10-003027TTS Manatee County School Board vs. Michael L. Seppala Status: Closed Recommended Order on Friday, August 20, 2010.

Summary: Petitioner proved by a preponderance of evidence that Respondent was guilty of gross insubordination and absence without leave. Termination of employment is warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-3027

)

MICHAEL L. SEPPALA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on July 28, 2010, in Bradenton, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Martin, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206-9069

For Respondent: Robert E. Turffs, Esquire

Robert E. Turffs, P.A.

1444 First Street, Suite B

Sarasota, Florida 34236

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists to

terminate Respondent's employment with Petitioner based on

either of three factors: fitness for duty; being absent without

leave; and gross insubordination, as defined by Section 1012.67,

Florida Statutes (2009), and Florida Administrative Code Rule

6B-4.009(1) and (4).

PRELIMINARY STATEMENT

On July 8, 2009, Tim McGonegal, Superintendent of Manatee

County Schools, issued a letter to Respondent, Michael L.

Seppala, indicating that Respondent was not fit for duty and

that he must undergo psychological testing and psychotherapy

before returning to work. That letter was followed up by a

letter dated July 16, 2009, advising Respondent that failure to

comply with the directive to undergo psychotherapy would

constitute gross insubordination. The superintendent then

issued an Administrative Complaint on April 21, 2010,

recommending termination of Respondent's employment, effective

May 25, 2009. Respondent requested a formal administrative

hearing on the issues stated in the Administrative Complaint.

At the final hearing, Petitioner, Manatee County School

Board ("School Board"), called the following witnesses:

Debra A. Horne, specialist with the Professional Standards

Office; Debbie Amerson, retired custodian; Francisco "Paco"

Quijano, head custodian; Maria Gutierrez, lead custodian;

Dr. Mary Cantrell, director of Manatee Technical Institute;

Nancy Paradise, employee benefits coordinator; Rebecca Wells,

director of Human Resources; and Timothy McGonegal,

Superintendent of Manatee County Schools. Petitioner's

Exhibits 1 through 13 were admitted into evidence without

objection. Respondent testified on his own behalf and offered

no exhibits into evidence. (All hearsay evidence was admitted

subject to corroboration by competent, non-hearsay evidence. To

the extent such hearsay was not corroborated, it will not be

used as a basis for any finding herein.)

The parties advised the undersigned that a transcript of

the final hearing would not be ordered. They were given ten

days from the date of the final hearing to submit proposed

recommended orders. Each party timely submitted a Proposed

Recommended Order, and both parties' submissions were given due

consideration in the preparation of this Recommended Order.

Unless specifically stated otherwise herein, all references

to Florida Statutes shall be to the 2009 codification.

FINDINGS OF FACT

1. Petitioner is the School Board responsible for hiring,

firing and overseeing all employees at Manatee Technical

Institute (the "School"), which is a post-secondary training

center for adults. The School provides a variety of vocational

training opportunities for adults.

2. At all times relevant hereto, Respondent was a

custodian at the School. Respondent was at all times material

hereto working the night shift. Respondent is a former

construction worker whose business suffered from the bad

economy. He took the position as a custodian at the school,

even though it paid less than he had been making in

construction.

3. When Respondent first began working at the School, he

seemed to get along well with his co-workers and did not seem to

have any problems. Respondent considered his co-workers to be

his friends and they seemed to like him. However, as time

passed Respondent seemed to become frustrated and angry. His

wife was in poor health, and Respondent was having financial

difficulties, including the foreclosure of his home.

4. Respondent's primary co-workers were Amerson, Quijano,

and Gutierrez, although there were approximately ten custodians

in all on the main campus of the School. Gutierrez was the lead

custodian on the night shift, making her Respondent's immediate

supervisor. Quijano was the head custodian. Both Gutierrez and

Quijano are Hispanic; Respondent is a Caucasian male.

