The Issue Whether Petitioner has sufficient just cause to terminate Respondent, Jacqueline Skinner ("Skinner"), for multiple unapproved absences from work.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following Findings of Fact: Parties' Stipulated Facts At all times pertinent, Respondent was employed by Petitioner as a bookkeeper at Central Elementary School. Respondent's supervisor during the 2016-17, 2017-18, and 2018-19 school years was Joseph G. Stanley, principal of Central Elementary School. Respondent's supervisor during the 2019-20 school year was Cynthia Kubit, principal of Central Elementary School. At all times pertinent, Christina Norman was an assistant principal at Central Elementary School. At all times pertinent, Ken Kenworthy was superintendent of Okeechobee County Schools. The annual noninstructional employee evaluations of Respondent from the 2017-18, 2018-19, and 2019-20 school years showed that Respondent needed improvement in attendance. Pet. Ex. 1. Respondent failed to report for work on June 7, 2019, without arranging for leave in advance and without notifying her immediate supervisor. Principal Joseph G. Stanley issued a letter to Respondent dated June 14, 2019, confirming a verbal reprimand; Respondent acknowledged receipt of said letter. Pet. Ex. 2. Respondent failed to report for work on October 29, 2019, without arranging for leave in advance and without notifying her immediate supervisor. Principal Cynthia Kubit issued a letter of reprimand to Respondent dated October 30, 2019; Respondent acknowledged receipt of said letter. Pet. Ex. 3. During February 2020, Respondent continued to have incidents regarding leave and, by letter dated February 20, 2020, Principal Cynthia Kubit recommended disciplinary action against Respondent; Respondent acknowledged receipt of said letter. Pet. Ex. 4. On May 15, 2020, Respondent failed to report to work without arranging for leave in advance and without notifying her immediate supervisor. Principal Cynthia Kubit, in the presence of Assistant Principal Christina Norman, called Respondent several times and issued a memorandum of the telephone conversations. Pet. Ex. 6. Principal Cynthia Kubit issued a letter to Superintendent Ken Kenworthy dated May 18, 2020, recommending that Respondent be terminated; Respondent acknowledged receipt of a copy of said letter. Pet. Ex. 7. By letter dated May 18, 2020, to Respondent, Superintendent Ken Kenworthy informed Respondent that he was recommending to the Board that Respondent's employment be terminated. The letter was hand delivered to Respondent by Assistant Principal Dylan Tedders and Respondent acknowledged receipt of a copy of said letter. Pet. Ex. 8. At all times pertinent, School Board Policy 6.213--Notification of Absence--was in effect. Pet. Ex. 9. At all times pertinent, School Board Policy 6.20--Leave of Absence-- was in full force and effect. Pet. Ex. 10. At all times pertinent, School Board Policy 6.52--Suspension and Dismissal--was in full force and effect. Pet. Ex. 11. At all times pertinent, School Board Policy 6.45--Alcohol and Drug Free Workplace--was in full force and effect. Other Facts Established by the Evidence Skinner was employed pursuant to the Okeechobee County School Board Classified Personnel Contract for the 2019-20 School Year on a continuing basis. Pet. Ex. 18. An employee who has completed the probationary period may be dismissed under the Classified Personnel Contract for just cause. Pet. Ex. 18, p. 15. Pursuant to the Classified Personnel Contract, under Public Employer Rights, "[i]t is the right of the Board to direct its employees, to take disciplinary action for proper cause, and relieve its employees from duty because of lack of work and other legitimate reasons…." Pet. Ex. 18, p. 5. Pursuant to the Classified Personnel Contract, the Board is required to follow progressive discipline, the progression of which is as follows: "documented verbal warning; written reprimand following a meeting; suspension; termination." Pet. Ex. 18, p. 13. It was largely undisputed, as acknowledged in the Joint Pre-hearing Statement-Amended, filed September 1, 2020, that Skinner had attendance problems the past several years of her employment, which escalated in the last year of her employment. According to her supervisor, Kubit, Skinner's attendance problems started immediately when Kubit became principal in July 2019 and continued throughout the last year of Skinner's employment. During her last year of employment, from the time period July 1, 2019, through May 14, 2020, Skinner accumulated numerous absences from work. During her last year of employment, Skinner used more leave than she had allocated. This put her leave bank in the negative. Pet. Ex. 19. This was not the first time Skinner used more leave than she had accrued. Her prior supervisor, Dr. Stanley, testified that Skinner would run out of available sick days and then would have to take unpaid leave. During her last year of employment, Skinner failed to attend work approximately ten days and failed to arrange for advance leave with her supervisor. Pet. Ex. 12. Providing advance notice of an absence could have been accomplished by Skinner by calling, texting, or e-mailing her supervisor any time prior to the start of the work day, even a few minutes before. On some of the days when Skinner failed to attend work, arrange for leave, or notify her supervisor, her supervisor, Kubit, nonetheless tried to assist Skinner by not disciplining her for failure to attend work without notice. For instance, Kubit sometimes allowed Skinner to use vacation days when she ran out of sick days even though employees are normally required to arrange for vacation leave days in advance. Kubit did so because she wanted Skinner to come back and work more regularly. Kubit thought it would help Skinner to do so. According to Kubit, Skinner did not provide legitimate excuses for her unauthorized absences. Instead, she just repeatedly apologized and promised to improve her attendance in the future. Skinner candidly acknowledged during her testimony that she had attendance problems and that she had received multiple disciplinary letters for her problems with attendance. Annual Performance Evaluations As part of her employment, Skinner received annual employee evaluations. Pet. Ex. 1. Her attendance problems over time were documented and verified in her annual employee evaluations. Pet. Ex. 1. More specifically, Skinner's last four annual employee evaluations evaluated her on six main categories of performance, one of which was Attendance. This category evaluated the following performance attribute: "Complies with policies and procedures regarding usage of time and leave; [m]aintains scheduled work and break times; [r]eports absences for emergencies and illnesses, and requests leave, in a timely manner." Pet. Ex. 1, pp. 1-4. In each of her last three annual employee evaluations, Skinner was rated as "Needs Improvement" for Attendance. Pet. Ex. 1, pp. 2-4. On each of the last four annual employee evaluations, Skinner also received written comments from her supervisor about her attendance. These comments were consistent and pointed out that Skinner needed to improve attendance and work to comply with attendance policies. Pet. Ex. 1, pp. 1-4. Each annual performance evaluation was discussed with Skinner and she signed each. Pet. Ex. 1, pp. 1-4. School Board Attendance Policies and Requirements The Board's policies established and outlined general guidelines and expectations for work attendance. Employees were generally expected to attend work as scheduled unless they had arranged for advance leave. See generally, Pet. Ex. 10. Employees who were absent from duty for any reason were required to notify their supervisor as early as possible. Notification of an absence had to be given in advance unless conditions beyond the control of the employee made advance notice impossible. Pet. Ex. 9. The Classified Personnel Contract governing Skinner and other employees similarly provided that employees were required to arrange for advance leave for vacation and to notify their supervisor prior to the start of the work day if they were taking sick leave. Pet. Ex. 18, pp. 33 and 34. The School Bookkeeper Job Description, which applied to Skinner, required her to follow attendance, punctuality, and other qualities of an appropriate work ethic. Pet. Ex. 13, line 11. Skinner's significant and frequent attendance problems caused her to fall short of these policy, contract, and job description requirements. History of Attendance Problems The witnesses confirmed that Skinner violated the attendance policies on a frequent basis for several years. Regrettably, her attendance problems became most acute in her last year. This eventually lead to a recommendation for her termination in her last year of employment. The parties acknowledged in their Joint Pre-hearing Statement- Amended, that Skinner received all required stages of progressive discipline for her attendance problems. This included a verbal warning, a written reprimand, and a suspension, finally resulting in a recommendation by the Superintendent that her employment be terminated. Skinner's supervisors also discussed and counseled her on her attendance problems several times throughout the years, both informally and formally. In the disciplinary letters, Skinner was informed that, in the event of recurrence, she would be subjected to further discipline including a recommendation for termination. Pet. Exs. 2-3. More specifically, in the disciplinary letter from the Superintendent dated March 3, 2020, Skinner was informed that: "It is expected that there be no further occurrence of such behavior. If it continues, your position with the Okeechobee County School Board will be terminated." Pet. Ex. 5, p. 1. In this disciplinary letter, Skinner received numerous attachments including copies of the Board Policy 6.213, entitled "Notification of Absence and the Employee Assistance Plan." Skinner signed and acknowledged receiving the disciplinary letters for her attendance problems, and agreed that they put her on notice that her attendance shortcomings were a problem. Skinner also received negative employee evaluations on her attendance for the past three years, which were discussed and signed by her. Pet. Ex. 1, pp. 2-4. It was clear to the undersigned that Skinner received full, fair, and adequate notice of her attendance problem for several years. Unfortunately, she was unable to correct it after multiple warnings, corrective action, and progressive discipline. Termination Authority Superintendent Ken Kenworthy is responsible for determining and recommending whether an employee should be terminated for violation of Board policies or rules. Pet. Ex. 11. The Superintendent is only entitled to discipline and terminate the employment of an administrative employee on a continuing contract for "just cause." Pet. Ex. 18, p. 15. The Superintendent testified that he takes many factors into consideration when determining whether just cause exists for termination. He looks at the reasonableness of the Board's rules, whether the employee was informed of the rules, and whether the disciplinary action taken is proportionate to the infraction. The undersigned finds that this process is fair, and provides adequate due process to affected employees of the District. The Superintendent ensures that progressive discipline has been followed when taking an action against an employee's employment. See generally, Pet. Ex. 8. In this case, all the stages of progressive discipline from informal conversations and memoranda of conference through the formal disciplinary stages of verbal reprimand, written reprimand, suspension, and recommendation for termination were followed. The Board's rules on employee attendance are reasonable and necessary to ensure the proper functioning and operation of the school district. Several witnesses and the Superintendent testified