The Issue The issue posed for decision herein is whether or not the Petitioner's, Orange County School Board, suspension without pay of Razzi Lee Smith from his position of classroom teacher is warranted.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing briefs and memoranda, and the entire record compiled herein, the following relevant facts are found. During times material to the allocations herein, Respondent, Razzi Lee Smith, was employed by the Petitioner, School Board of Orange County, Florida, as a classroom teacher at Rock Lake Elementary School. On October 7, 1980, Petitioner suspended Respondent without pay from his position as a teacher pending a hearing. Respondent requested a hearing pursuant to the authority contained in Sections 120.57(1) and 231.36, Florida Statutes (1979). The charges upon which the suspension is based are, in summary fashion, that Respondent is guilty of gross insubordination, willful neglect of duty and misconduct in office. The specific charges are based upon the following grounds: On or about September 24, 1980, Respondent twice refused a lawful and reasonable order of his Principal. On or about September 24, 1980, Respondent threatened his Principal. During the months of August and September, 1980, Respondent evidenced in the presence of others, a continuing belligerent and hostile attitude towards his Principal. During the months of August and September, 1980, Respondent failed to follow the established written procedures for calling in if he was to be late or not present. 5. On September 2, 19, 22, 24 and 25, 1980, Respondent failed to report to the school by 8:00 o'clock a.m. as required in the Faculty Handbook. Additionally, Respondent was charged with misconduct in office and willful neglect of duty based upon the following grounds: On August 29, 1980, Respondent was absent from his assigned work location at Rock Lake Elementary School. On September 12, 1980, Respondent took sick leave for one half day claiming that he was too sick to finish the school day at Rock Lake Elementary School but later attended a football game in Tampa, Florida. On September 23, 1980, Respondent took sick leave claiming to be too sick to teach at Rock Lake Elementary School but attended football practice at Jones High School as a coach. On September 26, 1980, Respondent provided the Superintendent with a false oral statement, to wit, that he did not leave to go to the football game in Tampa on September 12, 1980, until approximately 7:00 o'clock p.m., arriving at the game around half time at 8:30 p.m., when in fact Ice left to go to the game with the Jones High School football team. Lois Begley has been the acting principal at Rock Lake Elementary School since approximately February, 1980. Upon assuming the duties of acting principal, Ms. Begley immediately advised teachers at Rock Lake to report for work at 8:00 o'clock a.m. and leave at 3:30 p.m. Petitioner has a policy whereby teachers who find it necessary to be absent must report such intentions by 6:30 a.m. by notifying either Ms. Begley or an office employee at Rock Lake, Caroline Johnson. Respondent was advised of this policy; was warned of his breach of said policy on two occasions during February and March of 1980, and admitted that he was aware of the policy. (Petitioner's Exhibits Nos. 3, 4 and 5) Ms. Begley stressed the need to know of a teacher's intended absence prior to 7:00 o'clock a.m. in order to recruit a substitute teacher. Subsequent to March, 1980, Respondent was again advised of Petitioner's policy respecting timely reporting for duty at Rock Lake Elementary School. (Petitioner's Exhibit No. 6) During a faculty meeting held during the afternoon of the last day of preplanning, August 29, 1980, Ms. Begley observed that Respondent was not present. She inquired of Respondent's whereabouts and was advised by an office employee that Respondent had called and reported that he was experiencing transportation problems. Ms. Begley observed Respondent at Jones High School later that same afternoon. During the last week of August, 1980, Respondent advised Ms. Begley that he had been leaving Rock Lake approximately one hour early each day during the preplanning week to assume coaching duties at Jones High and that this was cleared prior to Ms. Begley's tenure as acting principal at Rock Lake. Ms. Begley reluctantly agreed to Respondent's early departure during that school year, however, she made clear to Respondent that he would be expected to teach a full day the following year. Respondent and Ms. Begley made an agreement whereby he would report to work one half hour early, i.e., at 7:30 a.m., in order to make up for one half of the time lost due to his early departure from Rock Lake to coach at Jones High School. Respondent failed to report for duty at 7:30 a.m. as was his agreement with Ms. Begley. September 2, 1980, was the first school day for students at Rock Lake. Respondent reported for work at approximately 9:00 a.m. on September 2, 1980, and several students were observed milling around in the hallways attempting to find Respondent to enter their homeroom class. Respondent called the office at Rock Lake at approximately 8:30 a.m. on September 2, and advised that he was again experiencing transportation problems. Ms. Begley offered to assist Respondent in getting a ride to school. Within minutes, Ms. Begley had located a ride for Respondent. Ms. Begley called to so advise Respondent, whereupon Respondent told Ms. Begley that he had found a ride. As stated, Respondent reported for duty at 9:00 a.m. on September 2, 1980. Ms. Begley counselled Respondent regarding his claimed transportation problems again and stressed the reasons for her need to be alerted when he would be reporting late for work. Respondent generally discussed his problems with Ms. Begley on September 12, indicating that he was encountering personal problems that he did not care to divulge and that there were rumors about him being circulated around the school amongst other faculty members. Ms. Begley later discussed the problem regarding that fact that he had failed to make up 150 of the 300 minutes that he owed the School due to his early departure to coach at Jones High Sclcool during the week of preplanning. Ms. Begley did not take disciplinary action against Respondent due to his lateness in reporting for duty on the first day of school. Respondent requested the services of a substitute teacher to "fill in" for him during the afternoon of September 12, 1980, because he was ill. Respondent initially refused to divulge to school officials the nature of his illness. He attended and coached a football game between Jones High School and a local high school in Tampa that night. On September 19, 1980, Respondent reported for work at approximately 8:50 a.m. As late as 8:30 a.m. on that day, several students were unable to get in class and Respondent failed to call to advise Ms. Begley or the designated official that he would report for work late. When questioned as to the reason for his tardiness by Ms. Begley, Respondent replied that he had earlier advised her that he was having transportation problems. Ms. Begley again counselled Respondent regarding his continued tardiness in reporting to work. At that time, he was also directed not to use school supplies to photocopy football plays for use at Jones High School without proper authorization. On September 19, office aides, Ann Green and W. Oliver, work situs was in the immediate area where Respondent was counselled by Ms. Begley and were in earshot of the conversations. Respondent balked and became vocal about being counselled by Ms. Begley for reporting late. Ms. Begley reported the incident to Dr. Skaggs, Superintendent in charge of employee relations and Ron Blocker, Area Superintendent, who serves as a liaison between the superintendent and individual school principals. During the conference with Ms. Begley on September 19, Respondent voiced displeasure about the working conditions at Rock Lake and expressed a desire to transfer when Ms. Begley reported what she termed to be threatening remarks by Respondent to Dr. Skaggs. On September 19, 1980, Respondent reported for work at approximately 8:50 a.m. and was summoned for a conference with Ms. Begley and Ron Blocker. During the conference, Respondent expressed disagreement or displeasure regarding the atmosphere in which he was being questioned and indicated that he preferred to leave. Respondent was warned of the consequences that might flow from his acts and conduct which could include either disciplinary action by way of a suspension or a failure to be reappointed for another term should he not heed the advice and warnings given him by his Principal, Ms. Begley. 2/ On September 22, 1980, Respondent reported for duty at approximately 8:14 a.m. Respondent did not call to advise Ms. Begley or the other designated official. Ms. Begley spoke to Respondent about his reporting tardy at approximately 2:00 p.m. on September 22, 1980. Present during the conference were Respondent, Ms. Begley and Ron Blocker. Respondent was invited to offer and explanation or statement with reference to his continued pattern of reporting for duty late, however, he refused to make any verbal response. Ms. Begley reduced the oral reprimand to writing and delivered it to Respondent who failed to accept or verify that he was issued a reprimand. On September 23, 1980, Respondent took sick leave and, therefore, did not report for work at Rock Lake. On that same day, however, Ms. Begley observed respondent at the football field at Jones High School between the hours of 4:00 to 5:00 p.m. working with a small group of football players. On the following day, September 24, 1980, Respondent reported for work at approximately 8:07 a.m. Ms. Begley summoned Respondent to a conference, explaining to him at the outset of the possible consequences that might result from the conference. Given the gravity of the possible consequences, Ms. Begley inquired if Respondent cared to bring a witness or other representatives to be present with him during the conference. During the conference, Ms. Begley advised Respondent that she regreted having to give him a written reprimand but that his acts and conduct gave her no alternative. A copy of a reprimand was then given Respondent which he refused to sign acknowledging acceptance (Petitioner's Exhibit No. 7). The parties' Collective Bargaining Agreement requires that written reprimands respecting lateness or failure to report for work be documented by a letter to that effect (Petitioner's exhibits Nos. 8 and 9). Ms. Begley, then, during the conference, asked Respondent if she could be of any further assistance to him, whereupon, Respondent in a hostile manner advised that he did not need or want any assistance and began pointing his finger at Ms. Begley telling her to "leave him alone." Respondent was told by Ms. Begley that that kind of conduct (vocal and belligerent outbursts) could result in disciplinary action to him. Ms. Begley inquired of Respondent what type leave he took on September 23, 1980, whereupon, Respondent advised that he went to see a doctor. Ms. Begley then asked Respondent to provide her with a doctor's statement to document that claim. Respondent never provided Ms. Begley with a medical excuse for his absence as requested. Ms. Begley considered that Respondent's demeanor and mannerism during the conference of September 24, 1980, constituted a threat based on the tone of his voice and the message, i.e., "quit messing with me. Stop bothering me--I'll do more than threaten you" (when Ms. Begley asked Respondent if he was threatening her). She also considered that Respondent's failure to signify acceptance of the reprimand constituted a compromise of her authority. (See Petitioner's Exhibit No. 8, pages 22, 23). Respondent later discussed the decision to discipline Respondent and ultimately decided to recommend his dismissal to Superintendent Skaggs and Area Superintendent Blocker during the evening of September 25, 1980. The possibility of a transfer was considered by Ms. Begley but rejected inasmuch as she was of the opinion that a transfer would not serve any useful purpose in correcting the problems evidenced by Respondent's erratic work habits. Ms. Begley considered that her attempt to reprimand Respondent was ineffective and incomplete based on his refusal to sign an acknowledgement of receipt of the reprimand plus the combination of the insubordinate attitude displayed by him in the presence of his peers, his neglect of duty and tardiness in reporting for work, when combined, warranted a recommendation to the Superintendent that Respondent be dismissed as opposed to a transfer or some other lesser form of reprimand or discipline. Ron Blocker, the area administrator and liaison between the Superintendent and the Principal were summoned to Rock Lake Elementary School to assist Ms. Begley in what was once thought to be a possible teacher resignation. During the conference on September 24, 1980, Administrator Blocker advised Respondent that his failure to sign for receipt of a written reprimand could have grave disciplinary consequences in view of the gravity of the charges and Respondent's hostile conduct as manifested throughout the conference. Administrator Blocker recalled the forceful tone used by Respondent in telling Ms. Begley that he was "doing more than threatening her." Administrator Blocker also recalled Respondent's refusal to advise Begley of the reason for his absence the day prior to the conference indicating instead that she would know at the end of the work day. During the conference, Administrator Blocker recalled that he twice cautioned Respondent that his (Respondent's) refusal to follow an administrative directive may be interpreted as "gross insubordination" which