 school years, Respondent was assigned to the "Time Out Room." The assignment to the "Time-Out Room" was not punitive in nature, or the result of unsatisfactory work performance by Respondent. Disruptive students that caused a problem in the classroom were sent to the "Time-Out Room." The students went in the "Time-Out Room" for one period after which they usually would return to their regular class. Although Respondent was employed as a "Teacher's Aide" for exceptional education students with special needs she did not assist a teacher, but ran the "Time-Out Room" alone. After 4 years working in the "Time-Out Room," Respondent was assigned to Internal Suspension. The "Time-Out Room" was eliminated, and replaced with Internal Suspension. Internal Suspension was used as a form of discipline for students who violated school policy. Students were sent to Internal Suspension anywhere from 2 to 10 days. Internal Suspension was conducted in a double-wide trailer behind LMS. Respondent again was by herself in Internal Suspension and was not assisting a teacher. The first documentation of any performance deficiency by Respondent consists of a Procedure for Improvement form and a Special Non-Instructional Personnel Evaluation form, both dated January 22, 1996. The forms were prepared by James C. Allen, Principal of the LMS. The Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent achieved a "satisfactory" designation for 6 areas and a "Needs Improvement" in "Quality of Work" and "Work Attitude." The deficiencies specified in the Procedures for Improvement form are: "Harshness in speaking with staff and students, assisting students with academic work, unacceptable activities in classroom, needlepoint, police scanner." The Procedures for Improvement form provided that Respondent had the "95/96 school year" to improve, and that Mr. Allen would "Recommend dismissal" if the deficiencies were not improved. Respondent successfully improved her performance. On March 21, 1996, Mr. Allen wrote a letter to Respondent's union representative, with a copy to Respondent, stating that "I too am optimistic that improvement has occurred." On April 1, 1996, Mr. Allen wrote directly to Respondent expressing concern about "complaints/concerns" received about her conduct on a Beta Club trip to Washington, D.C., but stating, in pertinent part: These concerns cannot be overlooked, however, since we initiated procedures for improvement January 22, 1996, which dealt specifically with harshness in speaking with students/staff. Improvement has been noted. It must also be pointed out that Ms Dankanich (Beta Club sponsor) and some staff members felt that you did a good job in controlling your students and watching out for their safety and welfare. (Emphasis furnished). The March and April 1996 letters from Mr. Allen were included in Respondent's personnel file. Also included in the personnel file were letters from the Beta Club sponsor for the Washington, D.C. trip and a chaperone. These letters stated that Respondent spoke to students and adults and conducted herself in an appropriate manner throughout the trip. Respondent's annual "Overall Evaluation" for the 1995-1996 school year was "Satisfactory." Mr. Allen checked the box entitled "Reappoint based on employee's willingness to improve job dimensions not satisfactory." Respondent attained a "Satisfactory" score on 6 out of eight areas listed for job dimension with "Quality of Work" and Work Attitude" checked-off for "Needs Improvement." Respondent was reappointed and returned to LMS for the 1996-1997 school year. Respondent was assigned to assist with the "trainable mentally handicapped" students after having been on her own in the "Time-Out Room" and Internal Suspension for 8 years and working with Exceptional Student Education (ESE) students. This assignment required an adjustment for Respondent. On February 11, 1997, Allen presented Respondent with another Procedures for Improvement form and Special Non- Instructional Personnel Evaluation form. As in the preceding year, the Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent "Needs Improvement" in "Quality of Work" and "Work Attitude." The Procedures for Improvement form identified deficiencies as "failure to perform assigned duties in a satisfactory manner, harshness in speaking with students/staff; unacceptable activities in classroom," and afforded Respondent the 96\97 school year to improve or be recommended for dismissal. Respondent wrote on both forms that she did not agree with them. In April 1997, 12 professional colleagues of Respondent wrote letters of support. These letters were included in Respondent's personnel file. The letters vouch for Respondent's professionalism and many stated that Respondent never was observed to engage in improper conduct or exhibit inappropriate speech or tone of voice. Throughout the second semester of the 1996-1997 school year, Respondent worked 2 class periods as a teacher's aide for Erin Berg-Hayes. Ms. Berg-Hayes was a sixth grade ESE teacher. Ms. Berg-Hayes testified that Respondent's job performance during the 1996-1997 school year was satisfactory. Respondent did not receive annual evaluation for the 1996-1997 school year. Since Respondent was not told otherwise, Respondent assumed she had improved her performance to Mr. Allen's satisfaction. Respondent received a letter of appointment at the end of the 1996-1997 school year and was reappointed for the 1997-1998 school year. For the 1997-1998 school year, the sixth grade