that proper and regular attendance was a "critical" and "essential function" of an employee's job performance. Skinner's supervisors, Kubit and Dr. Stanley, both testified that notification of absences when an employee cannot attend work is "critical." Several Board witnesses provided testimony showing the hardship that Skinner's absences created for Central Elementary School. For instance, Dr. Stanley expressed his view that it was a hardship for Central Elementary School when Skinner was absent, especially at the last minute, because others had to cover her job. This left the school short staffed in other areas. Likewise, according to Kubit, it was especially difficult when Skinner was absent because other people had to perform her duties, but according to rules and regulations most people were not authorized to handle money. According to Assistant Principal Norman, when Skinner was absent from work, money would have to be kept at the school even though it is supposed to be promptly deposited. This was true because only Skinner could verify the money for a deposit. This violated bookkeeping rules about depositing money, and was unsafe when large sums of money were left undeposited at a school. Skinner was advised on numerous occasions and by different people that her repeated and unauthorized absences without notification were creating difficulty for the functioning of Central Elementary School. Not only did Skinner leave the school short staffed, but she had a tendency to do so when her presence was most needed. The witnesses concurred that Skinner's repeated absences tended to follow a pattern. For example, if Central Elementary School was at a busy time of year or an event occurred that required additional bookkeeping, like a fundraising event, Skinner often would not come to work and did not arrange for leave or call in. This left the school in a difficult predicament. Aside from her leaving the school short staffed, Skinner's work absences also had a negative effect on her job performance. Several Board witnesses testified, for example, that Skinner's work performance started to decline. This was caused by Skinner's work getting backed up and not completed on time because of her absences. This became particularly evident after her suspension when other employees came in to review her unfinished work and sort out the bookkeeping at Central Elementary School. During this review, several problems were noticed. Skinner acknowledged knowing that her problem with unauthorized absences was having a negative effect on Central Elementary School. During the hearing, Skinner admitted that her struggle with alcohol misuse caused or contributed to her attendance problems. According to her supervisor, Dr. Stanley, Skinner never provided alcoholism as an excuse for her absences. Instead, Skinner would make the excuse that she slept in or just did not get up to come to work. According to her supervisor, Kubit, Skinner did not offer or mention problems with alcohol as an excuse for her unauthorized absences. Instead, she regularly apologized and promised to improve her attendance in the future. Not only did Skinner not reveal to her supervisors that alcoholism was a reason for her absence problem, Skinner never sought assistance or accommodation for her struggle with alcohol prior to the Superintendent's recommendation for termination. The Board provides employees struggling with medical or other problems assistance through its Employee Assistance Program. It also provides leave for medical problems though the Family Medical Leave Act ("FMLA"). Pet. Ex. 18, p. 32. Skinner was provided a copy of the Employee Assistance Plan when she was suspended for three days in March 2020, prior to the Superintendent's recommendation for termination of her employment two months later. Pet. Ex. 5, p. 2. However, despite her awareness of the assistance offered in March 2020, Skinner never used the Employee Assistance Plan or FMLA leave to try and save her job or correct her underlying problem prior to being terminated. While the evidence revealed that an employee suffering from an alcohol problem had an opportunity to seek treatment while still employed, this treatment was permitted when their employment was active and in good stead--not after the employee was suspended and dismissal of employment was in progress. Further, Skinner testified that she had been an alcoholic her "whole life" and it had progressively gotten worse in the last four years. Regrettably, there was no medical documentation or other evidence provided in advance for the Board to verify her problem with alcohol. But, at the end of the day, and to be clear, this was Skinner's illness and it was her responsibility to seek help and take advantage of programs the Board offered.2 2 The undersigned reasonably infers from the evidence and record that Skinner knew or should have known about the Employee Assistance Plan many months, if not years, before her termination. Sadly, however, she did not take advantage of the program. Turning directly to the matter at hand, the allegations of the Superintendent's termination letter were limited to her attendance problems. While problems with alcohol may have existed or accounted for her absences, the crux of this case concerns Skinner's attendance problem. Other violations or performance deficiencies related to Skinner's problems with alcohol or related performance issues were not alleged as a basis to terminate her. Those related problems provide some background and context to the attendance issue at hand, but they are not being considered by the undersigned as directly affecting the outcome of this case. Added to that, despite later discovering Skinner's problems with alcohol and how this affected her attendance, the Superintendent did not amend his recommendation for termination of employment to include abuse of alcohol or other related work performance issues. Superintendent Kenworthy felt that Skinner's chronic and disruptive workplace absences alone merited termination of employment. In his view, no other violations needed to be cited since Skinner was not meeting his attendance expectations. Based on the greater weight of the evidence, the undersigned finds that the Board had sufficient just cause to terminate Skinner for repeated and chronic attendance problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Okeechobee County School Board enter a Final Order terminating Jacqueline Skinner's employment. DONE AND ENTERED this 22nd day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2020. COPIES FURNISHED: Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Thomas L. Johnson, Esquire Law Office of Thomas Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed) Thomas W. Conely, Esquire Conely & Conely, P.A. Post Office Box 1367 Okeechobee, Florida 34973 (eServed) Molly Lauren Shaddock, Esquire Sniffen and Spellman 605 North Olive Avenue, 2nd Floor West Palm Beach, Florida 33401 (eServed) Ken Kenworthy, Superintendent Okeechobee School Board 700 Southwest 2nd Avenue Okeechobee, Florida 34974 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact During the 1991/1992 school year, the Respondent, Patricia Albritton, was teaching in the Pinellas County Public School System under an annual Professional Service Contract, renewable from year to year as determined by the School Board. She was an "itinerant teacher," meaning she had classroom assignments at various schools. Her base school was Azalea Middle School, where she taught a strings orchestra class at 1:30 p.m., and then had a teacher planning period before end of the school day dismissal. On March 18, 1992, shortly after the bell rang for the beginning of the strings class at Azalea Middle School, the Respondent entered the class and, in preparation for the class, requested that the pupils rearrange the chairs in semi-circles to simulate the seating arrangement for an upcoming concert. The class was noisy, and many of the pupils either did not hear or ignored her instructions despite her having raised her voice to get their attention. Frustrated and angry, the Respondent picked up a wooden chair to almost face level and slammed it to the floor. In the process, she lost her grip on the chair, and it slammed to the floor with enough force for one leg of the chair to crack. She then asked the class a question to the effect of, "do I have to do cartwheels to get your attention?" As she turned away from the class, perhaps in response to a pupil's question as to why the class was being required to give a concert performance, the Respondent also mumbled to herself, but in a voice loud enough for some of the pupils to hear: "I'm getting so tired of this damn class." After this incident, the Respondent either set the chair to the side or put it in the adjoining supply room where the Respondent generally stored music stands. One or more of the pupils who tended to be the class troublemakers, or clowns, retrieved the broken chair, and one of them purposely sat on it and appeared to fake falling to the floor. The fall did not appear to be of the kind likely to have injured the pupil in any serious way. Nonetheless, the pupil complained that his head hurt and asked for permission to go to the clinic. The Respondent, who had observed the apparent fakery and knew the propensities of the pupil involved, declined permission, believing it was yet another in a series of ploys to get out of class. She said something to the effect of, "you were stupid to sit on the broken chair." When the pupil persisted in saying his head hurt, the Respondent mocked him, saying words to the effect, "oh, you poor baby." After the incident, the parents of the pupil who tried to fake falling in the broken chair became upset with the Respondent and took their son out of the Respondent's strings class. Two other parents expressed concern, primarily about the Respondent's angry outburst and throwing the chair. Otherwise, there was no evidence that the Respondent's effectiveness as an employee of the School Board was impaired as a result of the incident. She had no difficulties at any of the other schools where she taught. The Respondent has been a teacher in the Pinellas County School System for ten years. Aside from some criticism for being tardy in 1986, the Respondent generally was not seriously criticized for deficiencies in her teaching ability or other aspects of her work in the earlier years of her teaching career. On November 10 and December 4, 1989, the Respondent received written reprimands for poor judgment. The former reprimand included criticism for using inappropriate language loud enough for her pupils to hear her. Her performance evaluation for the 1990/1991 school year included criticism in the areas of judgment and interpersonal relationships with parents and children, and it expressed the need for improvement in those areas. At the beginning of the 1991/1992 school year, the Respondent was put on an annual comprehensive evaluation cycle. An October 23, 1991, appraisal of her instructional performance in a pre-arranged visit to her class by the assistant principal reflected that the Respondent was satisfactory in all areas. In mid-January, 1992, the Respondent grabbed a pupil at Azalea Middle School (the same boy who later faked falling in the broken chair) by the shoulders and shook him to get his attention. As a result, the Respondent's assistant principal cautioned the Respondent to exercise better judgment and, in keeping with School Board policy, to keep her hands off pupils she is reprimanding. A March 5, 1992, appraisal of her performance in non-instructional areas reflected improvement in that her judgment was rated satisfactory. After the March 18, 1992, incident, her rating for management of student conduct again was lowered to "needs improvement."