could lead to possible termination or failure to be reappointed (as a teacher) the following school year. Calvin Perry is Director of Drivers Education and is the head football coach at Jones High School. As head football coach, Coach Perry is familiar with the duties of Respondent, a paid assistant coach assigned to coach the defensive team at Jones High School. Coach Perry confirmed that Respondent was present at the September 12, 1980, game in Tampa indicating that Respondent was present during the pre-warm ups and was present throughout the entire game. Coach Perry credibly testified that Respondent was present for football practice on September 23, 1980, having reported at the start of practice at approximately 3:00 p.m. and remained throughout the practice session which lasted until approxiately 5:15 p.m. However, Coach Perry also acknowledged that Respondent indicated that Respondent was ill at the game in Tampa. James L. Schott, Petitioner's Superintendent was shown copies of the letters sent to Respondent bearing the dates September 26, and October 4, 1980, respecting his suspension of Respondent without pay. Superintendent Schott explained that a conference was called to hear the nature of the charges; to hear both sides; to evaluate the evidence and determine the nature of, if any, recommended penalty he would make to the School Board, prior to making any recommendation based on the subject charges. Superintendent Schott recalled that while Respondent explained that he was ill on September 12, 1980, he was able to attend a football game in Tampa although he arrived during halftime because he was not feeling well and was uncertain as to whether he would attend the game at all. Respondent maintained his "story" to Superintendent Schott about attending the Tampa game during halftime. When Respondent advised Superintendent Schott that he also took sick leave on September 23, 1980, Superintendent Schott reminded Respondent of the similar situation by him on September 12, and, therefore, asked that he bring any documentary evidence of illness that he had so that it could be considered prior to his making any decision on the pending charges against him. Therefore, Superintendent Schott counselled Respondent regarding his failure to follow what he considered to have been lawful and reasonable requests regarding his attendance and timely reporting to work. During the Superintendent's conference with Respondent on September 26, 1980, he determined that Respondent was late approximately 50 minutes on September 19; approximately 14 minutes on September 20th and several minutes late on September 21 and 22. On September 23, respondent was absent for work claiming sick leave. According to Superintendent Schott, Respondent acknowledged that he might have made a threat to Ms. Begley during the conference on September 24, 1980. Superintendent Schott was able to independently determine from an investigation of the charges that Respondent had offered false information regarding his attendance to the football game in Tampa on September 12, 1980, inasmuch as other credible evidence indicated Respondent's presence at that game throughout its entirety. After considerable deliberation, Superintendent Schott determined that termination was the only appropriate remedy that he should recommend to the full School Board to discipline Respondent. In making this decision, Superintendent Schott reflected on the facts that Respondent had obviously been terminated for failure to report to work as assigned and that to transfer Respondent would merely pass the problem to another Administrator to grapple with. Superintendent Schott, after much consideration, made the decision to recommend Respondent's termination without animosity and with much sensitivity to the problem based on the rapport that Respondent appeared to have with the youth and his peers at Rock Lake Elementary School. Superintendent Schott offered that teaching was more by example than by class room actions and that the responsibility of a teacher included getting to work promptly and was more than the usual duties expected once a teacher gets to class such as adding columns, deciphering words, reading etc. RESPONDENT'S DEFENSE Respondent is a 1975 graduate of South Carolina State College and as stated, has been employed as a sixth grade teacher at Rock lake since the 1979- 80 school year. While so employed, Respondent has been involved in several school related activities outside his normal teaching duties, including Chairman of the Student Council; contact or liaison for Career Education; Chairman of the Safety Patrol; Scout leader and CTA representative. 3/ Respondent admits to not returning for duty on August 29, 1980, as charged. However, he exclaimed that he encountered car trouble enroute to his mother's home for lunch and consequently had to walk a distance of approximately two miles. Respondent also reported late for duty on September 2, due to transportation problems and did not arrive until approximately 8:45 a.m. Respondent also left school on September 12, 1990, at approximately 12:50 p.m. due to illness. Respondent admitted that he attended the game in Tampa on the evening of September 12, 1980. Respondent explains that this was possible because his health improved from the nauseated condition that he had suffered earlier during the day. Respondent rode to the game in Tampa with scouting coaches Smith and Robertson and arrived at the stadium in time for program warm-ups. 4/ Respondent also admitted reporting for work late on September 19 and 22, 1980. Respondent refused to sign a statement acknowledging acceptance of the written reprimand by Ms. Begley on September 24, 1980, based on his claimed "lack of trust" for Ms. Begley. In this regard, however, Respondent admits that Ms. Begley explained to him that signing the statement attached to the reprimand in no way signified agreement with the contents of the reprimand. Respondent claimed to have felt pressured to tell the Superintendent that he left Orlando at approximately 7:00 p.m. on the evening of September 12, 1980, and arrived at the game at halftime but that there was no willful attempt by him to misstate or otherwise misrepresent the facts to Superintendent Schott. The facts do not evidence a basis for Respondent's feeling. In this regard, Respondent admitted that he arrived at the game on September 12, 1980, before it started and remained for the duration of the game. Respondent did not verbally respond to inquiries by Ms. Begley during the conference with Ms. Begley and Area Superintendent Blocker because he considered Ms Begley's inquiry to be a form of harassment and an attempt by her to treat him as a "child." Finally, Respondent considered that by telling Ms. Begley that he was initially experiencing transportation problems excused his reporting requirements when he subsequently reported for work late.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That Respondent be dismissed as an instructional employee of the Orange County School System. RECOMMENDED this 17th day of February, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether Respondent violated Section 231.3605(2)(c), Florida Statutes (2001), by engaging in alleged harassment, inappropriate interactions with colleagues, or misconduct. (All chapter and section references are to Florida Statutes (2001) unless otherwise stated).
Findings Of Fact On March 13, 2000, the School Board employed Respondent as a Plant Operator at Seminole High School. The School Board transferred Respondent to Tarpon Springs High School on May 22, 2000. On August 2, 2000, Respondent earned a satisfactory evaluation from his supervisor. The evaluation stated that he is a "hard worker," a "good team worker," and "he works well with others." On February 15, 2001, Respondent earned a Better Than Satisfactory evaluation from his supervisor. The evaluation stated that Respondent is a "good team worker" and is "always willing to help others." On September 17, 2001, the School Board promoted Respondent to Night Foreman at Cypress Woods Elementary School (Cypress Woods). The two individuals who had previously served as Night Foremen were Barbara Moore (Moore) and Kevin Miller (Miller). At Cypress Woods, Sharon Sisco (Sisco) was the Principal, Marilyn Cromwell (Cromwell) was the Assistant Principal, and Candace Faull (Faull) was the Head Plant Operator. As Head Plant Operator, Faull supervised Respondent as well as Moore and Miller. Each Night Foreman had "poor communication problems" with Faull. Between the fall of 2000 and the spring of 2002, Respondent, Moore, and Miller each supervised individual Plant Operators at Cypress Woods, including Alice Mertz (Mertz). Mertz had problems with taking instructions from each Night Foreman and with taking complaints "over their head[s]" directly to Faull. Faull attempted to "set up" both Miller and Moore for disciplinary action by the School Board. During the fall of 2000, the School Board received numerous complaints from Miller and Moore about the abuse they suffered at Cypress Woods. On October 10, 2000, Sisco issued specific directives to Faull, instructing her "not to make or engage in negative conversation [with] . . . the crew (or other staff) regarding the Night Foreman." On March 14, 2001, Sisco reprimanded Faull and again counseled her "not to make or engage in negative conversation made by the night crew (or other staff) about the night foreman." On March 20, 2001, Cromwell instituted a Success Plan. The Plan instructed the Plant Operations crew to "refrain from gossip and negative comments about each other." The Plan required the Plant Operations crew to maintain a Communications Log. During the spring of 2001, Cromwell monitored the behavior of the Plant Operations staff through regular meetings. The Plant Operations crew continued its historical behavior after the School Board promoted Respondent to Night Foreman at Cypress Woods in the fall of 2001. On February 1, 2002, Respondent earned a Better Than Satisfactory evaluation from Sisco. The evaluation stated that Respondent is a "great team worker" who "gets along with staff." On February 28, 2002, Respondent touched Mertz on her buttocks in the break room at Cypress Woods in the presence of at least two other people in the room. The physical contact occurred when Mertz walked past Respondent on her way out of the break room. Respondent admits that his hand made contact with the buttocks of Mertz. However, Respondent claims that the contact was incidental, not intentional, not inappropriate, and did not satisfy the definition of sexual harassment. Mertz did not confront Respondent but left the room. However, Mertz later filed a sexual harassment complaint with her employer. Campus police investigated the matter on March 1, 2002. The investigation included statements from Mertz, Respondent, and Mr. Todd Hayes (Hayes), one of the individuals who was present in the break room at the time of the incident. All three testified at the administrative hearing and provided written statements during the investigation. Mertz and Respondent also provided deposition testimony during pre- hearing discovery. Respondent also provided an additional statement on March 5, 2002, during an interview with Michael Bissette (Bissette), Administrator of the School Board's Office of Professional Standards (OPS). On March 18, 2002, Bissette determined that Respondent had committed harassment, inappropriate interaction, and misconduct in violation of School Board Policy 8.25(1)(m), (p), and (v), respectively. School Board Policy 8.25(1)(m), (p), and (v) authorizes disciplinary action for each offense that ranges from a caution to dismissal. Bissette recommended to the Superintendent of the School Board that the School Board dismiss Respondent from his employment. By letter dated March 18, 2002, the Superintendent notified Respondent that Respondent was suspended with pay from March 13, 2002, until the next meeting of the School Board on April 16, 2002. If the School Board were to adopt the recommendation of dismissal, the effective date of dismissal would be April 17, 2002. Respondent requested an administrative hearing, and the School Board suspended Respondent without pay on April 17, 2002, pending the outcome of the administrative hearing. Some inconsistencies exist in the accounts provided by Mertz. For example, Mertz claims in her testimony that the incident occurred "around 2:30 p.m." The investigation report by the campus police shows that Mertz claimed the incident occurred around 3:00 or 3:30 p.m. Other inconsistencies exist between the accounts by Mertz and Hayes. For example, Mertz testified that five people were in the break room at the time of the incident and that she did not confront Respondent or say anything to Respondent. Hayes recalls that only four people were in the room and that Mertz did turn and say something to Respondent such as, "Oh stop it." Inconsistencies regarding the time of the incident, the number of people in the break room, and whether Mertz said anything to Respondent at the time are not dispositive of the material issues in this case. The material issues are whether the physical contact by Respondent was intentional, sexual, and offensive, whether it was inappropriate, and whether it constituted misconduct within the meaning of School Board Policy 8.25(1)(m), (p), and (v), respectively. Respondent claims that he touched Mertz accidentally while he was putting his keys into a pocket at the particular time that Mertz walked in front of Respondent. Mertz walked between Respondent and Hayes in a manner that prevented Hayes from observing the actual contact by Respondent. However, Hayes did observe Respondent's movements up to the time of the actual contact. When Respondent was approximately a foot away from