students at LMS were moved to the Sixth Grade Center (SGC). Jodi Bell assistant principal at LMS was assigned to administer the SGC. Mr. Allen remained as principal at the LMS which consisted of seventh and eighth grade students. Respondent worked as Erin Berg-Hayes' full-time aide for the 1997-1998 school year. Respondent and Ms. Berg-Hayes were assigned to the SGC. Ms. Berg-Hayes characterized Respondent's job performance during the 1997-1998 school year as "good." When Ms. Bell prepared Respondent's annual evaluation, Ms. Berg-Hayes advised Ms. Bell that she was "pleased" with Respondent's performance and "on the overall [Respondent's] performance was good and satisfactory." Ms. Bell prepared Respondent's 1997-1998 annual evaluation for the 1997-1998 school year. Ms. Bell checked off "satisfactory" in the 8 areas designated for assessment. There were no check marks in the "Needs Improvement" column. On the 1997-1998 annual evaluation, Ms. Bell checked the box for "Satisfactory" as Respondent's "Overall Evaluation," and also checked the box for "Reappoint for next year." In the section entitled "Comments by Evaluator," Ms. Bell wrote: "I have appreciated your willingness to go above what is expected and help wherever help is needed. Keep up the good work!" Respondent returned to the SGC as Ms. Berg-Hayes' Aide in the 1998-1999 school year. Ms. Berg-Hayes and Respondent worked together for the fall semester after which Respondent requested to be reassigned. Respondent attributed this to a personality clash with Ms. Berg-Hayes that started in July 1998. Ms. Berg-Hayes testified that Respondent's performance declined in the 1998-1999 school year. Cathy Lipford, teacher's aide at SGC, who worked together with Ms. Berg-Hayes and Respondent for one period during the entire fall semester in the 1998-1999 school year did not observe a problem with Respondent's work performance. This teachers' aide was aware of some tension between Respondent and Ms. Berg-Hayes. However, this aide testified that Respondent appeared to take the initiative, and assisted students, and the aide never observed Respondent speaking inappropriately to students. Ms. Berg-Hayes did not prepare any documentation of Respondent's alleged performance deficiencies during the fall semester of the 1998-1999 school year. Ms. Berg-Hayes was not consulted about Respondent's performance by Mr. Allen, the former principal of LMS or Mr. Cooper, the current principal of LMS at the time Respondent's performance was evaluated for the 1998-1999 school year, when it was decided to recommend dismissal of Respondent for failure to perform her assigned duties or other sufficient cause. During the spring semester of the 1998-1999 school year, Respondent was assigned as an aide to Dorothy Lomago, a varying exceptionalities teacher for seventh and eighth grade students. Respondent and Ms. Lomago worked together from January 1999 through May 1999. Ms. Lomago had been employed by the Board for 25 years. Prior to Respondent, Ms. Lomago only had had 2 other teaching assistants. Ms. Lomago considers compassion for children and initiative as the most important characteristics for a teacher's aide in special education. Ms. Lomago rated Respondent's performance in those areas as "ineffective." Ms. Lomago considered Respondent adequate in performing clerical tasks such as copying papers and grading papers. Ms. Lomago did not document Respondent's performance deficiencies. Ms. Lomago neither counseled nor corrected Respondent. Likewise, Ms. Lomago never brought to Respondent's attention the things she believed Respondent failed to do or did wrong. Ms. Lomago merely did what she was told to do by Mr. Cooper when he arrived at LMS in March 1999. On March 31, 1999, Respondent went to Mr. Allen's office for her 1998-1999 annual evaluation. R. Scott Cooper, assistant principal, Ms. Jodi Bell, assistant principal, Mr. Allen, and Ms. Davis, assistant principal were present in Mr. Allen's office upon Respondent's arrival. This meeting was terminated after Mr. Allen indicated there was a problem and asked Respondent if she wanted union representation. Respondent replied that she thought it would be wise. Before the meeting on March 31, 1999, Respondent was not aware that her job performance was considered deficient. Respondent had not been told of any deficiencies and had not received any counseling. In March/April 1999, Mr. Allen retired, and was replaced as principal of LMS by Mr. Cooper. Mr. Cooper arrived at LMS some time in the last 2 weeks of March 1999. Respondent and Mr. Cooper had had no professional contact before March 1999. Mr. Cooper met with Respondent on April 16, 1999, for Respondent's 1998-1999 annual evaluation. Mr. Cooper gave Respondent 4 separate Procedures for Improvement forms and an Annual Non-Instructional Personnel Evaluation form. This was Respondent's first notice of her specific performance deficiencies for the 1998-1999 school year. Mr. Cooper never conducted a formal observation of Respondent's job performance. Mr. Cooper based the annual evaluation predominantly on a review of the school board records, and on discussions with Mr. Allen, Ms. Bell, and Ms. Davis. The Procedures for Improvement forms specified the following deficiencies: "Work Attitude - able to successfully work with co-workers and students"; "Initiate Resourcefulness - ability to identify what needs to be done"; ""Dependability"; and "Quality of Work." The forms identified the following means of judging success in