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order that, notwithstanding evidence of poor judgment, as set above, the Respondent, Patricia Albritton, not be suspended for three days without pay. RECOMMENDED this 4th day of November, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 4th day of November, 1992.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of race and national origin, for the reasons stated in the Charge of Discrimination and Petition for Relief, in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner is a member of a protected class. Petitioner is Haitian and African-American. Respondent employed Petitioner up to the time of the alleged discrimination. On January 30, 1995, Respondent conducted a plant-wide meeting to introduce, distribute, and explain a new edition of Respondent's employee handbook (the "handbook"). The policies and procedures contained in the handbook, including a new attendance policy, became effective on February 1, 1995. Petitioner attended the plant-wide meeting along with Respondent's other employees. Respondent gave each employee at the meeting, including Petitioner, a copy of the handbook. Petitioner never indicated to anyone that he did not understand the contents of the handbook. Petitioner never asked any questions concerning the contents of the handbook, including the new attendance policy. Petitioner signed an acknowledgment of receipt form dated January 30, 1995. By signing the form, Petitioner agreed he had received and read the handbook and understood its contents, including the new attendance policy. Respondent's office and personnel manager (the "office manager") explained to the employees in attendance at the plant- wide meeting that they could take up to one week to review the handbook and sign and return the acknowledgment form to her. Petitioner chose not to use the allotted week. Respondent used a majority of the time at the plant-wide meeting to explain the new attendance policy contained in the handbook. The new attendance policy adopted a no-fault point system intended to implement an objective, non-discretionary attendance policy that eliminated employee excuses and management discretion concerning employee absences. The new attendance policy assessed each employee a prescribed number of points that ranged from a half point to five points for each absence or tardy attendance depending on the nature of the absence or tardiness. The points prescribed for each type of offense were based solely on each employee's timecard. Supervisors had no discretion in the assessment of points or the implementation of discipline for excessive points. The attendance policy imposed three tiers of a progressive discipline plan based on accumulated points. The progressive discipline required a written warning when an employee accumulated five points for absences or tardiness within a six-month period. If an employee accumulated eight points within a six-month period, the progressive discipline plan required a second written warning and an hourly reduction in pay rate for a prescribed period. If an employee accumulated 10 points within a six-month period, the progressive discipline plan required termination of employment. The office manager calculated each employee's accumulated points each week when the office manager calculated the payroll due each employee. The office manager reviewed each employee's timecard to verify attendance and tardiness. When the office manager determined a particular employee had reached any one of the three tiers prescribed in the progressive discipline plan, the office manager implemented the prescribed discipline. Prior to March 13, 1995, Petitioner accumulated 5.5 points within a six-month period pursuant to the terms of the new attendance policy. Petitioner accumulated two points each for two absences on February 17 and March 3, 1995, for a total of four points for absences, and accumulated a half point for each of three tardy attendances on February 21 and March 6 and 9, 1995, for a total of 1.5 points for tardy attendances. On March 13, 1995, the office manager issued a first written warning to Petitioner in accordance with the requirements of the progressive discipline plan prescribed in the attendance policy. Petitioner's supervisor discussed the first written warning with Petitioner. Petitioner signed the written warning on March 14, 1995. Prior to April 26, 1995, Petitioner accumulated 8.5 points within a six-month period pursuant to the terms of the new attendance policy. Petitioner accumulated one half point each for two tardy attendances on March 14 and April 3, 1995, for a total of one point for tardiness, and accumulated one point each for two absences on April 4 and 26, 1995, for a total of two points for absences. Between February 17 and April 26, 1995, Petitioner accumulated 8.5 points for absences and tardiness. On April 26, 1995, the office manager issued a second written warning to Petitioner and reduced Petitioner's hourly rate of pay by one dollar for four weeks. Petitioner's supervisor discussed the second written warning with Petitioner, but Petitioner refused to sign the second written warning. Company policy required an employee's supervisor to involve a second manager whenever an employee refused to sign a written warning to ensure that the employee understood the disciplinary warning and to provide a witness to the employee's refusal to sign. When Petitioner refused to sign the second written warning, Petitioner's supervisor included the office manager to ensure that Petitioner understood the disciplinary action and in fact received the written notice of the disciplinary action. Prior to June 29, 1995, Petitioner accumulated 10 points pursuant to the terms of the new attendance policy. Petitioner accumulated one half point for a tardy attendance on May 2, 1995, and one point for being more than one hour late on June 28, 1995. Between February 17 and June 28, 1995, Petitioner accumulated 10 points in accordance with the new attendance policy. On June 28, 1995, the office manager issued a third written notice of disciplinary action to Petitioner. Respondent terminated Petitioner's employment in accordance with the terms of the disciplinary plan prescribed in the attendance policy. Between 1994 and 1995, Respondent terminated 12 employees including Petitioner. Three of the terminated employees were Caucasian, three were Hispanic, three were African-American, one was Asian American, one was American Indian, and Petitioner was Haitian. On June 28, 1996, Petitioner signed and dated a Charge of Discrimination. The Charge of discrimination alleges that Respondent discriminated against Petitioner on the basis of race and national origin when Respondent terminated Petitioner's employment on June 28, 1995. Petitioner did not file the Charge of Discrimination with the Commission within 365 days of the alleged violation. Petitioner did not file the Charge of Discrimination in person in Tallahassee, Florida on the date he signed the document. Rather, Petitioner mailed the Charge of Discrimination on June 28, 1996, from Orlando, Florida to Tallahassee. The record evidence does not show when the Charge of Discrimination was actually filed with the Commission. However, the actual date of filing is not material. Counting June 29, 1995, as the first day of the 365-day filing period, 366 days elapsed from June 29, 1995, through June 28, 1996, because February 1996 contained 29 days. Even if February 1996 contained only 28 days, Petitioner testified that he mailed the Charge of Discrimination on the 365th day. Therefore, Petitioner could not have filed the Charge of Discrimination within 365 days of the alleged discrimination on June 28, 1995. The Commission failed to determine whether there was reasonable cause for the Charge of Discrimination within 180 days of the date that Petitioner filed the Charge of Discrimination. If the Charge of Discrimination was filed five days after Petitioner mailed it on June 28, 1995, the Charge of Discrimination was filed on July 3, 1996. Section 760.11(3) required the Commission to issue its determination of cause no later than December 30, 1996. Contrary to the statutory requirements of Section 760.11(3), the Commission did not make any determination of reasonable cause regarding the Charge of Discrimination within 180 days from either June 28 or July 4, 1996. Nor did the Commission make any such determination within 1,120 days from June 28 or July 3, 1996. The Commission issued a Notice of Determination: No Cause on August 2, 1999. Petitioner did not timely file his request for hearing. When the Commission failed to determine reasonable cause no later than December 30, 1996, Petitioner had 35 days thereafter, or no later than February 3, 1997, to request an administrative hearing in accordance with Sections 760.11(4) and 760.11(7). Petitioner filed his request for hearing when he filed his Petition for Relief on September 7, 1999, approximately 945 days after February 3, 1997. On August 2, 1999, the Commission issued a Notice of Determination: No Cause. Assuming arguendo that the 35 days prescribed in Section 760.11(7) required Petitioner to file his request for hearing within 35 days of August 2, 1999, Petitioner still did not file a request for hearing within 35 days of August 2, 1999. Counting August 3, 1999, as the first day, the 35th day was September 6, 1999. Petitioner filed his Petition for Relief, in which he requested an administrative hearing, on September 7, 1999, the 36th day after August 2, 1999. Petitioner did not file his request for hearing within 35 days of either August 2, 1999, or February 3, 1997. Petitioner's claim is barred. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 10th day of March, 2000, 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 10th day of March, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Jules Itule, pro se 6225 Sunshine Street Orlando, Florida 32808 John M. Finnigan, Esquire Garwood, McKenna, McKenna and Wolf, P.A. Post Office Box 60 Orlando, Florida 32802-0060
The Issue Whether Respondent should be dismissed from employment with the Sumter County School Board pursuant to Chapter 221, Florida Statutes, as set forth in petition and notice of charges dated July 16, 1979, and amendment to petition, dated November 6, 1979. In this proceeding, Petitioner alleges that Respondent has committed acts rendering him subject to termination of employment as a member of the instructional staff of the School Board of Sumter County, and cancellation of his continuing contract. The alleged acts are willful absence from duty without leave, misconduct in office, and willful neglect of duty in violation of Chapter 231, Florida Statutes. The charges stem from three alleged instances in January and February, 1979, of improper use of sick leave. The petition and charges were filed by the District School Superintendent and were referred by the Petitioner to the Division of Administrative Hearings on August 28, 1979. Respondent filed a Motion to Dismiss the charges with the School Board prior to referral to this Division, alleging that he had not been given an opportunity to appear before the Board when it had considered the charges, and that the charges had been untimely filed. The motion was denied by the Hearing Officer on the merits and because Section 231.36(6), Florida Statutes, which governs such disciplinary actions, does not require any specific procedures in processing cases prior to a final determination. On November 6, 1979, Petitioner amended its petition to add an additional allegation of misuse of sick leave on January 12, 1979. Respondent opposed the amendment on the ground the allegation had not been brought before the School Board for action, and therefore should not have been referred to hearing. The Hearing Officer granted Petitioner's motion to amend the petition for the same reasons stated in the preceding paragraph. However, the scheduled date of final hearing was continued from November 29, 1979 to January 9, 1980 to provide Respondent an opportunity to adequately prepare his defense.
