01-002483 Miami-Dade County School Board vs. Avery G. Nairn Status: Closed Recommended Order on Monday, February 25, 2002.

Summary: Truck driver discharged for lengthy history of insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 24 83

)

AVERY G. NAIRN, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on December 3 and 4, 2001, in Miami, Florida, before Florence

Snyder Rivas, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: John A. Greco, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent: Moneque S. Walker, Esquire

8260 West Flagler Street, Suite 1E

Miami, Florida 33144

STATEMENT OF THE ISSUE

Whether Respondent's employment by the School Board should

be terminated.

PRELIMINARY STATEMENT

On June 20, 2001, Petitioner, the School Board of Miami -

Dade County, Florida (Petitioner or S chool Board), took action

to suspend without pay, and initiate dismissal proceedings

against, Respondent, Avery G. Nairn (Respondent or Nairn).

Respondent timely asserted his statutory and contractual rights

to an administrative hearing.

On September 21, 2001, Petitioner served its Notice of

Specific Charges (Notice). In its Notice, Petitioner raised

four grounds for termination: (1) violation of School Board Rule

6Gx13 - 4.108 which prohibits violence in the workplace; (2) gross

insubordination and willfu l neglect of duty; (3) deficient or

non - performance of job responsibilities; and (4) violation of

School Board Rule 6Gx13 - 4A - 1.21 which prohibits conduct

unbecoming a School Board employee.

At the hearing, Petitioner presented the testimony of

Joanne Koski, Heidi Carlo, Joseph Spear, and Virginia Bradford.

Petitioner’s Exhibits numbered 1, 24 - 26, 28 - 34, 36 - 42, 44, 46 -

47, 49, and 51 - 57 were admitted without objection. The balance

of Petitioner's exhibits was admitted over objection.

Respondent te stified in his own behalf and also presented

the testimony of Herman Bain. Respondent’s Exhibit numbered 4

was admitted into evidence.

The transcript of these proceedings was filed with the

Division of Administrative Hearings on January 28, 2002. Both

p arties sought and were granted enlargements of time to submit

proposed recommended orders. Timely proposed orders were filed

on February 16, 2002, and have been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this case, Nairn was employed

by the School Board as a Materials Acquisition Transportation

Specialist, more commonly known as a truck driver.

2. The job is an important one in a large, urban school

district such as Miami - Dade County. While truck drivers do not

directly participate in the education of the tens of thousands

of students served by the school district, they play an

essential role in supporting and maintaining a physical

environment in which learning can safely and comforta bly take

place.

3. Each day, Nairn and his colleagues drive district - owned

trucks throughout Miami - Dade County to pick up essential

supplies from vendors and warehouses, and deliver them to the

appropriate schools and School Board offices. Any driving i s

inherently dangerous, and commercial trucks are sufficiently

different from regular automobiles that the state requires

drivers to hold a special trucking license, which Nairn does.

4. Nairn and his colleagues are supervised by staff whose

job it is to see that drivers fulfill their pick - up and delivery

responsibilities in a safe and efficient manner. Toward that

end, drivers are properly required to stay in close

communication with their supervisors, to follow prescribed

routes, and to conduct themselv es with civility in their

dealings with co - workers and members of the public whom they

encounter in the course of the work day.

5. Because of the high degree of independence and

responsibility accorded to Petitioner's truck drivers, who spend

most of thei r day on the road and out of the sight of their

supervisors, they are reasonably expected to exhibit mature

behavior and to be able to follow rules without constant

reminders.

6. The tasks assigned to drivers change from day to day

and sometimes hour to h our, and thus the job requires extensive

contact with supervisors. Drivers also must work cooperatively

with school board employees and members of the public with whom

the School Board does business to effect efficient pick - ups and

deliveries. For all of these reasons, drivers are expected to

have at least average communication skills, and to use them

appropriately.

7. Nairn reported to Heidi Carlo (Carlo) and Joseph Spear

(Spear), among others.

8. Nairn and other truck drivers are provided by Carlo

w ith training regarding work site procedures and policies.

Individual training is provided by Carlo when an employee is

hired, and thereafter group training is provided on an annual

basis. Drivers also receive a handbook setting forth procedures

and polic ies applicable to them.

9. Supervisors are available at all times to address

questions or concerns any of the truck drivers may have about a

particular assignment, policy, or personal or professional

problem encountered on or off the job.

10. Another mea ns of resolving issues which affect job

performance is offered in the form of an employee assistance

program (EAP), which may be accessed by employees upon a self -

referral, or an employer referral.