overcoming the foregoing deficiencies, respectively. "Supervisors will observe appropriate student/aide interactions in all circumstances"; "decreased necessity for teacher/supervisor to redirect Ms. Bennett's activities"; "Ms. Bennett will demonstrate the ability to effective [sic] facilitate school functions - adhere to work requirements"; and "Higher quality of work - decrease in errors." As a Statement of Assistance Offered, all of the forms provided: "Ms. Bennett may meet with Mr. Cooper weekly to obtain suggestions and assistance" Respondent was given until May 10, 1999, to improve her deficiencies. This was a period of 3 weeks or 15 school days. On Respondent's Annual Non-Instructional Personnel form, Mr. Cooper checked-off 4 out of 8 areas for "Needs Improvement" with "Satisfactory" checked for the remaining 4 areas. Mr. Allen checked "Unsatisfactory" for the "Overall Evaluation" and checked the box "Dismissal." Respondent noted her disagreement with the evaluation. On May 19, 1999, Mr. Cooper formally recommended dismissal of Respondent. Respondent received a Notice of Recommendation of Dismissal on that date. The Board approved Respondent's dismissal on May 25, 1999. During the 3 week period Respondent was given to improve her performance, neither Mr. Cooper nor any other administrator met with Respondent to advise her as to whether she was improving. There is no documentation whatsoever of Respondent's lack of improvement. During the 3 weeks Respondent was to improve her performance, she received repeated assurance from Ms. Lomago that they would be working together the following year. Ms. Lomago never advised Respondent that her performance continued to be unsatisfactory. Likewise, no one from the Board or any school administrator advised Respondent that she was not complying with the Procedures for Improvement or that her work continued to be unsatisfactory. Not hearing otherwise, Respondent considered her work to be satisfactory and did not meet with Mr. Cooper to obtain suggestions and assistance. The evidence does not establish that Respondent failed to perform her assigned duties in a satisfactory manner during the 1998-1999 school year or that the Board had just cause or any other sufficient cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board reinstate the employment of Annette Bennett-Edwards and provide for back pay and benefits retroactive to May 25, 1999. DONE AND ENTERED this 6th of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 6th day of March, 2000. COPIES FURNISHED: Edward A. Upthegrove Superintendent Hendry County School District Post Office Box 1980 LaBelle, Florida 33935-1980 Richard G. Groff, Esquire Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206 Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2989 Fort Myers, Florida 33902-2089
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school monitor on the grounds alleged in the Notice of Specific Charges filed September 5, 2002.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4B of Article IX, Constitution of the State of Florida and Section 230.03, Florida Statutes. At all times material hereto, Petitioner employed Respondent as a school security monitor and assigned her to work at Horace Mann, which is a public school located within the school district of Miami-Dade County, and, as will be discussed below, to a temporary duty location. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent’s employment with Petitioner began on April 12, 1993. At the times material to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) collective bargaining unit. On October 22, 2001, Metro-Dade Police arrested Respondent on charges of aggravated battery and violation of probation. Respondent remained incarcerated from the date of her arrest until May 15, 2002. Respondent admitted that she had engaged in a fight while she was on probation and that she had thereby violated the terms of her probation. Respondent did not report to work between October 22, 2001, and May 15, 2002. Respondent sent a letter to Petitioner dated December 3, 2001, and addressed "to whom it may concern." The letter reflects that Respondent had previously entered a plea to a charge of domestic violence for which she had been placed on probation. It also reflected that that she was in jail after violating the conditions of her probation by having engaged in a fight. Respondent's letter represented that she would be released from jail on February 4, 2002, and makes it clear that she wanted to retain her employment, if possible. Carolyn Blake was the principal of Horace Mann at the times material to this proceeding. Ms. Blake learned of Respondent’s arrest within days of its occurrence. Shortly thereafter, Ms. Blake forwarded her home telephone number to Respondent and sent Respondent a message to call her collect from jail so that she and Respondent could discuss Respondent’s employment intentions. On December 26, 2001, Respondent placed a collect call to Ms. Blake at Ms. Blake’s home. Ms. Blake accepted the collect call from Respondent. During the ensuing telephone conversation Respondent told Ms. Blake that she would be released from jail by February 4, 2002, and that she hoped to return to work. Ms. Blake told Respondent she should consider resigning from her employment with Petitioner because of the number of days she had been absent without authorized leave. On January 14, 2002, Ms. Blake attempted to communicate with Respondent through a memorandum sent to Respondent's home address. The memorandum reflected that Respondent had been absent from her worksite since October 19, 2001, and that the absences had impeded the effective operation of the worksite. The memorandum requested that Respondent select from among four options and to notify her worksite within three days of the date of the notice regarding her employment intentions. The four options were to (1) notify the worksite of the date she intended to return to work; (2) apply for leave of absence; (3) resign; or (4) retire. The January 14, 2002, memorandum, further advised Respondent that her absences would continue to be unauthorized until she communicated directly with Ms. Blake as to her employment intentions. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee. At the times material to this proceeding, Respondent was not eligible for a leave of absence under Petitioner’s leave polices. On March 11, 2002, Respondent was directed to report to a conference-for-the-record (CFR) scheduled for March 28, 2002, at the School Board’s Office of Professional Standards (OPS) to address, among other things, Respondent’s arrest; her violation of School Board rules dealing with employee conduct; her excessive absenteeism; and her future employment status with Petitioner. The notice that instructed Respondent to attend the CFR was mailed to Respondent's home address. On March 28, 2002, Respondent was still incarcerated, and she did not attend the scheduled CFR scheduled for that day at OPS. On March 28, 2002, a CFR was held at OPS in Respondent’s absence. At the CFR held on March 28, 2002, Respondent’s employment history with the School Board was reviewed, including the number of days that Respondent had been absent from her worksite, with special emphasis on the number of days she had been absent without authorized leave. On March 28, 2002, Ms. Blake recommended that Respondent’s employment with the School Board be terminated due to Respondent’s excessive absenteeism and because of the adverse impact Respondent’s absenteeism was having on the operation of the school site. As of March 28, 2002, Ms. Blake had received no communication from Respondent since their telephone conversation on December 26, 2001. Despite having Ms. Blake’s home telephone number and knowing that she would accept a collect call, Respondent made no effort to contact Ms. Blake after Respondent learned that she would not be released from jail on February 4, 2002. By notice dated April 23, 2002, Respondent was directed to appear on May 8, 2002, at a meeting at OPS to address the employment action that had been recommended by Ms. Blake. This written directive was sent by mail to Respondent's home address. As of May 8, 2002, Respondent was still incarcerated. Because of her incarceration, Respondent did not attend the meeting and had not reported to her worksite. On May 8, 2002, the scheduled meeting was held at OPS. As a result of the meeting, the Superintendent recommended that the School Board terminate Respondent's employment and scheduled the recommendation to be considered by the School Board at its meeting of June 19, 2002. On May 16, 2002, the day after she was released from jail on May 15, 2002, Respondent called Ms. Blake, who instructed her to meet with an administrator at the regional office. Respondent complied with that directive and was ordered by the administrator to report to an alternative work site pending the School Board’s action on the recommendation to terminate her employment. Respondent refused to comply with the order to report to an alternate worksite because she did not want to jeopardize her claim for unemployment compensation benefits. From October 22, 2001, through May 15, 2002, Respondent was incarcerated and was absent from work without authority. From May 16, 2002, through June 19, 2002, Respondent was absent without authority and either failed or refused to report to work. For the school year 2001-2002, Respondent accumulated 142 unauthorized absences. On June 19, 2002, the School Board suspended Respondent and initiated dismissal proceedings against Respondent on the following grounds: excessive absenteeism and/or abandonment of position; willful neglect of duty; and violation of School Board rules dealing with employee conduct. Respondent’s family received Ms. Blake’s memorandum and the notices of scheduled meetings that were mailed by Petitioner to Respondent’s home address while Respondent was incarcerated. Respondent testified that she did not see the memorandum and notices until after she was released from jail. There was no justification for Respondent’s failure to contact Ms. Blake after Respondent learned she would not be released from jail on February 4, 2002. There was no justification for Respondent's failure to attempt to comply with Petitioner's leave policies. There was no justification for Respondent’s refusal to report to the alternate worksite as instructed by the administrator at the regional office.
Recommendation Based upon the foregoing findings of act and conclusions of law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order find Respondent guilty of excessive absenteeism, gross insubordination, and willful neglect of duty as alleged in Counts I and II of the Notice of Specific Charges. It is further RECOMMENDED that the final order sustain Respondent's suspension without pay and terminate her employment as a school monitor. DONE AND ENTERED this 10th day of December, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 December, 2002.
