04-001343 Miami-Dade County School Board vs. Rafael N. Mejia Status: Closed Recommended Order on Friday, April 1, 2005.

Summary: The evidence was insufficient to show just cause for a 10-day suspension of Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1343

)

RAFAEL N. MEJIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to not ice, a final hearing was conducted in this

case on August 27, 2004, by video teleconference at sites in

Miami and Tallahassee, Florida, before Administrative Law Judge

Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitione r: Melinda L. McNichols, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: David H. Nevel, Esquire

Nevel & Greenfield, P.A.

11900 Biscayne Boulevard, Suite 806

North Miami, Florida 33181

STATEMENT OF THE ISSUES

The basic issues in this case are whether the Respondent

committed the violations alleged in the Petitioner’s Notice of

Specific Charges and, if so, whether such violations warrant a

ten - day suspension from work.

PRELIMINARY STATEMENT

At the final hearing on August 27, 2004, the Petitioner,

Miami - Dade County School Board (School Board or Petitioner)

presented the testimony of the following witnesses: Christopher

Pecori; Carl Krome; Lieutenant Leon Sczepanski; Juan Seabolt;

Howard Giraldo; Major John Hunkiar; Danysu Pritchett; and Major

Claudia Milton. The School Board’s Exhibits numbered 1, 3, 4,

6, 7, 10, 11, 12, 13, 14, 15, and 16 were received in evidence.

The Respondent testified on is own behalf and also

presented the testimony of Captain Dorene Baker and Caridad

Mejia. 1 The Respondent’s Exhibit numbered 1 was received in

evidence. 2

At the conc lusion of the hearing the parties requested, and

were granted, 45 days from the filing of the hearing transcript

within which to file their proposed recommended orders. For

reasons not explained in the record of this case, the hearing

transcript was not f iled until November 18, 2004. Thereafter,

the Petitioner filed a motion seeking an extension of the

deadline for filing proposed recommended orders. The motion was

granted, and January 25, 2005, was established as the new

deadline. Both parties filed ti mely Proposed Recommended Orders

containing proposed Findings of Fact and Conclusions of Law.

Those proposals have been carefully considered during the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Rafael M. Mejia, is present ly employed

as a police officer by the School Board. He has been so

employed at all times material to this case, having been first

employed in that position on or about January 27, 1999.

2. As a general matter, the Respondent is regarded by his

immediate supervisors (his supervising sergeant, lieutenant, and

captain) as being a good policeman. During the course of his

present employment he has received a number of commendations.

On at least one occasion, he was selected as “officer - of - the -

month.” Even though the Respondent generally does good police

work, his disciplinary record is not without blemish.

3. On June 5, 2001, a conference - for - the - record (CFR) was

held to address the Respondent’s non - compliance with School

Board Rule 6Gx13 - 4A - 1.21, Responsi bilities and Duties, School

Police Departmental policies, the Respondent’s failure to attend

scheduled court dates, and the Respondent’s pattern of sick

leave abuse.

4. As a result of the June 5, 2001, CFR referenced above,

the Respondent was issued a ver bal warning and a written

reprimand, and was directed as follows:

1. You are directed to adhere to all

departmental rules and directives.

2. You are directed to follow all lawful

orders given to you by one with proper

authority.

The Respondent was furth er advised in writing as follows:

You were directed to follow the proper

procedures by notifying the clerk of the

court when unable to attend court. You were

also verbally warned concerning your abuse

of sick leave. You are expected to conduct

yourself professionally with a positive

demeanor that is consistent with the

position of police officer.

5. On July 11, 2002, the Respondent was involved in a

motor vehicle accident while on duty. He was injured in the

accident and was treated at the scene of th e accident by fire

rescue personnel who then took him to the emergency room at

Baptist Hospital. At Baptist Hospital the Respondent was

examined, evaluated, and treated by a physician’s assistant

named Christopher Pecori. Mr. Pecori concluded that the

Re spondent had contusions to his chest and to his right

forefinger. Mr. Pecori also concluded that the Respondent was

experiencing mild to moderate pain at that time. Mr. Pecori

wrote prescriptions for small amounts of several pain medicines,

enough to con trol pain for four or five days. Mr. Pecori

advised the Respondent that the Respondent did not require

hospitalization, but that the Respondent should seek follow - up

care by a physician the next day.

6. Mr. Pecori also arranged for a note entitled “Retur n to

Work Instructions” to be prepared. That note included the

opinion that the Respondent “should be able to return to work in

4 - 5 days.” That note was supposed to be included in the

paperwork that was given to the Respondent when he was

discharged from the emergency room. 3

7. Mr. Pecori's opinion that the Respondent “should be

able to return to work in 4 - 5 days," was an estimate, perhaps

best described as an experience - based approximation. Mr. Pecori

could not state with any certainty that it would ta ke at least

four days for the Respondent to be able to return to work.

Similarly, he could not state with any certainty that by the

fifth day the Respondent would surely be able to return to work.

8. Two of the Respondent’s supervisors, Acting Lieutenant

Juan Seabolt and Acting Sergeant Howard Giraldo, responded to

the scene of the Respondent’s accident on July 11, 2002, and saw

the Respondent lying on the ground being attended by fire rescue

personnel. Seabolt then went to the hospital for a few minutes

while the Respondent was being treated in the emergency

department. Giraldo also went to the emergency department at

Baptist Hospital and stayed there for a couple of hours. Later

that evening Giraldo called the Respondent at home to see how he

was doin g. Based on their observations of the Respondent at the

scene of the accident and at the emergency room, Acting

Lieutenant Seabolt and Acting Sergeant Giraldo both knew that

the Respondent had been injured in the line of duty and they

both expected the Re spondent would miss several days of work

while recuperating from his injuries. As far as these two

supervisors were concerned, it was not necessary for the

Respondent to call in each day to remind them that he was still

recuperating from his injuries, bec ause they already had a

pretty good idea of what his circumstances were, and it was

primarily just a matter of waiting until the Respondent felt

good enough to return to work.