Findings Of Fact Respondent, Arnold James Constable, holds Florida Teaching Certificate Number 330507, Graduate Rank III, and is a member of the instructional staff of Petitioner School Board of Sumter County. He is employed pursuant to continuing contract as a physical education teacher at the North Sumter Intermediate School, Wildwood, Florida, and has been so employed since the beginning of the 1978-1979 school year. (Testimony of Respondent, Petitioner's Exhibit 1, Case pleadings.) On December 30, 1978, Respondent was arrested in Altamonte Springs and charged with petit theft of merchandise from a department store. Respondent informed the police booking officer that his occupation was "fast order cook" and that he had a twelfth grade education. Respondent was employed as a short- order cook during the Christmas holidays in 1978. On the evening of January 11, 1979, Respondent telephoned a substitute teacher, told her that he had gastro-intestinal flu, and asked if she would substitute for him at the school on the next day. She agreed and did substitute for Respondent at the North Sumter Intermediate School on January 12. Respondent also called the school secretary on the evening of January 11, and told her that he had severe stomach pains and would not be able to be at school the following day, but that he had arranged for a substitute teacher. On January 15th, Respondent told his school principal, Mrs. Josephine Strong, that he had been ill on January 12th and also during the preceding weekend. (Testimony of Davis, Respondent, Winkles, Strong, Petitioner's Exhibit 3.) On January 12, 1979, Respondent was present at the Seminole County Court, Sanford, Florida, for arraignment on the pending charge against him. He pleaded not guilty to the charge. Thereafter, he was notified to be present at the County Court on February 5, 1979 with jury trial scheduled to be held during that week. (Testimony of Horneffer, Kugler, Sundvall, Petitioner's Exhibits 8- 9.) On Sunday, February 4, 1979, Respondent asked his mother, Mrs. Elva Constable, to call the secretary at the North Sumter Intermediate School and tell her that he would not be present at the school the following day, but he said not to tell her that he was sick. Mrs. Constable called the school secretary that evening and told her that Respondent was sick and would not be at school the next day, and would need a substitute teacher. Respondent was not at the school on the following day, February 5, and a substitute teacher was obtained. On February 5, Mrs. Constable again called the school secretary and told her that her son was still sick, would not be at school on the following day, and would again need a substitute. Respondent was not present at the school on February 6, and a substitute was again obtained as a result of his absence. Mrs. Constable was aware of the pending criminal charge against her son in Seminole County. She admitted at the hearing that her son was not ill on February 5th and 6th, and that he lied to the school secretary concerning the reason for his absences because she was apprehensive that if school officials learned of such charge, Respondent might be suspended or dismissed from his employment. (Testimony of E. Constable, Winkles, Respondent, Petitioner's Exhibit 4.) On February 5, 1979, Respondent appeared in the Seminole County Court and his trial was scheduled for the following day. On February 6, he represented himself at a jury trial and was acquitted of the pending charge. During the trial, Respondent appeared to be in good health. (Testimony of Horneffer, Kugler, McClug, Cadavid, Petitioner's Exhibit 8.) The standard procedure to record absences for sick leave is for the school secretary to maintain a Sick Leave Compensation Application for the employee each school month. Absences for sick leave are recorded on the form which is signed by the employee and the school principal after the first absence. Subsequent absences are noted on the form but it is not signed again by the applicant. At the end of the month, the number of days absent are totaled, and the sick leave form is submitted to the County School Board office, along with the payroll. In January, 1979, Respondent's sick leave form reflects that he was absent on January 2 and January 12. The date of his signature thereon is January 2. In February, 1979, the form shows that Respondent was absent on February 5 and 6. His signature and that of the principal on the form are dated February 5 although they did not sign the form until some day subsequent to February 6. (Testimony of Winkles, Strong, Petitioner's Exhibits 3-4,190.) The collective bargaining agreement between Petitioner and the Sumter County Educational Association provides that instructional personnel may use up to a maximum of four days per year for personal leave chargeable to accumulated sick leave provided the request submitted for such leave contains a statement setting forth reasons to substantiate the nature of the extenuating circumstances requiring the employee to be absent from his duties. The agreement provides that a request for such leave should be submitted to the county office through the principal at least 2 hours prior to the effective date of leave. The form for such personal leave with pay used in the Sumter County school system provides that application should be submitted to the county office one week prior to the effective date of leave. The teaching association has sought in past years to eliminate the requirement that a reason be stated in an application for personal leave. Discussions between both county officials and teacher representatives during bargaining sessions have included the subject of sick leave abuse by employees in utilizing such leave for personal purposes. However, there is no evidence that such abuse was a common practice by county school board personnel. In January and February, 1979, Respondent had four days of personal eave available for authorized use. (Testimony of Winkles, Strong, Foster, Harner, Edwards, Petitioner's Exhibits 7, 10-11.) In 1976, while Respondent was teaching at Webster Elementary School, Webster, Florida, he received letters of admonition concerning improper paddling of students from Principal R. C. Foote. As a result of another paddling incident in February, 1978, the principal again censured Respondent in a letter, dated February 24, 1978. Further paddling incidents in early May, 1978, wherein Respondent purportedly used excessive force, resulted in a recommendation by the principal to the County School Superintendent, Joe R. Strickland, on May 8, 1978, that Respondent be suspended from teaching. Superintendent Strickland notified Respondent in a letter dated May 9, 1978, that he had requested the State Professional Practices Council to investigate the matter and make a recommendation concerning dismissal based on gross insubordination and conduct unbecoming a public officer. Thereafter, Respondent and a group of other teachers at Webster Elementary School brought allegations of misconduct against Principal Foote to the attention of the Professional Practices Council which ultimately led to an administrative proceeding and consequent disciplinary action against him. On June 15, 1978, Respondent was advised by the Superintendent that the School Board had assigned him to the North Sumter Intermediate School for the 1978-1979 school year. By letter of August 11, 1978, the Superintendent reprimanded Respondent and directed him to adhere to school board policies regarding corporal punishment in the future. (Testimony of Strickland, Respondent, Petitioner's Exhibits 14, 16-21) The Foote incident was the subject of wide notoriety in the county and led to controversy within the black-white community. Respondent and the other teachers, who had made charges against the principal and later testified at his administrative hearing, were the subject of much newspaper and television coverage during the period May-December, 1978. Respondent was identified in the media as the leader of the group, based on statements attributed to various individuals including members of the School Board. The group of teachers, including Respondent, was apprehensive concerning possible repercussions against them with respect to their employment as a result of their participation in the matter. Respondent and one of the other teachers received anonymous threatening phone calls at night during this period. (Testimony of Respondent, Stephens, M. Everett, Newell, Rigsby.) Respondent testified at the hearing and admitted that he had requested sick leave for his absences on January 12 and February 5-6, 1979, and that he was not ill on those particular days. His reason for not taking personal leave was to avoid the necessity of disclosing the fact of his arrest for petit theft in Altamonte Springs on a personal leave application. He feared that if his arrest became known, he would have been suspended from his instructional duties without pay, and having been previously suspended in 1977 on charges which later proved to be unfounded, he wished to avoid such a status again. He explained that he planned to have his mother call the school on February 4 and simply say that he would not be in the next day. Then, after his criminal trial, he intended to apply for personal leave for his absences. However, since his mother informed the school authorities that he was ill, Respondent was unable to later request personal leave. He also gave as a reason for taking sick leave for the absences that "he might as well use it" since he had to make court appearances. (Testimony of Respondent.) Respondent was employed as physical education instructor at Webster Elementary School from school year 1973-1974 until the summer of 1978, when he was transferred to North Sumter Intermediate School. During the five year period at Webster, Respondent received satisfactory performance evaluations from Principal Foote, although several evaluations noted that Respondent did not accept constructive criticism in the proper perspective and that he needed to follow instructions in a more satisfactory manner. Respondent testified that he and Foote had opposite views as to the manner in which children should be treated, and that they argued frequently. Several teachers who were among the group who joined in allegations against Foote are of the opinion that Respondent was dedicated, had excellent rapport with children, and was concerned for their welfare. A parent of one of Respondent's students at Webster is of the opinion that he was well liked and respected by his students. (Testimony of Stephens, Everett, Newell, Williams, Lee, Respondent, Respondent's Exhibit 6.) Respondent received a satisfactory evaluation rating at North Sumter Intermediate School during the school year 1978-1979. His principal is of the opinion that the Respondent "involved" the children better than his predecessors and that he had good relations with his students. Several teachers at North Sumter and a parent of students there are of the same opinion concerning Respondent's good relationship with his pupils. (Testimony of Strong, David, Rigsby, Wrigth, Knuth.) Superintendent Strickland considers Respondent to have been an average teacher. Bernard R. Shelnutt, Jr., county school board instructional supervisor, has written performance evaluations concerning Respondent for the past four or five years and has consistently rated Respondent as a fine teacher who works well with children. (Testimony of Strickland, Shelnutt, Respondent's Exhibit 6.) Respondent has been the county coordinator of the Special Olympic Program for handicapped children for a number of years. He has voluntarily spent a great amount of his own time in fund raising and supervision of the program with commendable results. His efforts in this respect were the subject of favorable testimony at the hearing from teachers and parents in the community. (Testimony of Respondent, Small, F. Everett, Smart.)
Recommendation That Petitioner School Board of Sumter County suspend Respondent Arnold James Constable from his employment as a member of the instructional staff for a period of six (6) months without pay, and effect forfeiture of compensation for his unauthorized absences from duty on January 12 and February 5-6, 1979, pursuant to Section 231.36(6) and 231.44, Florida Statutes. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of May, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1980. COPIES FURNISHED: C. John Conigilio, Esquire Post Office Box 26 Wildwood, Florida 32785 John F. Wendel, Esquire Post Office Box 5378 Lakeland, Florida 33803 Joseph Egan, Jr., Esquire Post Office Box 2969 Orlando, Florida 32802
The Issue Whether Respondent should be dismissed from his employment by the Pinellas County School Board as a painter in the School Board’s Maintenance Department for any or all of the following: excessive absenteeism, failure to report absences according to established procedures, failure to provide required medical documentation for absences, tardiness, insubordination, driving under the influence of alcohol and criminal conviction of driving while intoxicated?
