01-002112 Miami-Dade County School Board vs. Frank F. Ferguson Status: Closed Recommended Order on Wednesday, December 12, 2001.

Summary: School Board had cause to terminate custodian`s employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 21 12

)

FRANK F. FERGUSON, )

)

Respondent, )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held i n this case

on September 25, 2001, at Miami, Florida, before Claude B.

Arrington, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: John A. Greco, Esquire

Miami - Dad e County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent's

employment as a school custodian based on the allegations

contained in the Notice of Specific Charges filed June 21, 2001.

PRELIMINARY STATEMENT

On May 16, 2001, Petitioner voted to terminate Respon dent's

employment as a school custodian, subject to his due process

rights. Respondent requested a formal administrative hearing to

challenge the proposed action, the matter was referred to the

Division of Administrative Hearings, and this proceeding

foll owed.

On June 21, 2001, Petitioner filed its Notice of Specific

Charges setting forth the grounds for the termination of his

employment. The facts found below and the grounds for the

termination of Respondent's employment set forth below were

properly a lleged in the Notice of Specific Charges.

At the final hearing, Petitioner presented the testimony of

the following School Board employees assigned to Horace Mann

Middle School (Horace Mann): Mark Wilder (math teacher and

coach), Clarence Strong (physical education teacher), Carolyn

Blake (principal), Robin Hechler (assistant principal), Noel

Chambers (custodian), William McIntyre (lead custodian), and

Willie Lee Ellis, Jr. (head custodian). Petitioner also

presented the testimony of E. D. (a student at H orace Mann at

times pertinent to this proceeding) and Reinaldo Benitez

(Executive Director of Petitioner's Office of Professional

Standards). Petitioner offered the following pre - marked

exhibits, each of which was admitted into evidence: 1, 3, 4, 5,

7, 1 0, 13, 14, 15, 16, 18, 21, 22, 24, 25, 26, 27, 28, 29, 30,

31, and 32.

Respondent did not appear at the final hearing.

A transcript of the proceedings was filed on November 26,

2001. Petitioner filed a Proposed Recommended Order, which has

been duly - cons idered by the undersigned in the preparation of

this Recommended Order. Respondent did not file a proposed

recommended order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Petitioner

was a duly - constituted School Board charged with th e duty to

operate, control, and supervise all free public education within

the school district of Miami - Dade County, Florida. See

Section 4(b) of Article IX of the Constitution of the State of

Florida, and Section 230.03, Florida Statutes.

2. At all time s pertinent to this proceeding, Respondent

was employed by Petitioner as a custodian at Miami Edison Middle

School (Miami Edison) and Horace Mann. Both schools are public

schools located in Miami - Dade County, Florida.

3. On May 16, 2001, Petitioner vot ed to suspend

Respondent's employment as a school custodian and to terminate

that employment.

4. Respondent is a non - probationary "educational support

employee" within the meaning of Section 231.3605, Florida

Statutes, which provides, in pertinent part, as follows:

(1) As used in this section:

(a) "Educational support employee" means

any person employed by a district school

system who is employed as a teacher

assistant, an education paraprofessional, a

member of the transportation department, a

mem ber of the operations department, a

member of the maintenance department, a

member of food service, a secretary, or a

clerical employee, or any other person who

by virtue of his or her position of

employment is not required to be certified

by the Departmen t of Education or district

school board pursuant to s. 231.1725. . . .

(b) "Employee" means any person employed

as an educational support employee.

(c) "Superintendent" means the

superintendent of schools or his or her

designee.

(2)(a) Each educa tional support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective bargaining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year

to year unless the superintendent terminates

the employee for reasons stated in the

collective bargaining agreement, or in

district school board rule in cases where a

collective bargaining agreement does not

exist . . .

(c) In the event a superintendent seeks

termination of an employee, the district

school board may suspend the employee with

or without pay. The employee shall receive

wri tten notice and shall have the

opportunity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining agreeme nt.

5. Respondent is a member of the American Federation of

State, County, and Municipal Employees, Local 1184 (AFSCME).

AFSCME and Petitioner have entered into a Collective Bargaining

Agreement (the Agreement) that includes provisions for the

discipli ne of unit members.

6. Article II of the Agreement provides that Petitioner

may discipline or discharge any employee for just cause.

7. Article XI of the Agreement provides specified due

process rights for unit members. Petitioner has provided

Respo ndent those due process rights in this proceeding.

8. Article XI of the Agreement provides for progressive

discipline of covered employees, but also provides that

". . . the degree of discipline shall be reasonably related to

the seriousness of the offense and the employees [sic]

record. . . ."

9. Article XI, Section 4C of the Agreement provides that

employment may be terminated at any time for disciplinary cause

arising from the employee's performance or non - performance of

job responsibilit ies.

10. On February 6, 1996, Respondent was issued a

memorandum from the principal of Miami Edison involving

Respondent's use of profanity in the presence of students. In

the memorandum, the principal directed Respondent not to use

profanity on school grounds.

11. On May 21, 1998, Respondent, Mark Wilder, Clarence

Strong, and a student were in the cafeteria of Horace Mann

preparing for a fund raising activity. Respondent spouted

profanities directed towards Mr. Wilder and threatened him with

a mop handle. Respondent feigned a swing of the mop handle,

causing Mr. Wilder to reasonably fear he was about to be struck

by the mop handle. Mr. Wilder had done nothing to provoke

Respondent. Mr. Strong knew Respondent and was able to defuse

the situation.

12. Mr. Wilder reported the incident to Senetta Carter,

the principal of Horace Mann when the incident occurred.