Mertz, Respondent moved his left hand from his side in an upward direction with his palm up and fingers extended to a point within an inch or so of the right buttock of Mertz. Respondent's arm was always extended and did not move in a sideways direction that would have occurred if Respondent had been putting keys into his pocket or reaching for keys in his pocket or on his belt. Respondent had a smirk on his face and laughed. The testimony of Hayes at the administrative hearing concerning Respondent's hand and arm movements was consistent with the accounts by Hayes in two written statements provided during the investigation. Mertz felt Respondent grab her right buttock. She felt Respondent's hand tighten on her buttocks. Mertz did not feel Respondent inadvertently touch her. The physical contact Mertz felt on her buttocks was consistent with the observations by Hayes. The testimony of Mertz at the administrative hearing concerning the physical contact is consistent with accounts by Mertz in three written statements provided during the investigation and in her pre-hearing deposition. Respondent's testimony concerning his hand movements in the break room does not possess the consistency present in the accounts by Mertz and Hayes. When asked on direct examination what happened, Respondent testified: I was walking towards the cabinet to get the flags after we'd had a meeting, to leave; she walked by me -- I -- walked behind her. I had my keys clipped to my right side of my belt and they were flopping against my leg. I wasn't going to need my keys so I started to reach over with my left hand to open my pocket because I had my keys in my right hand to put them in, because my pants were tight and there was a top pocket to put them in and as my hand came up and around that's when I hit her, I brushed against her. Transcript (TR) at 284. On cross-examination, counsel for Petitioner asked questions that provided Respondent with an opportunity to reconcile his testimony with ostensibly divergent accounts during the investigation. Q. The day after the incident you wrote a statement for the police officer, didn't you? A. Yes, I did. Q. And in the statement you said Ms. Mertz asked you to grab her can, didn't you? * * * A. Yes, this is what I wrote but I misquoted it. She said that she was going to grab her can. Q. But you wrote in the statement that Alice said, grab my can? Is that what you wrote? A. That's what I wrote but that "my" is her, not me. * * * Q. Let me ask you . . . Did you write in your statement, "and with my left hand I whacked at her to say, hey"? A. Yes. But I was using that as a description on the type of motion it was. It was like a, you know, a hey, type of motion that I came across. TR at 285-286. In Respondent's initial written statement to campus police, Respondent wrote that he whacked at Mertz with his "open" left hand as if to say hey but did not know where contact was made. In a second written statement to campus police, Respondent wrote that he whacked at Mertz with the "back" of his left hand. In an interview with Sisco, Respondent claimed that he and Mertz were just joking. During direct examination, Respondent did not testify that he whacked at Mertz as if to say "hey." Rather, Respondent testified that his left hand inadvertently came in contact with Mertz as a result of Respondent reaching for his keys. The account provided by Respondent during direct examination at the hearing is consistent only with Respondent's testimony in his pre-hearing deposition. The statements given during the investigation are closer in time to the actual event. The actions of Hayes and Mertz immediately following the incident are consistent with their testimony that Respondent intentionally grabbed the buttocks of Mertz in a sexual manner. Hayes asked another individual in the break room if she had observed the incident. He later reported the incident to Faull before speaking to Mertz. Mertz was initially shocked and left the break room; she later reported the incident to her employer. The physical contact by Respondent created an offensive environment for Mertz. Mertz was initially completely in shock. She then became angry and eventually became so angry she "wanted to strangle" Respondent. Mertz cried and was very upset when she completed a written statement for Sisco. She did not tell her husband immediately because she did not want to upset him. Respondent's physical contact with Mertz constituted sexual harassment within the meaning of School Board Policies 8.24 and 8.241. The physical contact was "unwanted sexual attention," "unwanted physical contact of a sexual nature," and "physical contact" that had the purpose of creating an "offensive environment" within the meaning of School Board Policies 8.24(2)(a), (2)(b)4, and 8.241(2)(a)1, respectively. Respondent's physical contact with Mertz violated the prohibitions in School Board Policy 8.25(1)(m), (p), and (v). The physical contact was harassment that created an offensive environment in violation of School Board Policy 8.25(1)(m). It was an inappropriate interaction that violated Policy 8.25(1)(p). It was misconduct that violated Policy 8.25(1)(v). Respondent has no prior disciplinary history. The physical contact engaged in by Respondent is his first offense and is a single isolated violation of applicable School Board policy. Respondent has never asked Mertz on a date, never seen her outside work, never made any sexual comments either to her or about her, and has never touched her when they were working alone together on the night shift.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the three charged offenses, suspending Respondent without pay from April 17 through September 17, 2002, and reinstating Respondent to his former position on September 18, 2002. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY 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 September, 2002. COPIES FURNISHED: Jacqueline Spoto Bircher, Esquire Pinellas County School Board 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Ted E. Karatinos, Esquire Seeley & Karatinos, P.A. 3924 Central Avenue St. Petersburg, Florida 33711 Dr. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770-3536 Honorable Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether just cause exists to impose discipline on Respondent’s employment; and, if so, what is the appropriate discipline.
Findings Of Fact At all times material to this case, Respondent was a School Board employee. Respondent was employed as a custodian at Choctawhatchee High School (“Choctaw”) when he was terminated in 2017. As a custodial employee, Respondent was subject to the Collective Bargaining Agreement entered into between the School Board and the Okaloosa County Education Association. When he was terminated, Respondent had been employed by the School Board for approximately 24 to 26 years. Respondent was employed as a custodian at Choctaw beginning in 2015. Prior to that, Respondent was employed by the School Board as lead custodian at Choice School (“Choice”). Before that, at least five years before his employment at Choctaw, Respondent was employed by the School Board as a pre-K liaison at Edwins Elementary (“Edwins”). In addition, Respondent had been employed by the School Board over the years as a bus driver and in other custodial positions. The School Board's termination of Respondent's employment was based largely upon a formal equity complaint1/ (“Formal Complaint”) submitted on October 5, 2017, by Mrs. Williams, a volunteer at Choctaw, alleging harassment by Respondent with an attached email addressing her concerns regarding contacts by Respondent and a history of alleged harassment by Respondent. The email attached to Mrs. Williams' Formal Complaint is dated October 3, 2017, and states: Harassment has gone back to Edwins Elementary nearly 8 years ago. I was a parent as well as a PTO [parent teacher organization] Member/President for a few years at Edwins Elementary. There were constant unprofessional/vulgar comments made by Steve Hall in reference to my body and parts of my body, the way my clothing may fit certain areas of my body or his requesting to take photos of me. I think on occasion he may have taken some photos because as I would turn around and his phone was lifted in my direction to do so. On countless occasions employees would stand with me to hinder him hanging around and commenting. This frequently occurred during his employment at Edwins Elementary School. On one occasion my young high school age daughter, at the time, was at Edwins Elementary School with me during school hours. I was introducing my daughter to some people and Steve walked up so not to be rude I introduced her to him as well. Steve Hall's comment was not "hi" or "how are you?" it was "move over mom . . .!" As her mother I was disgusted! I told Mr. Farley but my daughter did not want to get into it or write a statement. I respected her wishes and just limited her presence on that campus. This entire time I have also been volunteering at Choctawhatchee High School. I found out that he was moved from Edwins to another school. I am still a full-time volunteer at CHS [Choctaw] and one day Steve Hall showed up at Choctaw's front desk. Knowing what actions I have seen from him I was extremely concerned finding out Steve is now an employee at Choctawhatchee High School. Approaching me at the front desk at Choctaw began to be a habit for Steve Hall. I called and met with Mr. Farley to work out a solution hoping this could be resolved professionally. The rule was Steve was not to be anywhere within the front office area to include the mail room. I have had to call Mr. Farley on multiple occasions because he continued to approach me in the front office. Currently he continues to try to communicate inappropriately with me at the football games or on campus, school events. Steve sits in the stands eating concession food and watching the football games for the most of the game. Steve tries to initiate conversation through my son who is special needs and only understands he is suppose to be nice to everyone. Not wanting/needing to explain this situation to my son. [sic] My son responds when spoken to by Steve because Steve is an adult and my son knows I require respect from him no matter who speaks to him. This makes football games and school events difficult every season with this year being no different! At the CHS vs. Tate game I was thankful there was a fence between the sections we were sitting in, so that he could not get closer without going all the way down and back up. I just turned away with no response. It is frustrating feeling like I have to hide to avoid Steve! This school year Steve has come to the front office area 3 times within the first month and a half of school. Each time I reported it and Steve was told to stay away from the front office. On one of the occasions I was in the back, in the mail room. Someone came to let me know Steve was up front looking for me. I tried to go out the back of the mailroom door to Mr. Snaith's office to get assistance and Steve walked in to confront me. The confrontation was extremely uncomfortable to say the least. About that time Mr. Snaith walked in and witnessed most of the confrontation escorting me away from Steve and we called Mr. Farley. Again! Steve was talked to about not coming to the front office for any reason. He has Ms. Liz's phone number (his supervisor) if he needs her. He has since come back to the front office again! He was told again not to come to the front office at all for any reason and it was discussed by Mr. Farley he needed to be more aware of his actions and the way they may be perceived. I am also the parent in charge of "Parents for Prior." After this years current situations, Steve was spoken to by Mr. Bill Smith. Steve Hall approached me at the Pryor Middle School football game held at Choctaw stadium. I was trying to work a table at the game, soon after the most recent issue. Steve approached my son first then walked closer to me requesting to speak to me for a "hot minute" in the alley between the touchdown shack and stadium. I'm sure it would be on the stadium cameras as stated in my statement to Bill Smith. I was unable to leave due to my possession of money and tickets. I glared at Steve and he stated I guess I should just keep walking. I nodded "yes"! This is only the most prominent on campus situations. I called Bill Smith and explained I should tell Steve to stay away. I feel we are past this due to this being years in the making. This has already been addressed and discussed with Steve on multiple occasions. Bill Smith stated I needed to send him an email statement and apologized he had not yet gotten with Mr. Chapman, from a week before, because of the hurricane. This was my second statement to Bill Smith this school year as well as one meeting with him. I enjoy volunteering my time at Choctawhatchee High School. Within a few years I'll be a Choctaw parent, unless I am required to move my son to another high school because of this. This is not what I want to do as a parent or volunteer. I do not feel it is fair I may need to remove myself and choose another high school for my son to attend because of an employee's unprofessional/vulgar behavior. Steve Hall repeatedly drives by my home. The latest time that I know of was within a week or so before school started this year 2017-2018. I was on the phone walking out of my home, I looked up and saw Steve sitting out in front of my home rolling down his window motioning me to come talk to him. I turned to return inside to get my husband, who is law enforcement, but Steve drove off in his green avalanche. I do not live on a main road nor have I given him my address. My street is not a road someone would just drive by on. If this continues I will file a