5. In January 2009, Respondent filed a complaint against

Quijano claiming racial discrimination. The complaint was

investigated by the Office of Professional Standards, and the

complaints were deemed unfounded. By way of a letter dated

March 19, 2009, Respondent was notified that his equity

complaint against Quijano was being closed. (A final

investigative report was eventually published on May 11, 2009.)

6. On March 26, 2009, just a week after being notified

that his complaint against Quijano was deemed unfounded, a

custodian's meeting was held at the School. Such meetings were

fairly common occurrences and would be scheduled so that all

custodians could attend. Quijano called the meeting and

addressed all of the custodians in attendance. Each custodian

was handed a sheet of paper which outlined various issues to be

addressed within that custodian's realm of responsibility. Some

custodians had several items on their lists, others had only a

few. Respondent says that his list was the longest of all the

custodians.

7. When Respondent was handed his list of issues at the

meeting, he was not pleased. He felt as though he was being

chastised more than his co-workers. Respondent crumpled up the

sheet of paper and tossed it to the floor. This action was

witnessed by the other attendees. (Respondent maintains that he

did not crumple and throw the paper, but the testimony of other

witnesses as to that event is more credible.)

8. Upon exiting the meeting at its conclusion, Respondent

walked down a hallway leading out of the building. Amerson was

walking down the hallway ahead of Respondent, but she could hear

him mumbling and making noise. At one point, Amerson heard a

loud noise as Respondent hit a metal support pole in the

hallway. To her perception, Respondent had hit the pole

extremely hard. Respondent denies he hit the pole, but

Amerson's testimony is more credible. Further, Quijano

testified that Respondent had a habit of hitting and kicking

objects almost on a daily basis. That fact lends credence to

Amerson's statement, as well.

9. As Respondent caught up to Amerson in the hallway, the

following conversation occurred:

Amerson: "What"? (Because she had not heard

Respondent's initial comment.)

Respondent: "I repented of all my sins last

week."

Amerson: "Well then, God forgave you."

Respondent: "God isn't going to forgive me

what I'm gonna do now. It's personal. I'm

gonna do personal things now. The school

board said there is no discrimination so

they can stick it up their f---ing big fat

ass."

10. Respondent denies saying anything about the matter

getting personal. Nonetheless, Amerson heard the comments and

took them to mean that Respondent was going to hurt someone.

She believed that someone was probably Quijano. So, on the very

next day, Amerson told Quijano what she had heard Respondent

say. Quijano immediately reported what he had been told, first

to the director's assistant, and then to the director, Cantrell.

11. Cantrell took the matter very seriously and considered

Respondent's comments to be a legitimate threat against Quijano.

Cantrell was worried, in part, because "Quijano is slight in

stature." Respondent, on the other hand, is an obviously stout

and physically imposing person. The differences in the physical

stature of Respondent and Quijano concerned Cantrell.

12. Cantrell was familiar with Respondent, although she

did not regularly supervise him or view him doing his work.

Part of her concern about the incident at issue was based on the

fact that during Respondent's 90-day probationary period, her

assistant director, Dr. Berry, had concerns about Respondent's

level of anger. Cantrell advised Dr. Berry to effect some

changes in that behavior or else Respondent would have to be

terminated. Dr. Berry reported that Respondent had some serious

financial issues and family problems which contributed to his

anger. Cantrell called in Quijano to make a specific

recommendation that Respondent be retained despite the anger

issues. Quijano supported Respondent's continued employment, so

Cantrell allowed him to stay despite her reservations.

13. Upon hearing the report about Respondent's actions

after the March 26, 2009, meeting, Cantrell raised the

possibility of a restraining order to protect Quijano, but no

such order was ever sought. Cantrell considered Respondent to

be somewhat dangerous. Quijano was worried about the alleged

threat because he knew that Respondent knew where he lived.

Quijano was concerned about his wife and children. Cantrell

believed Quijano's concerns to be legitimate.