Findings Of Fact Petitioner, the School Board of Pinellas County, is the authority that operates, controls and supervises all free public schools in the Pinellas County School District. Dwayne Goodrow has been employed as a painter in the Maintenance Department for the Pinellas County School Board since April 18, 1989. His work has always been satisfactory and sometimes better than satisfactory. Over the years of his employment, however, he has had chronic and serious attendance problems. Absenteeism, Attendance and Other Performance Factors On August 2, 1990, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." The memorandum stated that since the beginning of the school year, Mr. Goodrow had been absent an excessive number of times, including 17 hours of leave without pay. It informed Mr. Goodrow that, "[t]his absenteeism is unacceptable and you must make an immediate and permanent correction of this behavior." (Petitioner's Ex. No. 1) It further advised him that the memorandum would be placed in his file as a record that he had been counseled about the matter and that he fully understood that any reoccurrence of excessive absenteeism would result in a letter of reprimand. The memorandum warns: In the event you receive a letter of reprimand and the excessive absenteeism continues, you will become subject to more severe disciplinary action, which could include suspension or dismissal. Id. The memorandum is signed first by Mr. Goodrow and then by school board personnel: Mr. Goodrow's foreman and general foreman as well as the Superintendent of the School District. On October 5, 1990, Mr. Goodrow received a letter of reprimand for excessive absenteeism. The letter informs Mr. Goodrow of his General Foreman's belief that he has not realized the seriousness of his problem with absenteeism because in the interim since the August 2 memorandum he had been absent 29 and ½ additional hours. The letter warns, "if your absenteeism continues, it will be cause to recommend you for suspension or dismissal." Petitioner's Ex. No.2. It concludes, "Your signature below will acknowledge that you have received and understand this letter of reprimand." Id. Just as the August 2, 1990 memorandum, the letter is signed by Mr. Goodrow and school board personnel. On a Supporting Services Personnel Performance Appraisal signed by Mr. Goodrow January 18, 1991, he received a rating of unsatisfactory in the area of attendance and "needs improvement" in the area of punctuality. The remarks section of the appraisal states with regard to attendance, "[h]as received letters warning him of this, must be corrected." Petitioner's Ex. No. 17. The appraisal also states, "Dwayne has good painting abilities and knowledge, can be trusted to complete any job given him." Id. On June 10, 1991, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." With the exception of stating that he had taken 15 hours of leave without pay, the memorandum is identical to the August 2, 1990 memorandum. On a supporting Services Personnel Performance Appraisal dated February 14, 1992, Mr. Goodrow was again rated unsatisfactory under the performance factor of attendance. The remarks section reflects that he received counseling on December 19, 1991, for frequent tardiness but also that "[j]ob knowledge is adequate," "[c]ompletes assigned work on time," "[h]as the ability to be a self-starter," and "[c]an be a good team worker." Petitioner's Ex. No. 16. On September 15, 1994, Mr. Goodrow received an Attendance Deficiency Notification Letter. The letter states "[y]ou are required to bring in doctor's documentation of your illness on all further sick leave absence requests." Petitioner's Ex. No. 4. Although there is a place on the letter for Mr. Goodrow's signature and a notation that signature by the employee does not imply agreement with statements in the letter, the letter reflects that Mr. Goodrow refused to sign it. On October 3, 1994, Mr. Goodrow received a Record of Counseling. It noted deficiencies in his performance in that, INSUBORDINATION - You were told to furnish doctors excuses for any sick leave taken as per letter dated 9/15/94. On 9/26/94 you used 2 hours sick leave and failed to provide Doctor's excuse upon request of your Foreman. Petitioner's Ex. No. 5. To bring his performance to the satisfactory level, Mr. Goodrow was advised he would have to supply a doctor's documentation of illness whenever he took sick leave in the future. On February 17, 1995, Mr. Goodrow was rated as "Needing Improvement," in the area of attendance on his performance appraisal by his supervisor. The remarks section of the appraisal reflects that he was counseled for not following leave policy but also that "Dwayne has shown a more positive attitude recently, he has the potential to progress." Petitioner's Ex. No. 15. Furthermore, Mr. Goodrow was rated "better than satisfactory, in the area of "job knowledge." Consistent with this rating, in the remarks section, the following appears, "Dwayne exhibits his job knowledge by identifying problems and solving them . . . ." Id. The potential for progress noted in February did not last long. On March 24, 1995, Mr. Goodrow received a letter of reprimand for insubordination for failing to provide a doctor's excuse for sick leave absences contrary to previous instructions. The letter warned that failure to provide doctor's excuses in the future to justify sick leave will result in "further disciplinary action up to and including termination of employment." Petitioner's Ex. No. 6. Over the next 6 months, Mr. Goodrow began again to show progress. By early September, 1995, his attendance had "improved considerably," Petitioner's Ex. No. 7, and the requirement for a doctor's excuse for every sick leave absence was lifted. The procedure for reporting absences in the School Board's Maintenance Department is for employees to call in at least one-half hour prior to their normal starting time. There is an answering machine upon which a message can be recorded when there is no person available to take the call. Shortly after the lifting of the requirement for a doctor's excuse to justify sick leave, Mr. Goodrow, on Wednesday, September 13, 1995, was absent from work. He did not call in consistent with the procedure for reporting absences. He was absent again two days later. In addition to the failure to call in on September 13, 1995, Mr. Goodrow was absent without calling in on three other days in the fall of 1995: October 18 and 26, and November 9. Each time he failed to call in, Mr. Goodrow was verbally warned by Trades Foreman Al Myers of the requirement for calling in and was given a review of proper procedure. On December 14, 1995, Mr. Goodrow received a letter of reprimand for failure to follow proper procedure with regard to the four absences in the fall of 1995. The letter was the result of an agreement with Mr. Goodrow that the letter was the appropriate response by the maintenance department for the absences and failure to follow procedure. A stipulation was added, however, to the agreement: "[A]nother attendance incident within one year will result in recommendation for 'Time off without pay' or possible 'Dismissal'.". Petitioner's Ex. No. 7. The letter concludes, "Also, as of this date you are again required to provide medical proof of your [inability to attend work] . . . and you are required to notify your supervisor prior to the start of work shift you are going to be absent." Id. The letter is signed by Mr. Goodrow. On February 26, 1996, Mr. Goodrow and the School Board entered a Stipulation Agreement. The agreement reviewed Mr. Goodrow's performance appraisals for unsatisfactory attendance, and insubordination for taking sick leave without doctor's excuses. Furthermore, it stated that Mr. Goodrow: On December 15, 1995, . . . left work early without proper notification or required medical documentation. On January 3, 1996, Mr. Goodrow failed to report his absence according to established procedures, and on January 17, 1996, he failed to report his absence according to established procedures and requested 3.5 hours of sick leave without providing required medical documentation. Petitioner's Ex. No. 8. As an expression of regret and to affirm his commitment to notify his supervisor in the future regarding absences, Mr. Goodrow agreed to a three day suspension without pay effective March 19, 20 and 21, 1996. The stipulation also states that Mr. Goodrow, once again, understands that further problems could result in more serious disciplinary action, including dismissal. On April 16, 1996, Mr. Goodrow received a performance review finding him to have continued to demonstrate unsatisfactory attendance and judgment in that on March 6, 1996, he was late 3 hours with no explanation, on March 28, 1996, he was late one-half hour with no explanation, on April 3, 1996 he took eight hours sick leave without doctor's justification, on April 9, 1996, he was arrested and charged with DUI, and on April 11, 1996, he took eight hours sick leave without a doctor's justification. Driving While Intoxicated The job description for a painter employed with the Pinellas County School Board includes the requirement that the employee possess a valid State of Florida Class B commercial driver's license ("CDL"), to include "air brake" qualifications, and any other license as may be required by law. On March 30, 1996, while driving a motor vehicle off- duty, Mr. Goodrow was stopped by a law enforcement officer for failing to maintain his vehicle in a single lane of traffic. Deputy Howard Skaggs, a member of the Sheriff Department's DUI unit, was summoned to the scene to conduct filed sobriety tests to determine whether Mr. Goodrow was driving while intoxicated or under the influence of alcohol. Deputy Skaggs smelled a strong odor of alcohol on the breath of Mr. Goodrow, who, in turn, admitted that he had consumed at least six beers at two different taverns. While at the roadside, three field sobriety tests were performed by Deputy Skaggs, all of which Mr. Goodrow failed. Deputy Skaggs concluded that Mr. Goodrow was without doubt impaired. At the jail, Mr. Goodrow was asked to submit to a breathalyzer. He refused with the statement that he had had too much to drink and the test would only incriminate him. Mr. Goodrow was arrested. On September 17, 1996, Mr. Goodrow entered a plea of nolo contendere to the criminal offense of driving under the influence of alcohol. He was adjudicated guilty, placed on probation for 12 months, required to enroll in DUI school, fined $1000.00, and his driver's license was revoked for one year. Without a driver's license and a CDL, Mr. Goodrow no longer meets the job description of a painter in the School Board's Maintenance Department. Notification of Dismissal On June 19, 1996, Mr. Goodrow was notified that Superintendent Hinesley would recommend to the School Board that he be dismissed due to excessive absenteeism and insubordination. The DUI conviction, not having yet occurred, was not, of course, a factor in the superintendent's decision. Comparison with Other Employees Brett Paul, a painter in the Maintenance Department like Mr. Goodrow, also had attendance problems very similar to Mr. Goodrow's. He was suspended for three days without pay on the very same dates as Mr. Goodrow. Since the March suspension, however, unlike Mr. Goodrow, Mr. Paul's attendance has improved with the exception on an isolated instance in which his absence was due to a "major life event," the purchase of a house. He has not been convicted of DUI. Tom Appold was arrested for DUI during a time that he was employed as a painter in the School Board's Maintenance Department. After his conviction for DUI, he requested that he be allowed to transfer to another department, presumably because he could no longer meet the job description requirement that he hold a CDL. The request was honored and he is now employed by the School Board in another section of the Maintenance Department for which a CDL is not required. Mr. Appold, however, unlike Mr. Goodrow, has never been reprimanded or suspended for attendance problems. His attendance has always been found by the School Board's Maintenance Department to be within acceptable limits. Alcoholism and a Change of Heart Mr. Goodrow is an alcoholic. His excessive absenteeism, refusal to follow proper procedures with regard to work absences, insubordination, driving while intoxicated, arrest and conviction for DUI, and