restraining order. If there are any questions or concerns please do not hesitate to contact me. Mrs. Williams’ Formal Complaint was assigned to Gary M. Marsh, investigator, Escambia County School District, on October 11, 2017, for investigation. Mr. Marsh conducted his investigation and submitted his investigative report dated October 31, 2017, to the School Board's superintendent. The investigative report was hand-delivered by Mr. Marsh and received by the superintendent on November 3, 2017. In a letter dated November 14, 2017, the School Board's assistant superintendent of human and resources advised Respondent that she was recommending to the superintendent that Respondent be suspended with pay, effective immediately, and further that his employment with Petitioner be terminated at the December 11, 2017, School Board meeting. The letter states: Mr. Hall, An investigation has now been completed regarding the Formal Equity Complaint made against you on/or about October 5, 2017. A copy of the investigative report is attached for your information and review. This is the second formal investigation of an equity complaint against you since 2014. Based upon a culmination or multiple instances of harassment, misconduct in the workplace or gross insubordination, over the course of the last three years, I am recommending that the Superintendent suspend you with pay effective immediately and further that your employment with the School District be terminated at the December 11, 2017, School Board meeting. The charges against you are based upon the finding of illicit material in your desk at Edwins Elementary School and repeated inappropriate comments leading to coworkers feeling harassed which led to your transfer in 2014 from Edwins Elementary School to Okaloosa Technical College (OTC); in late 2014, during your time at OTC, allegations of unwanted sexual behavior constituting sexual harassment on your part as confirmed in a formal investigation which led to your demotion and transfer from a lead custodian to a custodian at Choctaw High School (CHS). Additionally, while at CHS, new allegations of harassment have been made against you. Due to these allegations you were directed on multiple occasions by both your supervisor and a district administrator not to enter the CHS front office or mail room. As a result of a recent investigation it has been determined that you have continued to enter the school front office area in direct insubordination of your supervisor and a district administrator. Further, after review of the investigative report there is sufficient evidence to believe that harassment of a school volunteer did occur. Your conduct is considered to be gross insubordination, misconduct in office and harassment in direct violation of the following School Board policies: School Board Policy 07-03 Employment Conditions for Education Support Personnel School Board Policy 06-27 Equity Policy: Harassment on the Basis of Race, Color, National or Ethnic Origin, Sex, Age, Religious Beliefs, Marital Status, Pregnancy or Disabilty In accordance with both School Board policy 06-28 E(2) and Section K(a) of the OCESPA Master Contract you may file a written appeal to the Superintendent within ten (10) calendar days of receipt of the enclosed investigative report and this recommendation. In a letter dated November 29, 2017, the assistant superintendent of human resources requested that the superintendent recommend to the School Board that Respondent be terminated for gross insubordination, misconduct, and harassment. The Superintendent notified Respondent in a letter dated November 29, 2017, that she would recommend his termination from employment at the December 11, 2017, School Board meeting for gross insubordination, misconduct, and harassment. At its December 11, 2017, meeting, the School Board approved the superintendent’s recommendation, and Respondent was terminated from his custodian position. Neither Superintendent Mary Beth Jackson nor Assistant Superintendent Stacie Smith testified at the hearing. According to the November 14, 2017, letter from the assistant superintendent, quoted above, the recommendation for Respondent's termination is "[b]ased upon a culmination of multiple instances of harassment, misconduct in the workplace or gross insubordination, over the course of the last three years." [emphasis added]. The three allegations that form the basis of the recommended discipline against Respondent are analyzed below under headings derived from the November 14, 2017, letter as follows: 1) "finding of illicit material in your desk at Edwins Elementary School and repeated inappropriate comments leading to coworkers feeling harassed which led to your transfer in 2014 from Edwins Elementary School to Okaloosa Technical College (OTC)"; 2) "in late 2014, during your time at OTC, allegations of unwanted sexual behavior constituting sexual harassment on your part as confirmed in a formal investigation which led to your demotion and transfer from a lead custodian to a custodian at Choctaw High School"; and 3) "it has been determined that you have continued to enter the school front office area in direct insubordination of your supervisor and a district administrator. Further, after review of the investigative report there is sufficient evidence to believe that harassment of a school volunteer did occur." ILLICIT MATERIAL IN RESPONDENT'S DESK AT EDWINS AND REPEATED INAPPROPRIATE COMMENTS TO COWORKERS LEADING TO A TRANSFER At the hearing, it was revealed that Respondent's employment at Edwins predated his employment at Choice. Respondent was employed at Choice during the 2013-2014 school year.2/ Therefore, the alleged illicit material and inappropriate comments that allegedly occurred at Edwins could not have taken place "over the course of the last three years," as alleged in the November 14, 2017, letter. Notwithstanding the fact that none of the alleged “Edwins events” could have taken place over the past three years as alleged, the School Board presented no testimony or documentary evidence to prove the underlying fact that Respondent had “illicit material” in his desk while employed at Edwins. In fact, there was no testimony at all concerning this alleged prior discipline. Mrs. Williams’ email attached to her Formal Complaint states that the alleged harassment "has gone back to Edwins Elementary nearly 8 years ago." In fact, Mrs. Williams first met Respondent at least seven years before she filed her Formal Complaint against Respondent referenced in this case. When they first met, Respondent worked with the in-school suspension and student training programs at Edwins and her son attended Edwins. Mrs. Williams was a volunteer with the parent-teacher organization. Her duties as a volunteer included fundraising. Mrs. Williams described her initial relationship with Respondent as a casual friendship. Mrs. Williams kept her parent-teacher organization materials in his office and would often call him to gain access to those materials. A self- described “hugger,” while at Edwins, Mrs. Williams used to initiate hugs with Respondent and others. Although not a part of the allegations against Respondent, the evidence shows that, on one occasion, while at Edwins, Respondent asked Ms. Williams “was [she] ever into blacks." Mrs. Williams responded, “No” and that she was married. Respondent asked if she knew anybody who was into blacks because he had a friend who was into “white chicks.” Mrs. Williams told him that she knew a secretary at Choctaw who dated “black guys.” There is no indication that Mrs. Williams considered this conversation with Respondent as offensive or harassment. Mrs. Williams’ email attached to her Formal Complaint alleges that, while at Edwins, Respondent made inappropriate comments to her about her body, parts of her body, the way her clothes fit and asked to photograph parts of her body. Mrs. Williams testified that she was dismayed by his comments but never told Respondent to stop or leave her alone. Regarding Respondent’s alleged request to photograph her, Mrs. Williams testified that he made the request only once; she shook her head "No," but did not verbalize any protests and walked away. Mrs. Williams also alleges that while working at Edwins, Respondent made her aware that he was interested in her by his eye gestures and other nonverbal cues, as well as sometimes saying “whoa” when he walked by her. Respondent denies making gestures or statements indicating that he was sexually interested in Mrs. Williams. There is no indication that Mrs. Williams ever told Respondent to stop his alleged behavior or that she reported the incidents at the time. Mrs. Williams does not recall whether she reported Respondent’s alleged comments or request to photograph her to anyone at the time. Respondent denies the allegations. No witnesses were called to corroborate Mrs. Williams' allegations, and Mrs. Williams testified that she could not “attest” to anyone who could corroborate her allegations. In her testimony, Mrs. Williams explained the reference in her email attached to her Formal Complaint about the occasion at Edwins when Respondent allegedly told her to “move over mom” after she had introduced her daughter. She testified that Respondent’s statement was very offensive and sexual in nature because she believed that Respondent was saying that he liked her but now that he saw her daughter “[he was] going to go after [her] daughter.” Mrs. Williams further testified that she believed that the incident was a reportable offense because her daughter was a minor at the time, but that her daughter did not want to report and she did not file a formal complaint. Mrs. Williams testified that that Respondent had referred to her by nicknames such as “baby,” “baby girl” and “sweetie,” which she found unprofessional and made her feel uncomfortable. While there is evidence that Respondent has used the term “baby girl” in his vernacular, he explained that he used the term as just another way for saying “how you doing.” Respondent explained in his testimony that it was just “[a]nother saying for saying hey, shortie, like they say. So you say, hey, baby girl, how are you doing today?” The context of Mrs. Williams' testimony on this point suggests that Respondent used the nicknames for Mrs. Williams while they were both at Edwins. There is no evidence, however, that Mrs. Williams reported these instances at the time. There is also no evidence that Mrs. Williams ever told Respondent not to call her nicknames, or that she reported Respondent’s use of nicknames. Remarkably, Mrs. Williams’ Formal Complaint does not even mention that Respondent called her by nicknames. Despite the allegations against him, there is no evidence that while at Edwins, or at any other time, Respondent asked Mrs. Williams for a date, out for drinks, suggested that they have sex, touched her inappropriately, talked to her on the phone outside of school, or interfered with Mrs. Williams’ ability to perform her volunteer duties or responsibilities. The allegations against Respondent, while he was at Edwins, do not fall within the “course of the last three years” as alleged in the charging document (the November 14, 2017, letter) and are, therefore, inconsistent with the reasons espoused by the School Board for the discipline sought in this case. Moreover, considering the fact that Mrs. Williams’ allegations against Respondent while he was at Edwins were not timely reported, that her allegations were uncorroborated, drew no protest from Mrs. Williams at the time, and were denied by Respondent, it is found that the evidence is insufficient to show that Respondent harassed Mrs. Williams, sexually or otherwise, while at Edwins. In sum, the evidence presented at the final hearing was insufficient to prove that Respondent made “repeated inappropriate comments,” which led to “coworkers feeling harassed” while he was at Edwins. The evidence also failed to show that Respondent was transferred because of those comments or because illicit material was found in his desk. LATE 2014 ALLEGATIONS OF UNWANTED SEXUAL BEHAVIOR CONSTITUTING SEXUAL HARASSMENT LEADING TO RESPONDENT’S DEMOTION AND TRANSFER FROM LEAD CUSTODIAN TO A CUSTODIAN AT CHOCTAW This allegation, as set forth in the November 1, 2017, letter from the assistant superintendent, refers to allegations of sexual harassment that occurred in 2014 when Respondent was a lead custodian at OTC, which is in the same facility as Choice. In 2014, Respondent began working at Choice as a lead custodian. The allegations arising from Respondent’s time at Choice are not included within Mrs. Williams’ Formal Complaint. The School Board presented no testimony or competent substantial evidence to prove the underlying facts that Respondent committed “unwanted sexual behavior constituting sexual harassment” while at Choice. Respondent testified concerning this alleged prior discipline, acknowledging that he allowed a teacher at Choice to listen to some rap music, that he used the term “baby girl,” and that the School Board considered the use of the term “baby girl” a form of sexual harassment. Respondent denied, however, that he engaged in inappropriate conduct or sexual harassment. Respondent testified that he accepted a transfer as a lead custodian at Choice to a Custodian II position at Choctaw. He further testified that he was advised by the School Board that he would be transferred back to a lead custodian when a position became available. The School Board presented its Exhibit P-8a as evidence of this alleged prior discipline, which was ultimately proffered and “admitted” as a proffered exhibit (Proffer P-8a). Upon reconsideration, while it lacks evidentiary value, Proffer P-8a is received into evidence. Proffer P-8a, entitled “Confidential Inquiry Summary,” is an investigative report purportedly