14. As a result of the concerns by Cantrell, Respondent

was summoned to her office the next day so that she could

interview him. Based upon her conversation with Respondent, he

was placed on administrative leave with pay. Respondent was

directed to undergo an examination by a medical professional in

order to obtain a Fitness for Duty Report, i.e. , a determination

that the physician believed Respondent did not have any issues

which would make him a threat to co-workers. Respondent was

given a list of three doctors to choose from and he selected

Dr. William B. Crockett.

15. On April 23, 2009, Respondent reported to Dr. Crockett

at Manatee Glens for an evaluation. Respondent says he believed

the examination was to be physical in nature, rather than a

psychological evaluation. However, upon reporting to

Dr. Crockett, Respondent said that he was there because of his

"recent behavior" and the fact that they (the School Board) "say

I made a threat." He then said that he had made the following

statement which concerned the School Board, "I said two words,

that I repented my sins, please forgive me for what I have to go

through." That statement is different from what Amerson

remembered, and Respondent stated that she was simply mistaken.

Nonetheless, it is obvious Respondent knew that he was seeing

Dr. Crockett for something other than a physical examination.

16. Dr. Crockett completed his evaluation of Respondent

and issued a Fitness for Duty Evaluation Report on May 5, 2009.

The report did not specifically say, in so many words, that

Respondent was not fit for duty. Rather, the report concluded

that:

Therefore, my recommendation, in order to

perhaps help to further delineate

[Respondent's] difficulties and personality

issues or thought abnormalities, would be to

get some psychological testing and I have

asked that that be done and I would like to

review the results of that prior to making a

determination that [Respondent] could safely

go back to work. The other thing I am

recommending is five sessions of individual

psychotherapy. . . I have no specific

recommendations for any kind of medication

at this time and I am not inclined to

approve him or give my recommendation that

he return to work until he has had the

psychological testing and his sessions of

individual psychotherapy and I have been

apprised of the results of those. I will

provide that in an addendum to this

evaluation.

17. Petitioner interpreted Dr. Crockett's recommendation

to be a finding that Respondent was not, at that point in time,

fit for duty. That interpretation is reasonable based upon the

plain meaning of Dr. Crockett's words. Respondent contends that

Dr. Crockett's report is neither a finding of fitness for duty,

nor a finding of unfitness. Petitioner's interpretation is more

reasonable.

18. Respondent further contends that Dr. Crockett's report

includes a directive to have additional psychological

evaluations by way of five personal sessions with a

psychologist. If those sessions are deemed part of the overall

evaluation for fitness, then the costs of the sessions would

have to be borne by Petitioner. Conversely, if the sessions are

a means of helping Respondent become fit for duty, then the

costs would have to be borne by him. The cost of psychotherapy

sessions under Respondent's insurance plan would be $50.00 per

session as long as Respondent used one of the 15 psychologists

in the health insurance network.

19. On July 8, 2009, Petitioner notified Respondent that

Dr. Crockett's report was being interpreted to mean that

Respondent was not fit for duty. As a result, Respondent would

no longer be on administrative leave, but would need to take

regular leave or sick time if he wished to continue being paid.

Petitioner instructed Respondent to undergo the prescribed

therapy sessions and that Respondent would be responsible for

the costs of those sessions. Petitioner further advised

Respondent that once the psychological sessions had been

completed and Dr. Crockett was made aware of that fact,

Dr. Crockett could then issue a Fit for Duty Report so that

Respondent could return to work. Eight days later, Petitioner's

attorney sent a letter to Respondent's attorney reiterating the

need for Respondent to comply with the directive to undergo

psychotherapy.

20. Approximately eight months later, Petitioner notified

Respondent that there was no evidence of Respondent's having

received the psychotherapy. Thus, Dr. Crockett had not yet

issued a Fit for Duty Report. As a result of the time that had

passed, Respondent had exhausted his annual and sick leave. He

was, therefore, considered absent without leave and subject to

termination. The letter then gave Respondent 12 days to submit

evidence that he had "made reasonable efforts to comply with the

superintendent's written directive of July 8, 2009. Otherwise,

the Superintendent would recommend termination of Respondent's

employment with the School District of Manatee County."