11. Prior to October 1994, Nairn worked for the School

B oard as a custodian. In October 1994 he began work as a truck

driver, and for the first seven months of that employment, there

are no documented disciplinary incidents.

12. There is no evidence that Nairn is unable to

understand his job requirements. Th e evidence and testimony

offered at the final hearing, coupled with the undersigned's

careful observations of Nairn as he testified, and as he

interacted with various hearing participants during the course

of the two day hearing, demonstrate that he is art iculate and

well able to communicate effectively and to conduct himself in a

gentlemanly manner.

13. At the final hearing, Nairn testified to his side of

the story with regard to some, but not all, of the disciplinary

incidents documented in his file. Na irn’s testimony was self -

serving, uncorroborated, and unpersuasive.

14. In general, Nairn portrays himself as a victim of poor

management. He claims that over the years he was unfairly

disciplined by capricious supervisors who constantly changed

their in structions. This testimony is not consistent with any

other evidence in the record. In addition, Nairn did not

attempt to deny or explain the most serious charges, the three

occasions on which he used his School Board truck for

unauthorized purposes.

15. Nairn's first documented encounter with the School

Board's disciplinary machinery occurred on May 24, 1995, at

which time he received a written warning for failure to follow

procedures and destruction of private property.

16. On September 1, 1995, Nai rn received a second written

reprimand. The subject of the reprimand related to what would

become a source of continuing friction between Nairn and his

supervisors and co - workers: Nairn's unwillingness to reliably

submit himself to the requirement that dr ivers stay in close

communication with their supervisors, and, more specifically,

that drivers contact their dispatcher upon arriving and

departing each site; schedule lunch in accordance with School

Board policies; and respond promptly to pages.

17. On November 18, 1996, Nairn received a verbal warning

for having used his School Board - owned truck to go to his

residence for two hours during a workday without authorization.

18. On other occasions, Nairn ignored directives by his

supervisors to lock School Board - owned vehicles.

19. Nairn was frequently insubordinate toward supervisors,

in ways others than the ones noted above. He often demonstrated

that he held co - workers in low esteem by abruptly hanging up the

telephone during conversations with them. Some, but not all, of

this behavior was documented in an October 29, 1997, memorandum

to Nairn.

20. By the time of his termination, Nairn had been the

subject of at least five formal disciplinary conferences.

21. On March 27, 2000, Nairn again engaged in unauthorized

use of his School Board vehicle by taking his truck to Broward

County for personal business without permission. When the truck

broke down in Broward County, Carlo had to arrange for the it to

be towed back to the work site. Nairn exacerb ated the

seriousness of this breach of trust by using his School Board

toll card to pay his tolls for this unauthorized use of time and

equipment.

22. Three months after this incident, on June 20, 2000,

Respondent once again used a School Board vehicle fo r personal

and unauthorized purposes.

23. The School Board went well beyond what was required of

it in allowing Nairn to continue his employment, notwithstanding

his inability or unwillingness to follow reasonable rules. In

addition to allowing him to ke ep his job following a number of

incidents which, standing alone, would have warranted

termination, on November 30, 1999, and April 26, 2000, Carlo

referred Nairn to the School Board’s EAP. The EAP offers many

kinds of professional services geared to prov iding confidential

assistance for persons who have problems with, for example,

submitting to authority; following rules with which they

disagree; or getting along with people they dislike.

24. Nairn declined to participate, which is his right, but

Carlo's patience was justifiably wearing thin as the

disciplinary incidents continued at an accelerating pace.

25. On February 16, 2001, Nairn's 18 - year - old son was in a

car accident which triggered a series of events resulting in the

School Board's decision t o terminate Nairn.

26. Under ordinary circumstances, an employee who claimed

to have been notified on his cell phone that his son, a new

driver, had been in an accident, as Nairn did, would instantly

be accorded permission by his immediate supervisor, in this case

Spear, to leave the workplace. But Nairn, through his own

actions, had marked himself as untrustworthy. Spear was

justifiably unwilling to allow Nairn to leave on Spear's

authority, when Spear's own supervisor, Carlo, was present in

the buildin g. Spear thus directed Nairn to see Carlo about his

request to leave.

27. Nairn went to Carlo's office, and an ugly scene

ensued. Carlo was busy with other things, and unaware of the

accident, and reasonably did not drop what she was doing to

attend to an agitated Nairn. Instead, she told him to wait his

turn.

28. Nairn was loud, angry, and sufficiently insistent upon

getting Carlo's undivided attention that she got up from her

desk to close her door so that she could finish a telephone

conversation wi th an outside vendor.