authored by Arden E. Farley, as a contract investigator for the School Board. Proffer P-8a does not prove the underlying facts and does not constitute competent evidence in support of the discipline sought against Respondent in this case. No witnesses were called to prove the underlying discipline related to Respondent’s alleged demotion. Furthermore, Proffer P-8a is hearsay and does not corroborate direct testimony or any other competent evidence. Because Proffer P-8a references Respondent’s alleged use of the term “baby-girl,” the School Board, through counsel, argued that Proffer P-8a is evidence that Respondent was aware that the use of the term “baby-girl,” or similar terms, was improper and could subject him to discipline. This conclusion is contrary to the evidence presented at the hearing. Although Mrs. Williams testified that Mr. Hall used the term during their time at Edwins, Respondent and Mrs. Williams were at Edwins prior to Respondent’s time at Choice. Thus, Proffer P-8a could not have put Respondent on notice that it was inappropriate for him to refer to Mrs. Williams as “baby-girl” while at Edwins. There is otherwise no competent evidence that Respondent referred to Mrs. Williams, or any other complainant, as “baby-girl” or any other nickname while at Choctaw. ALLEGED HARASSMENT OF A SCHOOL VOLUNTEER AND FAILURE TO FOLLOW DIRECTIVES NOT TO ENTER THE SCHOOL FRONT OFFICE AT CHOCTAW Harassment is governed by the School Board’s equity policy. Respondent acknowledged that he received a copy of the then existing Equity Policy in 2009. No evidence was presented as to what the Equity Policy consisted of in 2009. The Equity Policies presented at the final hearing reveal that two of the policies were adopted in 2015 and a third Equity Policy was adopted at the December 11, 2017, School Board meeting; the same School Board meeting where the superintendent’s recommendation to terminate Respondent was considered and approved. The alleged harassment of a school volunteer while at Choctaw appears to include encounters at football games, in the front office, and one time at Mrs. Williams’ home. Football Games The testimony at hearing revealed that Mrs. Williams was complaining about two encounters with Respondent at football games. Respondent’s duties at Choctaw required him to be present at football games. During the first encounter, Mrs. Williams and her son were in the stands watching a Choctaw football game. There is a fence that divides the stands. Respondent was on one side of the fence and he attempted to initiate a conversation with Mrs. Williams and her son. Respondent was saying “hello.” Mrs. Williams ignored Respondent and no conversation was undertaken. The second encounter occurred prior to a Pryor Middle School football game, which was taking place at Choctaw. Mrs. Williams, accompanied by her son, was setting up a parent- teacher organization table, and Respondent approached her and her son and initiated a conversation with her son. Mr. Hall knows Mrs. Williams’ son from his time at Edwins. Towards the end of the brief conversation, Respondent asked Mrs. Williams if he could speak with her for a “hot minute.” Mrs. Williams glared at him and then said “no,” and Respondent went about his way. Respondent presented credible testimony that a “hot minute” is slang for “a second” or “just for a minute.” There was no other evidence concerning the term “hot minute.” Front Office The email attached to Mrs. Williams’ Formal Complaint states that Respondent’s “approaching me at the front desk at Choctaw began to be a habit for Steve Hall.” The email further states that Mr. Hall was in the front office three times during the first month and a half of the 2017-2018 school year. In a separate email, Mrs. Williams documented an “encounter” that occurred on September 1, 2017. She does not indicate that Respondent had any contact with her, just that he was in the front office. In fact, on that occasion, Mrs. Williams turned her back to Respondent and Ms. Gloria Scaife, who was working in the front office, spoke with him. In an email, dated September 7, 2017, Ms. Scaife states that Respondent was in the office and asked her if she had seen Ms. Liz (who is the lead custodian). Respondent credibly explained that, on that occasion, he went to the front office to find his supervisor to obtain access to supplies. A second encounter in the 2017-2018 school year occurred in the mailroom. Mrs. Williams was in the mailroom when Respondent entered the room. Mrs. Williams testified that Respondent “cornered her in mailroom . . . that she couldn’t get around him . . . and that he was upset and very loud.” She further testified that she “could not move without touching [Respondent].” Mrs. Williams’ testimony conflicts with the other accounts of this encounter, which are more credible. Andy Snaith, dean of students for Choctaw, testified that there were other people in the mailroom and that he observed “what appeared to be a conversation with [Respondent] and Mrs. Williams. [Respondent's] back was to me. I believe he was doing the talking . . . .” When asked for more detail, Mr. Snaith stated: Q: And with other people in the mailroom, was there enough room, based on what you saw from Mrs. Williams, to back away from Mr. Hall? A: Yeah. It wasn't that crowded. Q: So there was plenty of room for her to move around? A: Yes. Q: Any idea what they were talking about? A: No. Q: How would Mrs. Williams get out of the mailroom, if she wanted to leave? A: There's two ways, I believe where she was standing, she could have gone to the left or to the right. The left is where the door that leads into the hallway, and then the other one leads to the main office. Consistent with the recollection of Mr. Snaith, Respondent testified that upon being told by Mrs. Sanders that Mrs. Williams was telling others that he was saying things to Mrs. Williams, he went to the office to ask Mrs. Williams if this was true. Respondent further testified: I asked [Mrs. Williams], calm and simple, [Mrs. Williams], have I talked to you, have I seen you? She said, no, I haven't seen you in three, four months. I said, that's all I wanted to know, because Liz is making a comment that I have said something to you and that was not true, and I walked away. It is unclear from the testimony as to exactly when this conversation took place, other than sometime early in the 2017-2018 school year. It is clear, however, that that occasion was the last time that Respondent was in the front office area at Choctaw. In her testimony, Mrs. Williams stated that she was not alleging or asserting that Mr. Hall had committed racial discrimination, nor that he made adverse remarks about her color, age, religious beliefs, ethnic origin, or marital status. And Mrs. Williams does not allege that Respondent made any comments about her body parts, the way her clothing fit, or asked to take photos of her while he was at Choctaw. Rather, those allegations allegedly occurred while Respondent was at Edwins, were unreported for years and could not be corroborated. There is no evidence that Respondent ever told Mrs. Williams to perform any improper act and then threatened her with consequences if she failed to comply. There is also no evidence that Respondent ever had authority to make employment decisions affecting Mrs. Williams. Mrs. Williams’ House Respondent first met Mrs. Williams prior to the time related in any of the allegations, when he went by her house to inquire about some tire rims that her husband had for sale. Mrs. Williams testified that in the summer of 2017, two weeks prior to the start of school, Respondent came by her house and parked at the curb. Her son alerted her that Respondent wanted to talk to her. She testified that she was upset because Respondent was there and she spoke with Respondent while he sat in his car. She could not recall what was discussed, but knows the conversation lasted only a couple of minutes, and that she then turned around and walked away.3/ Mrs. Williams stated that Respondent had been by her home on several different occasions but could not elaborate on any other incidents. Respondent acknowledged that he had gone by Mrs. Williams’ house because he does lawn service and was riding by her house. As he recalled, he noticed her son in the yard and asked him to get Mrs. Williams. Respondent and Mrs. Williams had a brief conversation. At no time during that conversation, or any other conversation, did Mrs. Williams tell Respondent to “stay away,” “leave me alone,” or make any other gesture or comment indicating that Respondent was to avoid her. Further, there is insufficient evidence to show that anyone from the School Board told Respondent to avoid contact with Mrs. Williams. Alleged Failure to Follow Directives Respondent acknowledged that shortly after starting at Choctaw, he had been verbally advised to avoid the front office. Mr. Mims, the School Board’s zone manager for custodial services, was the first person to advise Respondent to stay away from the front office. The Dean of Students Andy Snaith never told Respondent to avoid the front office. Even though told not to go to the front office, Respondent had to go by the front office every day. In that regard, Mr. Mims told Respondent that they could not keep him out of the school. Although Respondent understood that the request that he refrain from going to the front office may have been designed to minimize his contact with Mrs. Williams, there was no evidence or testimony presented by the School Board showing that Respondent was ever specifically told to avoid Mrs. Williams or why he was supposed to avoid the front office. Mr. Mims testified that he told Respondent to avoid the front office twice. He further testified that he was aware of Respondent being in the front office only three times over the course of three school years. When finding out about these situations, instead of having a face-to-face meeting, Mr. Mims would merely call Respondent on the phone. Respondent acknowledged going to the front office only twice in 2017, the first being while looking for Mrs. Sanders and the second being the conversation with Mrs. Williams when she was in the mailroom. There is no evidence of a written directive or other documentation advising Respondent to avoid the front office until a September 18, 2017, meeting between Respondent, Bill Smith, and Andy Mims. At that meeting, which was the first meeting between Mr. Smith and Respondent, Respondent was specifically advised to not go into the front office. Respondent has not been in the front office, nor has Bill Smith received a report that Respondent has been in the front office since their meeting in September 2017. Even though there were two instances where Respondent went to the the front office after speaking with Mr. Mims, Mr. Mims testified that while Respondent worked for him, he “met expectations as an employee.” Mr. Mims further testified that Respondent “did everything I asked him to do.” Mr. Mims statements are consistent with his written evaluations of Mr. Hall’s work performed in May 2017, May 2016, May 2015, and May 2014. The stated purpose of the evaluations is to “support decisions concerning employee discipline, promotion and improvement.” Respondent’s evaluations during the pertinent time period do not support the discipline sought in this case. To the contrary, they conclude that he is a hard worker and that he meets the expectations of his supervisors. Even when he allegedly received prior discipline while at Choice during the 2014-2015 school year, Respondent was not placed on a “success plan” for improvement and, in fact, received a “meets expectations” evaluation. The evaluations written by Respondent’s supervisors conclude that Respondent “Demonstrates a willingness to accept authority and direction; Demonstrates appropriate interactions with staff, clients, students and/or parents; Demonstrates appropriate oral skills when communicating with others; [and] Demonstrates appropriate relations with supervisor and peers.” Recognizing that there were issues at Choctaw unrelated to Mrs. Williams, Respondent requested transfers to another school. These transfer requests began during the 2016-2017 school year and continued during the beginning of the 2017- 2018 school year. Even though there were positions available in the schools where Respondent desired to transfer, his supervisor, Mr. Mims, denied Respondent’s requests for transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Okaloosa County School Board: Dismissing the allegations against Respondent in this case and rescinding any discipline imposed thereby; Reinstating Respondent’s employment with the Okaloosa County School Board as though there was no break in service of his employment; Restoring all salary, benefits, and rights from the date of his last paid workday to the date of his reinstatement, plus interest from the date that any such pay or benefit was withheld, as appropriate under applicable law; less any earnings or benefits that Respondent received during the time between his termination and the time of his reinstatement. DONE AND ENTERED this 9th day of November, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 9th day of November, 2018.
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 Respondent pushed and kicked a student as Petitioner alleges, and what disciplinary action, if any, should be taken against her educator certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss the Administrative Complaint against Respondent. DONE AND ENTERED this 5th day of March, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 5th day of March, 2012.
The Issue Whether there is just cause to suspend Respondent, George Young (Respondent), as alleged in the letter of the superintendent of schools dated June 9, 2008.