21. Reasonable efforts could be as little as scheduling

one of the psychotherapy sessions. However, Respondent did not

respond to Petitioner's letter and did not undertake any action

to schedule an appointment. Respondent was under the mistaken

belief that when he was placed on administrative leave, his

insurance had been cancelled as well. In fact, while Respondent

was on leave Petitioner paid the entire premium for Respondent's

insurance, i.e. , there was no employee share paid by Respondent.

22. As a result of Respondent's failure to comply with the

directive to undergo psychotherapy and his failure to request

unpaid leave after his annual leave and sick leave were

exhausted, Petitioner deemed Respondent absent without leave,

effective July 31, 2009, the day his other leave was used up.

Further, Respondent's refusal to schedule psychotherapy was

deemed insubordination by Petitioner.

23. An Administrative Complaint setting out Petitioner's

intent to formally terminate Respondent's employment was then

prepared and forwarded to Respondent.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to a contract with the School District of

Manatee County. The proceedings are governed by Sections 120.57

and 120.569, Florida Statutes.

25. The Superintendent of Manatee County Schools has the

authority to recommend to the School Board that an employee be

suspended or dismissed from employment. § 1012.27(5), Fla.

Stat.

26. The School Board has the authority to terminate the

employment of or to suspend non-instructional personnel without

pay and benefits. See §§ 1012.22(1)(f) and 1012.40(2)(c), Fla.

Stat.

27. The burden of proof in this proceeding is on

Petitioner to prove, by a preponderance of the evidence, just

cause exists to suspend or terminate the employment of

Respondent. McNeil v. Pinellas County School Board , 678 So. 2d

476 (Fla. 2d DCA 1996). Preponderance of the evidence is

evidence that more likely than not tends to prove the

proposition set forth by a proponent. Gross v. Lyons , 763

So. 2d 276 (Fla. 2000).

28. In the absence of a rule or written policy defining

just cause, Petitioner has discretion to set standards which

subject an employee to discipline. See Dietz v. Lee County

School Board , 647 So. 2d 217 (Fla. 2d DCA 1994). Nonetheless,

just cause for discipline must rationally and logically relate

to an employee's conduct in the performance of the employee's

job duties and be in connection with inefficiency, delinquency,

poor leadership, and lack of role modeling or misconduct. State

ex. rel. Hathaway v. Smith , 35 So. 2d 650 (Fla. 1948);

In Re: Grievance of Towle , 665 A.2d 55 (Vt. 1995).

29. Just cause for purposes of discipline is discussed in

Section 1012.33, Florida Statutes:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education:

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or being convicted and

found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude."

30. Gross insubordination is defined in Florida

Administrative Code Rule 6B-4.009(3), in part, as the constant

or continuing intentional refusal to obey a direct order,

reasonable in nature, and given by and with proper authority.

31. In the instant case, Respondent's refusal to undergo

psychotherapy despite being given more than ample opportunity

and his implied threats of violence against co-workers would

constitute just cause for termination of employment.

32. Further, Respondent's failure to undergo treatment so

as to obtain a Fit for Duty Report left him without sufficient

leave to remain away from work. Thus, he effectively became

absent without leave and his employment could be terminated for

that reason alone.

33. Respondent's actions were sufficiently egregious to

warrant the termination of his contract by the School Board.

The School Board has met its burden of proving, by a

preponderance of the evidence, that termination is warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Manatee County School Board, upholding the termination of

Respondent, Michael L. Seppala's, employment for the reasons set

forth above.

DONE AND ENTERED this 20th day of August, 2010, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of August, 2010.

COPIES FURNISHED :

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Post Office Box 9069

Bradenton, Florida 34206-9069

Dr. Eric Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Scott A. Martin, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206-9069

Robert E. Turffs, Esquire

Robert E. Turffs, P.A.

1444 First Street, Suite B

Sarasota, Florida 34236-5705

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.