29. As Carlo tried to close her door, Nairn stuck his foot

in the doorway and pushed the door open. Spear got in front of

Respondent and eased him away so that Carlo would be able to

close the door.

30. Carlo was upset by this inc ident. She prepared a

memorandum describing the incident and requesting that

Respondent be dismissed. In addition, Carlo requested that

staff advise her if Respondent was entering her office area.

31. On May 3, 2001, Koski recommended dismissal of

Re spondent based on the February 16, 2001, incident and

Respondent’s lengthy disciplinary history. The recommendation

was supported by the Associate Superintendent, Bureau of

Procurement and Materials Management. As a result, on June 20,

2001, Petitioner i nitiated the current dismissal proceedings

against Respondent.

32. At all times material to this case, the School Board

was in compliance with applicable statutory and contractual

provisions concerning employee discipline and termination with

respect to Nairn.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties. See

Sections 120.569, 120.57(1), and 231.29(3)(d)3.b, Florida

Statutes (1999).

34. The School Board has the burden of proving just cause

to terminate Nairn's employment by a preponderance of the

evidence. See McNeil v. Pinellas County School Board , 678

So. 2d 476 (Fla. 1996); Dileo v. School Board of Dade County ,

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

35. Section 447.209, Florida Statutes, provides that it is

the right of public employers to “direct its employees, take

disciplinary action for proper cause, and relieve its employees

from duty because of lack of work or other legitimate reasons.”

36. Respondent is a non - probationary “educational support

employee” within the meaning of Section 231.3605, Florida

Statutes, which provides:

(1) As used in this section:

(a) “Educational support employee” means

any person employed by a district school

system who is employed as a teach er

assistant, an education paraprofessional, a

member of the transportation department, a

member 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 Department of Education or district

school board pursuant to s. 231.1725. . . .

(b) “Employee” means any person employed

as an educational support employee.

(c) “Supe rintendent” means the

superintendent of schools or his or her

designee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by distri ct 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 distri ct

school board may suspend the employee with

or without pay. The employee shall receive

written notice and shall have the

opportunity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining pr ocess or by district school

board rule in the event there is no

collective bargaining agreement.

37. Respondent is a member of the American Federation of

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

AFSCME and Petitioner have entered int o a Collective Bargaining

Agreement (AFSCME Contract) that includes provisions for the

discipline of its members.

38. Article II, section 3, of the AFSCME Contract

provides:

It is understood and agreed that

management possesses the sole right, duty,

and responsibility for operation of the

schools and that all management rights

repose in it, but that such rights must be

exercised consistently with the other

provisions of this agreement. These rights

include, but are not limited to, the

following:

A. Discipline or discharge of any

employee for just cause ;....

Article XI, section 1, of the AFSCME

Contract provides due process rights to

employees, and states:

Progressive discipline steps should be

followed, however, in administering

discipline, the deg ree of discipline shall

be reasonably related to the seriousness of

the offense and the employee’s record .

Therefore, disciplinary steps may include:

1. Verbal warning;

2. Written warning (acknowledge);

3. Letter of reprimand;

4. Suspension/de motion; and

5. Dismissal.

(Emphasis added.) Moreover, Article XI, Section 1, of the

AFSCME Contract further provides: “[I]t is agreed that

disciplinary actions taken against AFCSME, Local 1184 bargaining

unit members shall be consistent with the conce pt and practice

of progressive or corrective discipline and that in all

instances the degree of discipline shall be reasonably related

to the seriousness of the offense and the employee’s record .”

(Emphasis added.)

39. Thus, the AFSCME Contract, by its v ery terms, permits

the School Board to take into consideration the employee’s

entire record in determining the degree of discipline to be

imposed each time the occasion arises to consider the imposition

of discipline.

40. Article XI, Section 4, of the AF SCME Contract

delineates the distinct types of separation: voluntary;

excessive absenteeism/abandonment of position; disciplinary; and

non - reappointment.

41. Disciplinary separation, involved in this proceeding,

is defined as follows: “The employee is s eparated by the

employer for disciplinary cause arising from the employee’s

performance or non - performance of job responsibilities. Such

action occurs at any necessary point in time.”

42. Non - reappointment, not involved in this proceeding, is

distinct from disciplinary separation. This conclusion is

supported by the plain language of Article XI: “such non -

reappointment shall not be in lieu of discipline or lay - off .”

(Emphasis added.) Thus, Respondent’s argument, that

reappointment in the past preclu des Petitioner from dismissing

him for just cause based upon one or more prior incidents, is

not legally supportable.