Findings Of Fact Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Indian River County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff. At all times material to the allegations of this case, Respondent, George Young, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach at Sebastian River High School and served as head baseball coach for the varsity team. For purposes of this case, all acts or omissions complained of were in connection with Respondent’s responsibilities as a baseball coach. By way of background, the allegations of this case evolved from an underlying incident that must be disclosed in order to put the proper perspective on Respondent’s role and responsibility in connection with the allegations. During March of 2008, Respondent scheduled his team to participate in a baseball tournament held in Broward County, Florida. The tournament location and schedule made it convenient for the team to remain near the site for one night of the tournament. This was not the first over-night venture for Respondent and the teams he coached. Prior to tournaments it was Respondent’s policy to instruct the team that they were representatives of the school. Respondent encouraged the students to refrain from horseplay, roughhousing, or misbehavior that could discredit them or the school. In short, the team members were to conduct themselves as gentlemen. Nevertheless, some of the students did engage in poor conduct. More specifically, several of the players began to wrestle in one of the hotel rooms. Some unspecified number of the players turned on their teammate, H.C. Without Respondent’s knowledge or consent, the players wrestled H.C. (the victim) to a bed, pulled down his pants, and placed a plastic soda bottle at or near his rectum. It is unknown whether the bottle actually penetrated the victim, but the fact that an assault was perpetrated by the student players is certain. After the assault, the victim escaped the room and fled to another hotel room. Several team players observed the victim to be quite upset. Moreover, at least one player believed that the student was so upset he was crying. Word spread among some of the players that something bad had happened to the victim. The details of the assault were not general knowledge. At least two adults who accompanied the team on the trip were also made aware that something untoward had occurred to the victim. At least one of the parents told Respondent that night that something had occurred. No specifics of the incident were disclosed to Respondent. He knew, however, that wrestling had occurred and that someone was upset. Respondent made no effort to personally discover what had happened to the victim that night. Presumably, he chalked it up as adolescent roughhousing. The next morning Respondent called a team meeting before the team left the hotel. It was his custom to speak to the team before checkout but on this morning he had the additional task of attempting to find out what had occurred the night before. Not surprisingly, no one disclosed the full details of the assault. From the hotel the team went on to a meal and played in the tournament. Respondent did not pursue further inquiry into the assault. Respondent did not question anyone individually regarding the events. Approximately one week later the victim's parents heard about the assault. A parent telephoned them to share information that something had occurred on the tournament trip. They were stunned and surprised to learn of the incident. They questioned their sons (both of whom were on the tournament trip) and decided something needed to be done to punish the students who committed the assault. To that end, they went to Respondent's home and asked him about the incident. Respondent was surprised to learn of the details of the assault and represented that something would be done to appropriately discipline the perpetrators of the deed. The weight of the credible evidence supports the finding that on the night of the parents' visit to Respondent's home, Respondent knew that the victim had been wrestled to the bed, had had his pants pulled down exposing his buttocks, and that a bottle may have been involved at or near the student's rectum. The bottle portion of the assault was stated as a possibility as the victim's parents at that time had not confirmed whether or not the bottle was used or merely threatened. Nevertheless, when Respondent reported the incident the next day to the athletic director, the possibility of a bottle being involved in the assault was omitted. Since Respondent did not disclose the full details of the assault, including the fact that a bottle may have been involved, to the athletic director, the punishment initially to be administered to the student perpetrators did not satisfy the victim's parents when they learned what would be imposed. Instead, they demanded that more harsh consequences befall the students who were involved in the assault. Their report of the incident conflicted with Respondent's story to the athletic director. It soon became clear that while the parents may have been willing to spare their son the embarrassment of the bottle portion of the story when they believed the penalty imposed against his attackers would be great, they were not going to let the perpetrators skate by on the penalty initially chosen. Thus Respondent's willingness to leave out the bottle portion of the assault became critical to the matter. In fact, the omission of the bottle portion of the incident became the key allegation against Respondent. The superintendent's letter setting forth the allegation against Respondent stated, in part: On April 8, 2008, you told Athletic Director, Michael Stutzke, that an incident occurred during an out of town baseball tournament that involved wrestling with someone's pants being pulled down. When you made that statement you knew that was not the complete story, because the night before, you met with a student's parents who told you their son's (the victim) pants were taken down and a bottle put near his rectum during the course of this incident. This is the same incident you described to Mr. Stutzke as mere wrestling and someone's pants pulled down. The credible weight of the evidence supports the finding that Respondent knew he had not given Mr. Stutzke the complete story of the incident. Although Respondent at that time may not have known for a fact that a bottle was used in the commission of the assault, he knew that the rumor of the bottle's use was in question. An investigation of the matter would have proved or disproved the bottle portion of the story. Respondent did not, however, reveal that portion of the allegations to school authorities. Although Respondent may have entertained the misguided notion that he was protecting the victim from embarrassment by not disclosing the full details of the assault, his failure to make school officials aware of the incident and the potential allegation of the bottle demonstrates a failure to fully and honestly conduct himself professionally. Respondent has enjoyed a long, successful, and popular run as a baseball coach in the district. At the end of the day, however, responsibility for the safety and well-being of his team rested with him. That job is unrelated to the success of the team or their desire to play in tournaments. Moreover, school authorities must be able to rely on a coach's veracity to completely and accurately report any incident that may occur during a school-sanctioned event. The stipulated facts of the parties provided: On March 31, 2008, George Young was the head coach for the Sebastian River High School Varsity Baseball team. On March 31, 2008, the Sebastian River High School Varsity Baseball team attended a baseball game in Plantation, Florida. Kevin Browning, Director of Human Resources, investigated allegations of an incident that occurred on March 31, 2008 involving the baseball team. Browning released his Report and Recommendation on June 26, 2008. Young was given a three day suspension, which is the subject of the appeal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a Final Order sustaining the suspension of Respondent and denying his claim for salary reimbursement. DONE AND ENTERED this 29th day of July, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of July, 2009. COPIES FURNISHED: Mark Wilensky, Esquire Dubiner & Wilensky, P.A. 515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401-4349 Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Harry J. La Cava, Ed.D Superintendent Indian River County School Board 1900 25th Street Vero Beach, Florida 32960-3150
The Issue Whether Petitioner has cause to terminate Respondent's employment as a school custodian.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by Petitioner as a school custodian. In the fall of 1994, the Respondent was arrested and charged with the offense of theft. The property in question was a Green Machine weed eater that was owned by the Petitioner. Petitioner assigned John Bell, an investigator employed by the Petitioner's police department, to investigate the alleged theft. Respondent admitted to Mr. Bell that he had possession of the piece of equipment, he knew that it was valued at approximately $300.00, but he asserted that he bought the machine for $100.00 cash from an unknown person Respondent said was a school board employee. Respondent did not have a receipt for the purchase or any other evidence to substantiate his explanation as to how he came into possession of the stolen property. In December 1994, Respondent was found guilty of theft following a bench trial in the criminal proceeding. Adjudication of guilt was withheld and he was fined $105.00 in court costs. He was ordered to pay restitution to the School Board in the amount of $160.82 for the cost of its investigation. The School Board has the authority to terminate Respondent's employment for cause. The School Board's Policy 3.27 pertains to suspension and dismissal of employees. If the Superintendent finds probable cause to recommend to the School Board that a member of the non-instructional staff be suspended without pay and subsequently dismissed, the Superintendent is required to notify the employee in writing. The policy also contains provisions for the information that must be included in the notice to the employee. By letter dated February 9, 1995, the Superintendent advised Respondent that cause existed to terminate his employment on the grounds of theft of school property and misconduct in office. On February 21, 1995, the School Board, based on the Superintendent's recommendation, suspended Respondent's employment without pay pending this termination proceeding. The Superintendent and the School Board followed the pertinent policies in suspending the Respondent's employment without pay pending this dismissal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school custodian. DONE AND ENTERED this 21st day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1995. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Mr. Noyland Francis 7326 Willow Spring Circle Lantana, Florida 33463 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813
The Issue The complaint alleges that on or about September 7, 1998, Respondent, Glenn L. Marsh, failed to properly supervise a football practice and care for the safety of the students under his supervision in that Glenn L. Marsh failed to provide the students water during the practice, causing the students to become dehydrated and causing one student (S.J.) to collapse and require hospitalization for severe dehydration. Essentially, the factual issue in this case is whether during a two and one-half hour football practice session on September 7, 1998, Glenn L. Marsh, head football coach of Atlantic High school, who did not give a team water breaks to all 40 players at any one time, but instead gave his three assistants coaches unilateral authority to give groups of players under their individual supervision water breaks as they deemed necessary, caused students to become dehydrated and caused one student to become dehydrated and hospitalized, and thereby violated Sections 231.28(1)(f) and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a)and 6B-1.006(3)(e), Florida Administrative Code.
Findings Of Fact Petitioner is a state agency charged with the regulation of the teaching profession pursuant to Chapter 231, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code. Respondent, Glenn L. Marsh, is a certified teacher in the State of Florida, having been issued Teaching Certificate No. 702169 on July 1, 1990. At all times material hereto, Glenn L. Marsh was employed by the Volusia County School Board and assigned to Atlantic High School as teacher/head football coach and continued these dual duties until resigning on or about September 24, 1998. At all times material hereto, Glenn Marsh, head coach, was responsible for establishing policy governing training and operations of varsity football at Atlantic High School. Under Coach Marsh's direct supervision were three assistant teachers/coaches, Ron Grayton, Jim Longerbeam, and Steve Lawson. Substantial and competent evidence establishes that each assistant coach understood his responsibility, when students were under his individual supervision and control, for the care and safety of students in his charge. The Assistant coach's responsibilities included but were not limited to, training and conditioning of players, evaluation of players' strength and weaknesses, and other coaching assignments during training and during the playing of varsity football games. At all times material hereto, Volusia county policy required every male or female student, prior to participation in sport activities, to undergo a physical examination at Halifax Medical Center. A list of students who were medically approved to participate in sports was provided to the high school's Athletic Director, who in turn gave this information to the high school head coach. Student S.J. underwent the required 1998 medical examination, was approved and permitted to participate in sport activities at Atlantic High School. At all times material hereto, S.J. was a student attending Atlantic High School and a member of the Atlantic High School varsity football team. The parties stipulated, with confirmation by S.J., and by his mother, Joy James, that S.J. is a carrier of the sickle cell trait.1 Upon the testimony of the parties, it is established that S.J.'s medical condition, sickle cell trait, was not made known to Duane R. Busse, Investigator, Volusia County Schools, Office of Professional Standards, nor to the Halifax Medical Center during S.J.'s physical examination, nor to Coach Glenn Marsh nor to any other member of the coaching staff at Atlantic High School. From or about 9:00 a.m. to 11:30-12:00 p.m., during the course of his employment, Glenn Marsh was primarily responsible for supervising the varsity football practice at Atlantic High School, Titusville, Florida. On the morning of Monday, September 7, 1998 (Labor Day), at approximately 9:00-9:15 a.m., S.J. and