virtually every other work problem he had experienced over his seven years of employment with the School Board's maintenance department stems from alcoholism. For example, many of the days he missed at work were days following dart tournaments the night before at local establishments that served alcohol. Until the aftermath of his DUI conviction, Mr. Goodrow was ashamed and embarrassed to admit he suffers alcoholism. Today, with the assistance of professional counseling required as condition of probation for the crime of which he has been convicted, Mr. Goodrow is able to admit and freely did so at hearing that he is an alcoholic. The ability to make this admission is a major step forward for Mr. Goodrow. It is unfortunate that Mr. Goodrow's ability to face up to his problem has come so late. Had he admitted the condition when he was encountering problems with attendance at work, there were a number of options available to him and the School Board short of poor performance appraisals, letters of reprimand and suspension. As Dr. Martha O'Howell , Administrator of the School Board's Office of Professional Standards testified, We would have talked to him about the extent of that drinking problem. We would have referred him to . . . Cigna, the health provider. At that time, there was no formalized EAP [Employee Assistance Program] in place that the employee could go directly to, but there was . . . substance abuse counselling (sic) through Cigna that was available. We would have referred him or put him in contact with our risk management department. We would have encouraged him to take a leave of absence while he was seeking treatment, (Tr. 78). depending on the nature of the treatment, the severity, the length and so forth. We would have worked with him to provide a medical leave of absence if that had become necessary. If Mr. Goodrow's suspension were lifted and his employment was reinstated, the School Board's Employee Assistance Program would be available now to help him cope with his alcoholism. School Board personnel are not willing to make such a recommendation, however, in light of all that has occurred in Mr. Goodrow's case. A supervisor in the Maintenance Department expressed concern over the precedent that would be set if Mr. Goodrow were allowed to return to work, particularly in the minds of employees who might think that conduct like Mr. Goodrow's resulted in no meaningful consequences on the part of the School Board. Contrary to the concern of the Maintenance Department, the action taken to date, a suspension without pay that has been in effect now for more than eight months, has resulted in very definite consequences to Mr. Goodrow. In the main, he has been unemployed. He has made reasonable efforts to gain employment. But the loss of his driver's license has held him back. At the time of hearing, what little money he had been able to earn from the time of his suspension was certainly far below what he would have earned had he not been suspended from the employment he had held for more than seven years.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the suspension of Dwayne Goodrow be sustained by the Pinellas County School Board but that he be reinstated without back pay if adequate conditions for his return to work can be agreed-to by the parties. If conditions of reinstatement cannot be agreed-to, Mr. Goodrow should be dismissed. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1997. COPIES FURNISHED: Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 4th Street Southwest Largo, Florida 33770-2942 Robert G. Walker, Jr., Esquire Pinellas County School Board Attorney 1421 Court Street, Suite F Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board Attorney 301 4th Street Southwest Largo, Florida 34649-2942 Elihu H. Berman, Esquire Berman & Hobgood, P.A. 1525 South Belcher Road Clearwater, Florida 34624
The Issue Whether there is just cause to terminate Respondent's employment with the Miami-Dade County School Board.
Findings Of Fact The Parties Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this proceeding, Respondent was employed by Petitioner as a school security monitor at Crestview Elementary School in the Miami-Dade County School District.1/ Respondent's employment is governed by the collective bargaining agreement between Petitioner and United Teachers of Dade ("UTD"). Pursuant to Article XXI, Section 3.D of the UTD contract, Respondent may be discharged only for "just cause," which includes, but is not limited to, "misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude." 2009-2010 School Year During the 2009-2010 academic year, Respondent was assigned to Crestview Elementary School ("Crestview") as its school security monitor. At the beginning of the year, Melissa Mesa, Crestview's principal at that time, provided Respondent with a schedule that detailed her responsibilities and duties as a monitor. In particular, Ms. Mesa advised Respondent that she was required to report to work at 7:30 a.m. and ensure that students unloaded from the buses safely. Respondent was further informed that she was required, among other tasks, to watch the students in the cafeteria during breakfast and lunch, direct visitors to the front office, patrol the hallways, and ensure that Crestview's gates were locked. Finally, Respondent was clearly instructed that her workday did not end until 3:30 p.m. Almost immediately, Respondent began to exhibit a pattern of excessive absenteeism. Specifically, during her first month of work, Respondent was absent three times. Over the next two months (October and November), Respondent was absent without authorization on eight occasions. In response to these repeated absences, Ms. Mesa provided an "Absence from Worksite Directive" to Respondent on December 3, 2009. In the directive, Ms. Mesa informed Respondent, in relevant part, that "[a]ttendance and punctuality are essential functions of [the] job . . . . [and that Respondent's] absence from duties adversely impacts the educational / work environment, particularly in effective operation of [the] worksite." The directive further provided that failure to be "in regular attendance and on time" would be considered insubordination and a violation of professional responsibilities. Notwithstanding the December 3, 2009, directive, Respondent failed to report for work——without authorization——on: December 17, 2009; January 11, 12, and 19, 2010; and February 11, 12, and 16, 2010. On February 19, 2010, a conference for the record was held with Respondent to discuss her repeated, unexcused absences. Three days later, Respondent was provided with a summary of the conference for the record, as well as a written reprimand from Ms. Mesa. Despite the February 19, 2010, meeting and the issuance of a reprimand, Respondent missed an additional three days of work, without authorization, over the next three months. In all, Respondent accumulated in excess of 30 absences (18 of which were unexcused) during the 2009-2010 school year, which adversely affected Crestview's operations. In particular, Ms. Burch-Oliver, an assistant principal at Crestview, was often required to assume Respondent's duties on the days Respondent failed to report for work. 2010-2011 School Year On August 20, 2010, Sabrina Montilla, Crestview's new principal, met with Respondent and explained her schedule and duties——that were identical to Respondent's responsibilities during the previous year——as a security monitor for 2010-2011. Notwithstanding the August meeting, Respondent was absent a total of nine times (three of which were unauthorized) between September 8, 2010, and December 8, 2010. During that same span, Respondent left early three times and was tardy on 12 occasions. As a result, a conference for the record was held on December 14, 2010, to discuss Respondent's attendance and her noncompliance with worksite directives. Ms. Montilla issued a written reprimand to Respondent on the following day. Nevertheless, between December 14, 2010, and April 11, 2011, Respondent was tardy 12 more times, often by substantial amounts of time (on three occasions, Respondent was at least 90 minutes late). In addition, Respondent missed two and one-half days of work without authorization: a half day on March 25 and full days on January 31 and April 6. A conference for the record was scheduled for April 22, 2011, to discuss, once again, Respondent's attendance issues. Respondent failed to appear, however, and was issued a reprimand shortly thereafter. Regrettably, Respondent's noncompliance with her work schedule continued. Specifically, Respondent was tardy on May 2, 9, 12, and 18, 2011, left work early on May 11, 2011, and was absent without authorization on May 3, 12, and 19, 2011 (absent a full day on May 3, and half days on the other dates). Subsequently, on May 24, 2011, a conference for the record was held with Respondent at Petitioner's Office of Professional Standards. During the conference, Respondent was provided with, but declined, an opportunity to respond to the allegations of gross insubordination, noncompliance with professional responsibilities, and violations several School Board Rules. On August 23, 2011, Respondent was informed that the Superintendent of Schools would make a recommendation at the September 7, 2011, School Board meeting that she be dismissed from her employment as a security monitor. Respondent's Final Hearing Testimony During the final hearing in this cause, Respondent attributed her failure to adhere to Crestview's schedule during the 2009-2010 school year to the fact that she was pregnant with her third child——she gave birth on June 13, 2010——and frequently suffered from morning sickness. Respondent further testified that as a single parent with two other children (ages five and eight), she was responsible for dropping her middle child off at Charles Drew Elementary School——located some distance from Crestview——at the same time that she was scheduled to report for work. While Respondent indicates that, "in the beginning," she was paying "someone" to take her child to work, the person she hired would often leave her in the lurch. However, Respondent failed to explain why she was unwilling or unable to find a more reliable individual to take her child to school. With respect to the 2010-2011 school year, Respondent testified that her attendance problems continued due to her newborn's medical issues———asthma and heart murmurs——and the need to transport her baby to daycare. Although Respondent concedes that School District provided her with information about Family Medical Leave Act, Respondent admits that she made no effort to secure medical leave to be with her son. Finally, Petitioner testified that her childcare issues have been solved by her use of a daycare facility near Crestview and the transfer of her daughter to Crestview from Charles Drew Elementary. As a result, Petitioner believes that should her employment be reinstated, she would now be able to comply with the attendance requirements of her position. While the undersigned credits the portions of Respondent's testimony discussed above, which no doubt reveal that she was dealing with challenging issues as a single parent, the fact remains that Respondent failed——on repeated occasions—— to reconcile the tension between her family responsibilities and the demands of her employment. Although Respondent made a decision that many parents would in her situation (to prioritize family over her job duties), the fact remains that she made a deliberate, knowing choice to be absent and tardy on numerous occasions during two different school years. Ultimate Findings The greater weight of the evidence establishes that Respondent is guilty of gross insubordination. The greater weight of the evidence establishes that Respondent is guilty of failing to behave in such a manner that reflects credit upon herself and the school system. The greater weight of the evidence establishes that Respondent is guilty of violating the School Board's Code of Ethics.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding Respondent guilty of Counts I, II, and III of the Notice of Specific Charges. It is further recommended that the final order terminate Respondent's employment, or, in the alternative, impose a penalty other than Respondent's dismissal. DONE AND ENTERED this 12th day of January, 2012, in Tallahassee, Leon County, Florida. EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2012.