43. The School Board alleged four independent grounds for

termination: (1) violation of School Board Rule 6Gx13 - 4.108

(prohibiting viole nce in the workplace); (2) gross

insubordination and willful neglect of duty; (3) deficient or

non - performance of job responsibilities; and (4) violation of

School Board Rule 6Gx13 - 4A - 1.21 (prohibiting conduct unbecoming

a School Board employee). With the exception of workplace

violence, the evidence supports termination on each of the

enumerated grounds.

44. School Board Rule 6Gx13 - 4 - 1.08 provides:

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, threatening behavior,

or acts of violence against students,

employees, visitors, guests, or other

individuals by anyone on DCPS property will

not be tolerated. Violation s 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 premise s as quickly as

safety permits, and shall remain off DCPS

premises pending the outcome of an

investigation. DCPS will initiate an

appropriate response. This response may

include, but it is not limited to,

suspension and/or termination of any

business rel ationship, reassignment of job

duties, suspension or termination of

employment, and/or criminal 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 by or

against students and employees will not be

tolerated.

45. Nairn's approach to leaving the workplace to deal with

his son's accident was boorish and inappropriate. Nairn had not

been given to understand that his son's life was in dange r, and

even if he had been, such news would have justified leaving

without permission, but not acting out in the workplace.

46. Given Nairn's long history of going "awol" when he

pleased, it is not likely that he would have hesitated to do so

had he bee n told of genuine cause for concern about his son's

status following the accident. Instead, he created a scene in

Carlo's office.

47. Nairn's conduct was boorish and ungentlemanly, and

Carlo was unquestionably upset, but it is not violence within

the mea ning of the School Board's rule. The evidence fails to

establish that Nairn made threats, engaged in threatening, as

opposed to infantile, behavior, or committed any acts of

violence against Carlo or any other individual.

48. Rather, this incident was ju st the latest in Nairn's

long history of being unapologetically and grossly insubordinate

to his supervisors, particularly Carlo, and willfully neglecting

various duties for his own convenience, or simply to demonstrate

his disrespect for workplace authori ty.

49. Nairn's most serious offenses, failing to consistently

and reliably account for his time, and failing to use his School

Board owned truck for business purposes only, could well justify

termination had they occurred only once. Nairn has provided n o

credible explanation or justification for any of the documented

incidents of failing to check in as required and personal use of

his vehicle. The fact that the School Board could have fired

Nairn for any or all of these incidents in years past and chose

not to do so does not preclude the School Board from deciding

that it no longer wishes to tolerate Nairn's volatility. See

Seminole County School Board v. Marku , 1997 Fla. Div. Adm. Hear.

LEXIS 5390 (1997) (single act of insubordination can lead to

dismi ssal).

50. Nairn's behavior on February 16, 2001, was not an out -

of - character outburst provoked by his concern for his son.

Rather, he had grown accustomed to thumbing his nose at

supervisors without meaningful consequence. Given Nairn's

history, it is well within the School Board's discretion to

terminate Nairn, if it chooses to do so, for that single act of

insubordination.

51. Article XI of the AFSCME Contract provides that an

employee may be separated for disciplinary cause related to non -

performanc e or deficient performance of job responsibilities.

Respondent’s conduct, as well as his record, demonstrate non -

performance and deficient performance of his job

responsibilities. Respondent’s non - performance and deficient

performance of his job responsi bilities also constitute just

cause for dismissal.

52. School Board Rule 6Gx13 - 4A - 1.21 provides:

All persons employed by The School Board of

Miami - Dade County, Florida are

representatives of the Miami - Dade County

Public Schools. As such, they are expecte d

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

53. Based upon all of the foregoing findings of fact and

conclusions of law, it requires no additional dis cussion to

determine that Nairn has, on too many occasions, conducted

himself in a manner which does not reflect credit upon himself

and upon the system which employs him. Thus, School Board Rule

6Gx13 - 4A - 1.21 provides an independent, albeit superfluous, basis

for a finding of just cause for dismissal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered terminating

Respondent’s employment and denying Respondent back pay.

DONE AND EN TERED this 25th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

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 25th day of February, 2002.

COPI ES FURNISHED:

John A. Greco, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33128

Moneque Walker, Esquire

8260 West Flagler Street, Suite 1E

Miami, Florida 33144

Merrett R. Stierheim, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

James A. Robinson, General Couns el

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions

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

exceptions t o this Recommended Order should be filed with the

agency that will issue the final order in