Ms. Carter reported the incident to Petitioner's director of

region operations. Respondent received a copy of the School

Board rule prohib iting violence in the workplace. After

investigation, the school police substantiated a charge of

assault against Respondent.

13. On March 15, 1999, Petitioner's Office of Professional

Standards held a Conference for the Record (CFR) with Respondent

pert aining to the incident with Mr. Wilder. Respondent was

specifically directed to refrain from using improper language

and from displaying any action that another person could

interpret as being a physical threat.

14. On October 25, 2000, during the ev ening shift,

Respondent physically assaulted William McIntyre and Noel

Chambers while all three men were working as custodians at

Horace Mann. Respondent shouted profanities towards both men,

threatened them, and violently grabbed them by their shirt

coll ars. Respondent punched Mr. McIntyre in the area of his

chest and broke a chain Mr. Chambers wore around his neck.

15. Mr. Chambers and Mr. McIntyre reported the incident to

Robin Hechler, an assistant principal at Horace Mann.

16. Respondent came to Ms. Hechler's office while she was

interviewing Mr. McIntyre about the incident. When Ms. Hechler

attempted to close the door to her office so she could talk to

Mr. McIntyre in private, Respondent put his hand out as if to

move Ms. Hechler out of his way . Ms. Hechler told Respondent

not to touch her and instructed him to wait outside her office.

Ms. Hechler later told Respondent to come in her office so she

could interview him. Respondent was acting irrationally.

Ms. Hechler told him if he could not c ontrol himself she would

call the school police. Respondent replied that was fine and

walked out of her office. Ms. Hechler reported the incident to

the school police, who ordered Respondent to leave the premises.

17. Following the incident, neither Mr. Chambers nor

Mr. McIntyre wanted to work with Respondent because they were

afraid of him.

18. In response to the incident involving Mr. McIntyre and

Mr. Chambers, the principal of Horace Mann referred Respondent

to the Petitioner's Employee Assistance Program on November 2,

2000. Respondent's shift was changed so he would not be working

with Mr. Chambers or Mr. McIntyre.

19. On November 7, 2000, Respondent attacked J. C., a

student at Horace Mann, in the cafeteria area of Horace Mann to

punish J. C . for something Respondent thought J. C. had said or

done. Respondent shouted profanities towards J. C. and choked

his neck. J. C. was very upset and injured by Respondent's

attack. Respondent was arrested on November 7, 2000, on the

offense of battery on a student. On February 21, 2001, he was

adjudicated guilty of that offense, placed on probation for six

months and ordered to attend an anger control class. Respondent

was also ordered to have no contact with J. C.

20. School Board Rule 6Gx13 - 4 - 1.08, prohibiting violence

in the workplace, provides as follows:

Nothing is more important to Dade County

Public Schools (DCPS) than protecting the

safety and security of its students and

employees and promoting a violence - free work

environment. Threats, th reatening behavior,

or acts of violence against students,

employees, visitors, guests, or other

individuals by anyone on DCPS property will

not be tolerated. Violations of this policy

may lead to disciplinary action which

includes dismissal, arrest, and/ or

prosecution.

Any person who makes substantial threats,

exhibits threatening behavior, or engages in

violent acts on DCPS property shall be

removed from the premises as quickly as

safety permits, and shall remain off DCPS

premises pending the outcome o f an

investigation. DCPS will initiate an

appropriate response. This response may

include, but is not limited to, suspension

and/or termination of any business

relationship, reassignment of job duties,

suspension or termination of employment,

and/or crim inal prosecution of the person or

persons involved.

Dade County Public Schools [sic] employees

have a right to work in a safe environment.

Violence or the threat of violence will not

be tolerated.

21. School Board Rule 6Gx13 - 5D - 1.07, provides that

c orporal punishment is strictly prohibited. Respondent's attack

on J. C. constituted corporal punishment.

22. School Board Rule 6Gx13 - 4A - 1.21, provides as following

pertaining to employee conduct:

I. Employee Conduct

All persons employed by The Sch ool Board

of Miami - Dade County, Florida are

representatives of the Miami - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or profane language in the workplace is

expressly prohibited.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. Sections 120.569 and 120.57(1), Florida Statutes.

24. Petitioner has the burden of proving by a

preponderance of the evidence the allegations contained in the

Notice of Specific Charges. See Florida Department of

Transportation v. J.W.C., Co. , 396 So. 2d 778 (Fla. 1st DCA

1981); Allen v. School Board of Dade County , 571 So. 2d 568

(Fla. 3d DCA 1990); and Dileo v. School Board of Dade County ,

569 So. 2d 883 (Fla. 3rd DCA 1990).

25. Respondent violated Rule 6Gx13 - 4 - 1.08 (prohibiting

violence in the workplace), Rule 6Gx13 - 5D - 1.07 (prohibiting

corporal punishment), and Rule 6Gx13 - 4A - 1.21 (prohibiting

conduct unbecoming a School Board Employee). Moreover, his

effectiveness as a school employee has been impaired by his

repeated aggressive conduct to wards a teacher, co - workers, and a

student.

26. Petitioner established by the requisite evidentiary

standard that it has just cause to terminate Respondent's

employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law , it is RECOMMENDED that Petitioner enter a final order

terminating Respondent's employment.

DONE AND ORDERED this 12th day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of December, 2001.

COPIES FURNISHED:

Frank Ferguson

7155 Northwest 17th Avenue, No. 9

Miami, Florida 33147

John A. Greco, Esquire

Miami - Dade County School Board

1450 Northe ast Second Avenue, Suite 400

Miami, Florida 33132

Dr. Roger C. Cuevas, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capi tol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.