Findings Of Fact Respondent, Otis Ward Carroll held a Florida Teacher's Certificate No. 169701, which was valid from July 1, 1972 until June 30, 1982. As a certificate holder Respondent was disciplined on August 7, 1979, when the State Board of Education entered an Order adopting a set of stipulated Findings of Fact and Conclusions of Law. The Board's Order suspended Mr. Carroll's license to teach for sixty (60) days beginning on June 15, 1979. This discipline resulted from Mr. Carroll's numerous absences from school due to his drinking alcohol. The stipulation recited several arrests and numerous admissions to the Detox (detoxication) Center for disorderly intoxication. These instances occurred between 1976 and 1978. According to the stipulation Mr. Carroll voluntarily entered an alcoholic treatment program on December 4, 1978 for a period of six (6) months. During all times pertinent to the Amended Administrative Complaint Mr. Carroll was employed as a full-time science teacher by the School Board of Duval County at Fletcher Senior High School. On May 18, 1979, the Assistant Superintendent for Personnel of the School Board of Duval County, Florida, sent a letter to Mr. Carroll informing him that he would be employed for the next school year, but he was warned that, Any further indiscretion, however, such as public drunkeness or drinking while on the job will be reported to the Professional Practices Council and could result in a recommendation for your dismissal in accor- dance with the Duval County Teacher Tenure Act. May 1980 Absence During the 1979-80 school year, Mr. Carroll was absent from his teaching duties without prior approval for approximately one week in May, 1980. Before and during his absence Mr. Carroll failed to give notice of his absence as required by school policy. Upon his failure to appear for teaching as scheduled his principal, Dr. Knight, became concerned about his welfare and sent Mr. Daugherty, his administrative assistant, to look for Mr. Carroll. Mr. Carroll could not be found during the school day, but after work Mr. Daugherty, who was going to the grocery store with his wife, saw Mr. Carroll walking down the street. He was "in real bad shape" and was redolent of alcohol. When Mr. Carroll was offered a ride home he declined stating, "No, I want to go to the lounge." Mr. Daugherty then took Mr. Carroll to the Jax Liquor Store Lounge and promptly found a police officer. Mr. Daugherty explained his concern about Mr. Carroll to the officer. The officer picked Mr. Carroll up from the lounge and transported him to the Detox Center. Mr. Daugherty, who is now a school principal in Okeechobee, Florida, would not, if requested, hire Mr. Carroll as a teacher in his school. He believes that due to Mr. Carroll's drinking problem he could not be relied upon to appear as scheduled for teaching his classes. Dr. Knight has the same opinion. April 14, 1981 Arrest During the afternoon of April 14, 1981, a passing motorist notified Officer Russell of the Duval County Sheriff's Department that a man was staggering down the middle of East Point Road in Jacksonville, Florida. The patrolman went to the location described, and observed Mr. Carroll walking down the centerline of the street. Mr. Carroll smelled of alcohol and was unsteady on his feet. Because of his condition he was transported by Officer Russell to the Detox Center where he was later arrested. July 21, 1981 Arrest At approximately 1:15 a.m. on July 21, 1981, Officer Nixon, a patrolman with the Duval County Sheriff's Department, received a complaint from Mr. Carroll's sister that he was creating a disturbance in her home. She reported that Mr. Carroll was drunk and she wanted him to remain in the house because she thought his condition was too dangerous for him to be out in public. Upon his arrival the police officer attempted to talk with Mr. Carroll but he refused to respond at all. He was quite intoxicated and had to be physically assisted out of the house and into the patrol car. Mr. Carroll was charged with disorderly intoxication and taken to the Detox Centers. Spring 1981 Absences According to Fletcher High School policy teachers were required to either give advance notice of their absences or if such notice was not possible to call the school secretary before 7:00 a.m. of the date on which they would be absent. This notice was required because substitute teachers needed to be obtained as rapidly as possible. If a teacher is too late in giving notice of his absence, it is impossible to obtain a substitute. Other teachers are then required to cover for the absent teacher with the consequential disruption of their omen teaching schedules. During the months of February and March, 1981, there were numerous times when Mr. Carroll did not report his absence as required. He either gave no notice or the notice he gave came after 7:00 o'clock. As a result of his unauthorized absences it was discovered that Mr. Carroll left either inadequate lesson plans or no lesson plans at all for the substitutes who appeared to instruct his class. The failure of Mr. Carroll to timely submit his lesson plans substantially interfered with the ability of the substitutes to teach the appropriate subject material. During one of his absences due to drinking student grades for the third nine-week period were due. Mr. Carroll did not leave any grades with the school administration to be given in his absence. Initially, the administration was unable to obtain the grades from Mr. Carroll. When it appeared that no grades would be available, students were told that they would receive an "I" (Incomplete) grade. This possibility caused much confusion and consternation among the students' parents. It resulted in numerous explanations to them by Mr. Carroll's principal. At the very last moment Mr. Carroll's mother delivered his grade book to the school. The "I's" which were previously placed on the students' report cards had to be removed and the correct grades were then posted. Respondent's unauthorized absences were the result of his being an alcoholic. Frequently Mr. Carroll was unable to go to school because he was in the Detox Center. Finally Mr. Carroll was given a leave of absence beginning on April 21, 1981 in order to seek treatment for his problem. Effectiveness Mr. Carroll's effectiveness as a teacher has been seriously reduced by his alcoholism. He cannot be depended upon to appear at the required time for the instruction of his classes. In two instances he appeared at school with the odor of alcohol on his breath. 1/ Knowledge of and rumors about his alcoholism have reduced the respect accorded him by students at Fletcher High School. On March 12, 1981 Mr. Carroll received an official reprimand from his principal, Dr. Jim Ragans. The reprimand noted that Mr. Carroll had been delinquent in giving notice of his absences to the school administration. The reprimand also noted deficiencies in Mr. Carroll's lesson plans and his completion of the student attendance register. He was warned that any reoccurrences of the enumerated delinquencies would result in a recommendation for his dismissal from teaching.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission enter a Final Order revoking the teaching certificate 2/ of Otis Ward Carroll for a period of two years pursuant to Section 231.28, Florida Statutes, and that once the revocation period has expired he be recertified only upon an affirmative demonstration that he is rehabilitated from alcoholism. DONE and RECOMMENDED this 3rd day of September, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1982.
The Issue Whether Respondent should be dismissed from her employment as a teacher in the Orange County Public Schools based on charges of incompetency and gross insubordination, as set forth in the letter of L. Linton Deck, Jr., dated August 16, 1977.