approximately 39 other members of Atlantic High School football team reported to Atlantic High School athletic fields for a routine football practice session for approximately two and one-half hours. Credible evidence shows that players, at their option, dressed in shorts, tee shirts, and helmets for the morning practice. Some players elected to wear girdles.2 Of the players wearing girdles, some inserted padding in the inner girdle pockets and other did not. This early morning practice was a no-contact session.3 The testimony of the witnesses establishes that the weather condition on the morning of September 7, 1998, was normal in Florida for that time of the year, hot and humid, no rain with temperatures in the high 80 to 90 degrees. Credible evidence shows that on September 7, 1998, the no-contact practice session consisted of specific physical activities wherein players were grouped according the their positions on the team. Those physical activities scheduled by Coach Marsh were of limited duration and consisted basically of the following: Starting time: 9:30 AM Stretching 10-15 min. (9:30-9:45) warm ups 45 min (9:45-10:30) special teams 25-30 min (10:30-11:00) defense air 25-30 min (11:00-11:30) offense air 10 min (11:30-11:40) Conditioning runs 10 min (11:40-11:50) knee down review 5 min (11:50-11:55) Locker dress out 5 min (11:55-12:00). Stretching consisted of wind-mills, jumping jacks and in-place running, followed by special teams4 (punt return, offense, defense, wide receivers and running backs, etc.) against air (phantom team) which begins with players doing a walk-through against an air opponent. All players who were not playing on the team engaged in practice were required to kneel on one knee and observe but could not sit down. Conditioning practice, which followed special team practice, consists of running laps up and down the football field with one coach positioned in one end zone, another coach at mid-field to time players, and Head Coach Marsh in the other end zone, directing runs. Credible evidence establishes that the head coach, Glenn Marsh, determines the numbers of laps team members are required to run. On the day in question, Coach Marsh recalled that players ran six 100-yard sprints and two 40-yard sprints and the September 7, 1998, practice session which followed an established routine and pattern of prior practice sessions. Prior to the date in question, team members had undergone some two-a-day practice sessions but at least one practice session had been held every week since the beginning of the 1998 football season without incident of any nature. On September 7, 1998, at or near the conclusion of players running conditioning laps, S.J. experienced a near sycopal episode. S.J. was assisted into the locker room by other students and was treated by coaches and teammates who undressed him, iced him down, and attempted to get him to drink liquids. S.J. was subsequently transported by EVAC to Halifax Hospital, Daytona Beach, Florida, for treatment. Medical evaluation of S.J. by Halifax Hospital staff reported a history consistent with heat exhaustion, dehydration, and a mild renal failure. Follow-up treatment by Dr. Norman D. Pryor, Division of Nephrology, from September 9, 1998 through July 30, 1999, at Nemours Children's Clinic, Orlando, Florida, revealed S.J. had sustained no permanent impairment of his renal function. On January 25, 1999, Dr. Pryor reported S.J.'s renal process resolved and released S.J. to resume sports activities with no anticipated residual over time. (Petitioner's Exhibit 1). On September 7, 1998, Coach Ronald Graydon, in charge of the offense and wide receivers which included S.J., testified that he distinctly recalled giving his group of skilled players a water break: "Okay guys, let's pride it out and go to the trough -- or let's pride it out and get some water, which means break out of a huddle and go get some water." He knows that the water trough was turned on and water was available to players. He does not, however, recall who went to the water trough nor does he recall who drank water at the water trough.5 S.J. testified to the contrary. He recalls that he was never offered water by any of the coaches on September 7, 1998. On cross-examination, S.J. admitted he does not remember how much water he drank on Saturday or on Sunday before the Monday morning football practice session. However, on redirect examination, S.J. remembered, "I had only one cup of water or two cups of water before I went to practice. I thought like they'll have water out there, you know. I wouldn't have liked, you know, chug down like a gallon before I went out there". S.J. testified that though he did not personally go to the water trough (although he remembered that the water trough was not turned on that day), the water trough was not hooked up that day and was not running and that the only source of water they (team) had out there (the practice fields) was a water fountain6 that barely put out any water. S.J. further testified that throughout the entire two and one-half hours of practice session he did not have a drop of water or a chance to get water. According to S.J., as he was down on all fours at about the 10-yard line preparing for conditioning sprints, he asked Coach Marsh, who was standing about 10 to 20 yards away, for water and was told "No." S.J. does not recall if Coach Marsh heard his request. S.J. did not repeat his request to Coach Marsh, other coaches, or fellow students. No witness was presented to corroborate S.J.'s recollection of his being on his knees asking for water. Michael Beauregard, a special team running back player who was in S.J.'s skills group and who, prior to Coach Marsh's becoming head coach, was the starting quarterback for the team, testified from a confused memory of events on September 7, 1998. Initially, Michael Beauregard recalled that practice began in the afternoon. When asked the same question a second time, Mr. Beauregard testified, "I have to say the morning, chances are." Mr. Beauregard testified that to his knowledge, it was Coach Marsh's policy during practice sessions that assistant coaches would gave their individual player groups water breaks. However, on September 7, 1998, as he recalls, assistant coach Jim Longerbeam never gave his group (running backs and wide receivers, including S.J.) a water break. The inconsistencies, contradictions and confusion in Michael Beauregard's testimony render it less than precise and explicit, not the result of distinct memory, confusing as to facts in issue, and therefore, it does not produce a firm belief of conviction. Assistant Coach James Longerbeam, with a master's degree in education and bachelor's degree in physical education and health, took control and supervision of the offensive line, tight ends, and wide receiver players (including Beauregard and S.J.) during the practice session. During these individual skills sessions, Coach Longerbeam distinctly recalls giving his players a water break because he even went over and got water himself from the water trough. The totality of Coach Longerbeam's testimony demonstrated an understanding by assistant coaches of Coach Marsh's policy and methods regarding water breaks during football practice. Assistant coaches understood it was their individual responsibility to send players for water when they were under their personal supervision and in fact, they routinely did so. Further, they understood that when on team breaks between offense and defense team practice sessions, should Coach Marsh blow his whistle, all players would be free to get water at that time, that is, a full-team water break. Coach Longerbeam testified that during the September 7, 1998, football practice every player was in a group under an assistant coach at some point in time, but he does not recall when the other assistant coaches sent their players on water breaks. Joe Hampton, with bachelor and master degrees in physical education, teacher/coach for 32 years, currently employed at Estero High School, Ft. Myers, Florida, and a year officer of the Florida High School Athletic Association gave the following opinion testimony: His studies in conditioning and effects of physical exercise on the human has lead him to conclude that it is important to maintain proper hydration for varsity students; It is vitally important to drink the right kind of fluids, (non-caffeine), water primarily, and lots of it before engaging in physical exercise; If one is not properly hydrated prior to practice requiring physical exercises, what you drink at or during practice will not be sufficient to hydrate you; it may maintain you, but not hydrate you; Varsity students lose weight during varsity football practice and games, from one or two to seven or eight pounds, which is mainly water loss. It takes an average of 24 hours to replace water weight loss through hydration by constant hydration; In his 32 years of experience it is very rare for varsity players to become dehydrated; he has experienced one of two; but it's most unusual; Water breaks are routinely determined by the head coach and usually follow a simple pattern; i.e. one after teams and skills portion of a two and one-half hour practice; another after a time interval determined by the coach who knows the weather conditions, type of practice and knowledge of his kids; He is not aware of any rule or anything that says it is mandatory to have team water breaks. Water breaks are discretionary with each head coach; Varsity players' complaints of hot, tired, hurting, dying, can't make another step, etc. are common players' complaints when players are being pushed by their coaches to reach a higher performance level and to enhance their physical capabilities; He was not present at Atlantic High on September 7, 1998; He had had one and one-half hour walk through sessions where no water breaks were given; but, he had never been in a two and one-half hour practice session where no water breaks were given, and He opined that if a group of players were engaged in a two and one-half hour practice session and no water was made available, it would be inappropriate conduct on behalf of the coaches. Respondent, Glenn L. Marsh, with a bachelor's degree (1990) in exceptional education and eight years' classroom teaching experience prior to accepting the teacher/coach position as Atlantic High School, received the highest rating on his assessment evaluations at each high school by which he has been employed.7 Coach Marsh testified that there were approximately 40 varsity players at the practice on September 7, 1998. Practice began at 9:00 a.m. in the morning, it was a light no-contact practice with helmets only, and no student other than S.J. suffered dehydration or collapsed. Coach Marsh further testified that the entire team, including S.J., endured two-a-day practice sessions beginning in August of 1998 until playing the first varsity game; that thereafter, one-a-day practice sessions were the usual pattern; that during the weeks of two-a-day practice sessions, no student suffered any problems, including dehydration, other than normal bumps and bruises associated with playing the game of football. Coach Marsh's confirmed that his policy and method of supervision was to give his assistant coaches individual authority to give water breaks to students when in individual training/practice sessions. He recalls that during individual groups, Assistant Coach Longerbeam was in charge of managerial things while he, Coach Marsh, was coaching and teaching, and Coach Longerbeam sent those players on water breaks.8 Coach Marsh recalled offering team water breaks during practice in his usual manner of a general statement to all, "Guys, anybody that needs water, get it," which would normally be echoed by assistant coaches. On the day in question Coach Marsh recalls he offered a "guys, anybody need water, get it" team water break before the start of the conditioning exercise phase of the practice. Coach Marsh does not recall any player personally asking him for water or a water break and heard no complaints from players about a lack of available water; nor does he recall seeing any group, other than the group of which he was in charge, actually going for water. Coach Marsh testified that his general group response/comment, given to no one student in particular and given many times in the past to all players, when players would complain about running laps, that is, "I am tired," "golly coach I am dying," was, in effect, "Guys you are not dying. You will pass out before you die." This statement is his general motivational response to players' gripes when running. He does not specifically recall, however, if he made that statement on September 7, 1998, but, admitted on cross-examination that he may have. Coach Marsh testified that his water availability policy change, removing the plastic water bottles and cups from the practice field and replacing them with the single-source water trough, was based upon several concerns: 1) students were distracted by playing and squirting each other; 2) not- withstanding his constant instructions against it, students continued to drink directly from the bottle, thereby increasing the health risk of passing colds, etc.; and 3) there was a lack of accessibility between the two practice fields. Following the September 7, 1998, incident and before September 24, 1998, Coach Marsh testified he met with Ron Pagano, principal of Atlantic High School. Mr. Pagano informed Coach Marsh during that meeting that Atlantic High School's water policy would be "get water every ten minutes no matter what the amount of physical activity, whether running, sitting, or standing, every ten minutes." There was no evidence proffered addressing whether Atlantic High School or Volusia County established, published or made known policy, standards, or guidelines regarding mandatory water breaks for students engaged in high school varsity sports, prior to and on September 7, 1998. Based upon evidence of record and at all times material hereto, Atlantic High School did not have in place a policy, principle, or guideline relating to the issue of water for student athletics engaged in physical activities. When questioned by Petitioner's attorney about newspaper articles containing allegations leveled against him, that players had not been provided with an adequate supply of water, Coach Marsh response was that he took the position that those allegations were untrue and unworthy of his making a public response.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it recommended that State of Florida Education Practices Commission issue a final order finding Respondent, Glenn L. Marsh, not guilty of violation of Section 231.28(1)(f) and Section 231.28(1)(i), Florida Statutes, and Rule 6B-1.006(3)(a) and Rule 6B-1.006(3)(e), Florida Administrative Code. DONE AND ENTERED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2001.
The Issue Whether Respondent may be dismissed from employment with Florida Agricultural and Mechanical University (FAMU) for violation of FAMU Regulation 10.111.