Findings Of Fact Respondent Ethel R. Jones has been an elementary school teacher for twelve years. She taught a year in Georgia before obtaining her degree in commercial education at Bethune-Cookman College at Daytona Beach, Florida, in 1960. After teaching for one year at Hungerford Elementary School in Eatonville, Orange County, Florida, in 1963, she pursued further studies and received her certification in elementary education. After teaching several years in various Orange County and Highlands County public schools, she became employed at Ocoee Elementary School, Ocoee, Florida, in 1970 and taught there for seven years through the 1976-77 school year. She was on annual contract for the first four years and then was granted a continuing contract the following year. She taught a sixth-grade class her first year at Ocoee and then became a fourth-grade teacher until the 1976-77 year when she again instructed a class of approximately 31 sixth-grade pupils. (Testimony of Respondent) Respondent served under three principals at Ocoee from 1972 to 1977. School records reflect that from 1973 two of the principals each rendered two annual performance reports on respondent termed "Assessment of Instruction." During the first year of each of these periods, the principals noted that respondent needed improvement in maintaining good rapport with students, parents and co-workers. During the second year of each period, each principal rated the respondent satisfactory in all respects. The third principal, Maxie Cinnamon, assumed her duties at Ocoee during the 1976-77 school year. (Petitioner's Composite Exhibit 1) During the first month of the school year, Principal Cinnamon received approximately twelve-complaints about the respondent from parents of children in her class. Most of these complaints dealt with apprehensions concerning respondent's teaching ability based on her prior performance with fourth-grade students. As a result, Cinnamon visited the respondent's classroom on September 9, 1976, and observed class instruction for several hours. She noted a number of deficiencies in the quality of respondent's teaching. These included unfamiliarity with the definitions of common words, inadequate preparation and lesson plans, inappropriate grouping of students and poor communication with students. These observations were set forth in great detail in a written document, dated September 14, 1976, which was provided to respondent as recommendations for improvement. Additionally, an unofficial "Assessment of Instruction" was rendered by the principal that indicated need for improvement in various areas. (Testimony of Cinnamon, Petitioner's Composite Exhibits 1, 7) During the course of the school year, the principal continued to receive complaints from parents and requests that their children be transferred from respondent's class. These complaints included reports that respondent was an inadequate teacher and that her disciplinary methods were inappropriate. In addition, no improvement in the previously-noted areas of deficiency had been observed by the principal. A number of conferences between Cinnamon and the respondent transpired in the fall of 1976 in an attempt to resolve these continuing problems, but achieved little or no success. Cinnamon directed a number of memorandums to respondent pointing out problem areas and suggesting remedial steps. She also suggested special courses and seminars that respondent could attend to improve her classroom instruction and to achieve a better relationship with parents and students. The respondent referred students to the principal's office on disciplinary matters some 35 times during the school year. For the most part, these referrals involved male students who were low achievers and either disrupted the classroom or failed to complete lesson assignments. (Testimony of Cinnamon, Respondent, Petitioner's Exhibits 8,9, 11-14) In December, 1976, Principal Cinnamon requested the Professional Practice Council of the State Department of Education to make a professional reviewer available to observe respondent's classroom performance and provide any necessary suggestions or recommendations for improvement. Thereafter, on January 31 and February 1, 1977, Mrs. Gretchen M. Olcott, a classroom teacher from Pinellas County, was sent to Ocoee Elementary School and conducted a "remediation review" concerning respondent. She rendered a report of her observations which was furnished to the respondent on March 11, 1977. The report contained many critical remarks concerning the quality of respondent's teaching ability and included detailed recommendations and suggestions for improvement. Most of Olcott's observations paralleled closely the previous deficiencies noted by Cinnamon and dealt primarily with inadequate lesson plans, lack of organization, poor student behavior patterns, lack of effective use of teaching materials and equipment, and the need to establish clear objectives and long-range goals. Also on March 11, Cinnamon wrote a letter to the respondent again listing her deficiencies and providing recommendations in that regard. The letter informed the respondent that unless she showed substantial improvement in all the noted areas by May 1, 1977, it would be necessary that she be recommended for dismissal to the Superintendent of the Orange County Schools. (Testimony of Cinnamon, Petitioner's Exhibits 3-5) During the ensuing weeks, Cinnamon was of the opinion that respondent had not materially improved her shortcomings despite efforts to assist her. At a conference in March, she told respondent that if she made no substantial improvement by May 23, she would recommend dismissal. She also requested that another reviewer be provided by the Professional Practices Council. Mr. Richard Svirskas visited respondent's classroom from May 11 to 13, 1977, for the Professional Practices Council. His report was similar to that of the previous reviewer and it concluded that respondent was far below average in ability in comparison with the majority of teachers known to the reviewer. (Testimony of Cinnamon, Petitioner's Exhibit 6) As a result of the reviewers' reports and respondent's failure to show improvement, Principal Cinnamon, on June 7, 1977, recommended to the Superintendent of Orange County public schools that she be dismissed from employment. Based on this recommendation, the Superintendent, by letter of August 16, 1977, charged the respondent with 14 areas of incompetency and three instances of gross insubordination. On August 18, 1977, the Superintendent recommended to the School Board of Orange County that respondent be suspended without pay pending a hearing on the charges if requested. The school board approved the recommendation and suspended the respondent without pay. Respondent thereafter requested a hearing in the matter. (Testimony of Cinnamon, Case File) Respondent testified as a witness and maintained that she had received no support during the year from the school administration and that she could not please Principal Cinnamon in any respect. She feels that she was the victim of a conspiracy between Cinnamon and parents of her students, and that the independent reviewers sent to assess her classroom performance were "against" her because they had met with Cinnamon in private during their visit. The respondent further implied that Cinnamon had a dislike for her because she was the only black teacher in the intermediate level. No black students were enrolled at Ocoee Elementary School during the 1976-77 school year, but there were five black teachers including the respondent. The respondent further claimed that she had done her utmost to follow the recommendations for improvement made to her by Cinnamon and the reviewers, but that she received no assistance from the administration in this regard. Further, she claimed that she was unable to enroll in certain reading, student discipline, and teacher effectiveness courses for various reasons; however, she did take a mathematics course at her own expense and attended several seminars. Although Cinnamon had testified that she had instructed respondent not to set up learning centers in her classroom because of her lack of organizational ability, the respondent denied that she was given such instructions. She testified that she established this system of instruction because Cinnamon had recommended it to her. She also denied that she had placed children in the halls for disciplinary reasons, or deliberately omitted to teach reading and math on each school day, contrary to instructions, as claimed by Cinnamon. (Testimony of Jones, Cinnamon) Based on the evidence presented at the hearing, it is found that during the 1976-77 school year: Respondent failed to make adequate plans and set definite objectives for her class- room instruction. Respondent failed to provide learning situations consistent with students' abilities. Respondent failed to exhibit adequate command of the subject matter that she taught. Respondent failed to communicate clearly and effectively with the students. Respondent failed to control the class so that a positive learning environment was created and maintained. Respondent failed to adequately pursue her professional growth and to seek ways of correcting identified deficiencies. It is further found that there is insufficient evidence to establish that the respondent committed the following alleged acts of gross insubordination: Suspended children from class by placing them in the hall and otherwise leaving them unsupervised after being specifically told not to do so. Failed to teach reading and math on each school day as specifically instructed to do. Failed and refused to maintain and utilize a plan book as instructed by the principal. It is further found that insufficient evidence was presented to establish that the respondent was a victim of a conspiracy by the principal of Ocoee Elementary School or anyone else, or that any racial discrimination was practiced against her.
Recommendation That respondent Ethel R. Jones be dismissed from employment by the School Board of Orange County, Florida, for incompetency, pursuant to Section 231.36(6), Florida Statutes. Done and Entered this 5th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Howard W. Cooper, Esquire 101 South Lake Avenue Orlando, Florida 32801 John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801
The Issue The issue is whether Respondent is guilty of willful absence from duty, in violation of Section 1012.67, Florida Statutes; willful neglect of duty, in violation of Sections 447.209, 1012.22(1)(f), and 1012.40, Florida Statutes; gross insubordination, in violation of Sections 447.209, 1012.22(1)(f), and 1012.40, Florida Statutes; and incompetence, in violation of Sections 447.209, 1012.22(1)(f), and 1012.40, Florida Statutes.
Findings Of Fact During the 2001-02 school year, Petitioner employed Respondent as a part-time cafeteria worker at Ludlam Elementary School. Except for the manager, all food workers at the school are part-time employees. The absence of any of these workers, especially without notice on the morning of the nonappearance, places a considerable burden on the other cafeteria workers and jeopardizes the provision of what may be the first meal of the day for many students. By January 24, 2002, Respondent had been absent 16 days, including the four consecutive days preceding Christmas vacation, four of five days in mid-January, and January 22-24, 2002. Responding to this problem, the school principal sent Respondent a memorandum dated January 24 and ordering her to notify the principal of when Respondent intended to return to work and use leave procedures in the future. On the same date, the principal sent another memorandum to Respondent ordering her to communicate directly to the principal when Respondent intended to be absent and document future absences with medical excuses. Respondent signed this memorandum, indicating receipt. On Sunday, January 27, 2002, Respondent telephoned the principal and told her that Respondent would be returning to work the following day. The next day, when Respondent appeared at work, the principal talked to her about Respondent's professional responsibilities and offered to refer her to the Employee Assistance Program for help with a problem with alcohol that Respondent said that she had. Respondent declined the offer and said she would follow the principal's orders. The next day, Respondent arrived to work late. The following day, Respondent did not report to work or call in to notify the school of her absence. The two succeeding days, Respondent did not report to work, but she called the principal to say that she was in the hospital. However, on the last day of the week, Respondent did not report to work and did not call in. On February 11, 2002, the principal conducted a conference-for-the-record (CFR) with Respondent. Respondent said that she had been a recovering alcoholic for 15 years and had been encountering problems with alcohol since October. The principal again offered a referral to the Employee Assistance Program, but Respondent said that she was already in counseling. The principal warned Respondent that further noncompliance with her order would be gross insubordination. On February 19 and 20, 2002, Respondent was again absent and again failed to notify anyone at school of her absence. On the next day, the principal sent another warning memorandum to Respondent. On February 26 and March 11, 2002, Respondent again missed work and again failed to call anyone at the school. Respondent never provided medical documentation for these absences. Also, on March 5 and 8, 2002, Respondent was tardy without calling in to say that she would be late. On March 11, Respondent also failed to attend an appointment that the principal had scheduled for her with the Employee Assistance Program. Respondent told the principal that she would reschedule the appointment, but later failed to appear at this appointment. On September 20, 2002, the district office conducted a CFR. Out of 18 workdays in the new 2002-03 school year, Respondent had already missed four. For the prior school year, Respondent had been absent 47 times and late 11 times. Of the 47 absences, Respondent never called the principal 23 times and never even called the school 11 times. Respondent at first claimed that she had only been absence once that school year, but later admitted to four absences. She then explained that two of the absences were due to a job interview and an accident at the train station. On January 16, 2003, Petitioner advised Respondent that it had suspended her and initiated dismissal proceedings for the reasons set forth above. Petitioner has proved that Respondent is guilty of willful absence from duty without leave by repeated absences without leave and without notification on the day of the absence; willful neglect of duty by repeated absences, repeated failures to advise the school of absences, and repeated failures to provide medical documentation for absences; gross insubordination for the repeated disregard of the principal's order to call in before absences and document absences; and incompetence for the failure to perform her job duties adequately.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 March, 2003. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Denise Wallace Legal Department The School Board of Miami-Dade County 1452 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carleen Braddy 1884 Northwest 53rd Street Miami, Florida 33142