Findings Of Fact FAMU Regulation 10.111, a duly promulgated regulation, was in effect at all times relevant hereto. (Stipulation 5.) FAMU Regulation 10.206, a duly promulgated regulation, was in effect at all times relevant hereto. (Stipulation 6.) 3. FAMU Regulations 10.100, 10.101, 10.105, 10.106, and 10.120, all duly promulgated regulations, were in effect at all times material. At all times material, Dr. Cynthia Hughes-Harris served as FAMU’s Provost and Vice-President for Academic Affairs. On May 6, 2008, Dr. James H. Ammons, in his capacity as President of FAMU, had delegated to Dr. Hughes-Harris authority to administer all applicable FAMU regulations, policies, and procedures. (Stipulation 9.) The incident that gave rise to FAMU's letter of termination to Respondent occurred in the FAMU football stadium’s field house during the FAMU homecoming game on November 1, 2008. As of November 1, 2008, Respondent had been employed in the football program at FAMU since 1997. He had served successfully under five athletic directors without receiving a bad employment rating. On June 28, 2008, he had received the American Football Coaches Association’s Outstanding Equipment Manager of the Year Award. On November 1, 2008, and at the time of his termination, Respondent was employed by Petitioner FAMU as Coordinator, Intercollegiate Athletics. The contract period for Respondent’s employment in effect at the time covered July 1, 2008, through June 30, 2009. (Stipulation 1.) As Coordinator, Intercollegiate Athletics, Respondent worked as the equipment manager for the FAMU football program. (Stipulation 2.) At all times material, Respondent’s employment classification was Administrative and Professional (A&P), with a regular appointment status. As such, Respondent was not a FAMU employee with “permanent status” as contemplated by FAMU Regulation 10.206. (Stipulation 3.) At all times material, William Lewis Hayes, Sr., was employed by FAMU as Director of Athletics. (Stipulation 4.) As such, Mr. Hayes had oversight of FAMU’s Department of Athletics, including 18 intercollegiate sports teams, and supervisory responsibility for approximately 67 employees, including Respondent. Not the least among Mr. Hayes’ many responsibilities was to act as head coach. As a result, Mr. Hayes was often referred to as “Coach Hayes.” At all times material, Respondent was subordinate to Coach Hayes. Upon his arrival and assumption of his duties at FAMU, in January 2008, Coach Hayes had become aware that scheduled intercollegiate football games played in the FAMU stadium were losing money. He also became aware that during home games, a significant number of people were entering the football stadium, its field, and its out-buildings without a game ticket. Coach Hayes regarded all non-paying attendees for both home and away games as gatecrashers and freeloaders. He reasonably believed that if all non-paying attendees were denied entrance, or if their number were at least reduced, the same people would pay the cost of admission; FAMU would increase its game receipts accordingly; FAMU’s $4,000,000, deficit would be eliminated; and the significant number of athletic scholarships which he administered would be on firmer financial ground. On November 1, 2008, Coach Hayes was 65 years old. He had successfully worked in athletics for 50 years and had coached football for 39 of those years. He had the reputation of being large and loud, and of occasionally emitting some of the verbal belligerency characteristic of male athletics generally, and of a “coach in charge” specifically. However, at all times material, he was the “coach in charge,” and the record is devoid of any evidence that he has ever been physically violent to employees or co-workers. In an attempt to reduce the Athletic Department’s financial deficit, Coach Hayes started, in March 2008, to hold weekly “game operations meetings” with mandatory attendance of most of his staff. At these meetings, he explained his reasons for tightening up on the number of non-paying game attendees; pointed out problems encountered at the last game; and asked security personnel and his subordinates to “brainstorm” ways to keep people from getting into games without paying for a ticket. Respondent attended at least some of these meetings. At one of the game operations meetings, Sgt. Beverly Stephens of the FAMU Police Department explained that the field house at FAMU’s Stadium had been identified as a significant, even the primary, entry point for non-paying attendees to get into home games and that some people were using Respondent’s name in their request for entry. Respondent was present at that meeting. Respondent was not the only FAMU employee assigned to the athletic field house, but Respondent’s office, equipment room, and general operating area were located in the field house. During the meeting with Sgt. Stephens, Respondent became visibly agitated by Sgt. Stephens’ remarks and stood up, loudly challenging her statements. He was either cajoled into calmness or physically restrained by a member of the group. Respondent explained his out-of-proportion reaction to Sgt. Stephens as “feeling disrespected” by her or because he was not familiar with Sgt. Stephens’ way of speaking or doing things. Prior to November 1, 2008, Respondent knew that one of the ways Coach Hayes planned to thwart non-paying game attendees was to retract entry credentials from everyone except absolutely necessary game personnel. For purposes of this case, the term “credentials” encompasses FAMU printed materials, FAMU paraphernalia such as items to carry balls, and FAMU football jerseys. Willie J. Pettigrew had been FAMU’s Athletic Transportation Officer for the 14 years preceding the material time frame and held that position at all times material hereto. Mr. Pettigrew had attended one or more of the game operations meetings and knew Coach Hayes wanted to keep unauthorized people out of the field house. At the commencement of the homecoming game on November 1, 2008, Mr. Pettigrew observed a bunch of people in the equipment room and told Respondent that he needed to get them out. As the first half of the homecoming game was ending, Mr. Pettigrew told Coach Hayes that he had seen a bunch of people in the field house; that the people had been gotten out of there; and that Coach Hayes should go check out the equipment room himself. Mr. Pettigrew was not specific as to why Coach Hayes should check out the equipment room, but his inference was that there continued to be unauthorized people in the equipment room. Most football games require only one or two ball boys for each side of the field for a total of four ball boys per game. At some point in time, possibly as Coach Hayes was making his way towards the field house at half time on November 1, 2008, Coach Hayes told Respondent to clear out, from the end zone near the field house, 6-to-12 boys who had failed to get appointed as official ball boys but to whom Respondent had given identifying jerseys, anyway. Respondent got the jerseys back from the boys, but Respondent considered Coach Hayes’ directive to him with regard to the ball boy “wantabees” to be Coach Hayes’ first of three “disrespectful” actions towards Respondent. Respondent felt Coach Hayes had hurt and disappointed boys whom Respondent had been mentoring, but there is no credible evidence that the boys reacted in the same way as did Respondent, and the boys were not ejected from the game, but were asked to go sit in the stadium. At half time on November 1, 2008, Respondent proceeded to the equipment room inside the field house and closed the door behind him. Coach Hayes came immediately behind Respondent, but he reached the door to the equipment room after it closed, and the equipment room door was locked when he tried to open it. Coach Hayes twice knocked loudly on the door to the equipment room, and when no one opened the door, Coach Hayes used his all- access key to enter the equipment room. Respondent considered the loud knocking to be the second of three disrespectful things Coach Hayes did to him. Apparently, when Coach Hayes unlocked the door and entered the equipment room, an 18-year-old, very tall ball boy and Respondent’s adult brother were with Respondent in Respondent's office, and in the equipment room, or in another equipment room office there was an adult ball boy "wantabee." As soon as Coach Hayes entered the equipment room, he observed an individual he did not recognize. He then passed on to Respondent’s office within the equipment room, where he observed Respondent and two other individuals. He demanded to know who the two people in Respondent’s office were. Precisely what Coach Hayes said in Respondent’s office is in dispute, as is whether Coach Hayes went out into the equipment room and came back into Respondent's office again, but the evidence is clear that what Coach Hayes did and said amounted to shaking his finger at Respondent and saying something to the effect of “You know we have talked about unauthorized people being in the field house. Why are you trying me? Who are these people?” Respondent considered Coach Hayes' inquiry to be the third instance of Coach Hayes “disrespecting” him, and Respondent further felt Coach Hayes was “harassing” him. One of the two people in Respondent's equipment room office with Respondent was Respondent’s brother. Coach Hayes did not recognize the brother or the other person in Respondent's office when he asked Respondent who they were. Coach Hayes had given Football Coach Taylor permission to have one or two people enter the fence around the field house and set up a grill near the field house to cook for some of Coach Taylor’s family. Respondent’s brother was one of these cooks. Coach Hayes had authorized Coach Taylor’s group to enter and leave the field house by a particular outside door so as to use the restrooms near that door. Coach Hayes also was aware that someone was cooking and preparing to serve food to the football team in another room of the field house. However, at the time Coach Hayes asked Respondent to identify the people in Respondent’s office and to explain what they were doing there, neither of them was cooking outside, using the restroom near the appropriate doorway, or distributing food to football players. At the time Coach Hayes asked Respondent who Respondent’s brother and the tall ball boy were and what they were doing in the equipment room’s office, both visitors were sitting in Respondent’s office watching the game on television. Upon Coach Hayes’ inquiry, Respondent informed him that one person was a ball boy and one “the cook,” but Respondent did not volunteer that the cook was also his brother. Nobody showed Coach Hayes an admission ticket. Respondent then advanced upon Coach Hayes, yelling loudly that Coach Hayes should let Respondent do his job and that Coach Hayes should stop “disrespecting” Respondent. Respondent screamed at Coach Hayes that he would not respect Coach Hayes or tolerate Coach Hayes’ treatment any longer. Respondent got his own face within six-to-eight inches of Coach Hayes’ face, and Coach Hayes began to back out of the doorway into the hall. Respondent continued to loudly threaten to get Coach Hayes fired and advanced on him in the hallway in such a way that Tight End Coach Edwin Pata was attracted to the scene by Respondent's yelling and recognized the situation as "serious" and needing intervention. Coach Pata described Respondent as being so far "in Coach Hayes’ face" that they could have “kissed.” Coach Hayes testified credibly that Respondent was using profanity and making oral threats of physical violence against him as he backed away from Respondent and Respondent continued to advance upon him. Respondent denied both using profanity and making threats. Although other witnesses waffled as to whether Respondent used profanity at this time, Coach Hayes is the more credible witness over Respondent on the profanity issue. Regardless of what Respondent said, the volume and tone of his voice, his demeanor, and his proximity to Coach Hayes was physically threatening to Coach Hayes. No credible witness heard Coach Hayes saying anything, as he backed away from Respondent into the hallway, which amounted to more than “I’m just trying to do my job.” Once in the hallway, the noise and threatened violence from Respondent was serious enough that Coach Pata grabbed Respondent from behind and pulled him away from Coach Hayes. Respondent then broke away from Coach Pata and pushed himself into Coach Hayes’ face again, all the time screaming at Coach Hayes. At that point, Coach Pata grabbed Respondent from behind a second time and “handed off” Respondent to William Bennett, FAMU’s Videography Coordinator, who forcibly removed Respondent from the hallway into another room. Neither Coach Pata nor Mr. Bennett felt physically threatened by Respondent. Coach Hayes was initially “stunned” by the sudden and intense aggression of Respondent, who, though smaller than Coach Hayes, was also approximately 35 years' younger, fitter, and overwrought. When the second half of the game began, Coach Hayes was still so shaken by the incident with Respondent that he had to sit down outside the field house. He sat there for the entire second half of the game, unable to proceed with his usual second half activities. As early as FAMU’s Human Resources Office opened on Monday, November 3, 2008, Coach Hayes went there to ask what to do about Respondent. He was told to report the incident to the FAMU Police Department, which he did. A FAMU police officer interviewed Coach Hayes and Respondent. He got a signed, written statement from Coach Hayes and one from Respondent that day. In his written statement, Respondent admitted that he “went off” on Coach Hayes. Other potential witnesses could not be contacted on November 3, 2008, so the FAMU Police Department did not get written statements from other potential witnesses until much later. However, on the basis of what he had heard that day, Officer Darren Folsom concluded that Respondent should be charged with simple assault. Later on Monday, November 3, 2008, Respondent accosted Willie J. Pettigrew and threatened to “bar [his] ass from the field house” for telling Coach Hayes to check out the equipment room the previous Saturday, November 1, 2008. Still later on Monday, November 3, 2008, a representative of FAMU’s General Counsel’s Office physically presented Respondent with a termination letter signed by Dr. Hughes-Harris which read, in pertinent part, as follows: Pursuant to Florida A & M University (FAMU or University) Regulation 10.111, you are hereby notified that your employment with the University is terminated effective immediately. This employment action is taken against you for your disruptive conduct on November 1, 2008. Please see the enclosed copy of the police report filed on November 3, 2008, as documentation in support of this employment action. After that, Respondent was escorted off campus by a member of FAMU’s legal staff and one of its police officers. Respondent has never been arrested for the alleged assault. The letter dated November 3, 2008, informed Respondent that his employment with the University was terminated “effective immediately.” (Stipulation 8.) He also received this correspondence on November 7, 2008, by certified mail, return receipt requested. (Stipulation 9.)
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Florida Agricultural and Mechanical University enter a Final Order ratifying its termination letter of November 3, 2008. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 14th day of May, 2009. COPIES FURNISHED: Linzie Bogan, Esquire, Avery McKnight, Esquire Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307 Sha'Ron James, Esquire Monica Evans, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Tallahassee, Florida 32308 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