9. On more than one occasion after the accident, Acting

Sergeant Giraldo calle d the Respondent’s house by telephone to

inquire as to how the Respondent was doing. On those occasions

Acting Sergeant Giraldo spoke to the Respondent’s wife and was

advised by her of the Respondent’s condition.

10. From July 11, 2002, until July 22, 20 02, the

Respondent recuperated at home from his injuries. During that

time period he did not call his supervisors to advise them of

his condition because they were aware of his basic condition and

Acting Sergeant Giraldo was calling the Respondent from ti me - to -

time. The Respondent did not think he needed to call in each

day. Similarly, his immediate supervisors saw no need for daily

calls and his immediate supervisors were not concerned about the

Respondent’s failure to call in daily. 4

11. About ten day s after the Respondent’s accident, top

management in the police department began to make inquiries

about the Respondent’s status. Major Claudia Milton called

Lieutenant Leon Sczepanski, who at that time was Acting Captain

for Stations 5 and 6, and asked h im to advise her of the

Respondent’s current status. After some difficulty locating the

Respondent’s residence, on July 22, 2002, a note was left at the

Respondent’s residence asking him to contact Lieutenant Leon

Sczepanski. Later that same day, the Res pondent contacted

Sczepanski and asked what Sczepanski needed to see him about.

12. Acting Captain Sczepanski asked the Respondent what

his status was. The Respondent stated that he was out on

workers’ compensation. However, when Sczepanski asked the

Re spondent if he had consulted with the workers’ compensation

doctor, the Respondent stated that he had not. Sczepanski told

the Respondent that it was the Respondent’s responsibility to

contact the Office of Risk Management in order to get an

appointment t o see a workers’ compensation doctor. During the

morning of the next day the Respondent was seen by an approved

workers' compensation doctor and sometime near noon on July 23,

2002, the Respondent reported to Acting Captain Sczepanski and

gave Sczepanski a note from the workers’ compensation doctor

stating that the Respondent was fit to return to duty with some

work limitations. On or about July 24, 2002, the Respondent

failed to report to work. Sczepanski telephoned the Respondent

to inquire why he had failed to report to work. The Respondent

indicated that since the workers’ compensation doctor’s note

stated that the Respondent was not to lift anything over ten

pounds, the Respondent could not return to work. Sczepanski

informed the Respondent that th e workers’ compensation note

cleared the Respondent to return to work on light - duty status,

and instructed the Respondent to promptly report to work.

13. In the meantime, Major Milton had asked Acting Captain

Sczepanski to arrange for a CFR. The purpose of the CFR was to

address the fact that the Respondent had been out on leave and

had failed to follow the workers' compensation rules. The CFR

was scheduled for August 8, 2002.

14. On or about July 24, 2002, after a twelve - day absence,

the Respondent ret urned to work. Upon his return, Acting

Captain Sczepanski requested that the Respondent provide medical

documentation to support his twelve - day absence. The Respondent

stated that he would provide the medical documentation

requested. 5

15. The School Boa rd's Rule 6Gx13 - 4E - 1.13 addresses the

subject of illness or injury that occur in the line of duty.

The rule provides that employees injured while on duty are

entitled to leave. With regard to the duration of that leave,

subsection I.A. of that rule provi des, in pertinent part:

A medical evaluation conducted by a

physician approved by the Office of Risk and

Benefits Management will be the determining

factor as to when the employee is able to

return to duty. If the physician indicates

that the employee is not able to assume

his/her regular duties, but is able to

return to a less strenuous work assignment,

the employee may be directly appointed to

the Workers' Education and Rehabilitation

Compensation Program (W.E.R.C.) or to a job

commensurate with his/her medical and

educational capabilities.

16. Consistent with the above - quoted language of Rule

6Gx13 - 4E - 1.13, as well as with the emergency room discharge

instructions that he follow - up with a physician the next day, it

would have been in the Respondent's b est interests (in more ways

than one) for him to have been seen promptly by "a physician

approved by the Office of Risk and Benefits Management." Yet,

for reasons not adequately explained in the record in this case,

the Respondent did not go to an approve d physician until

July 23, 2002. 6

17. On August 8, 2002, in an effort to comply with the

instructions that he provide medical documentation to support

his twelve - day absence from work, the Respondent returned to the

emergency room at Baptist Hospital to r equest another return - to -

work note from Christopher Pecori, the physician assistant who

had attended the Respondent when the Respondent was seen in the

emergency room on July 11, 2002. The Respondent told Mr. Pecori

that he had lost the original return - to - work note that had been

issued to him and that he needed another one for work.

Mr. Pecori instructed a nurse, Carl Krome, to issue Respondent a

copy of the original return - to - work note.

18. Instead of simply locating and copying the original

return - to - w ork note, Mr. Krome embarked upon the process of

preparing a new return - to - work note for the Respondent, because

the Respondent explained to Mr. Krome that it had taken him

twelve days to recover from the injuries resulting from the

July 11, 2002, motor ve hicle accident, and the Respondent needed

to have some sort of documentation to support the time he was

unable to report to work. Mr. Krome took the Respondent at his

word and, against his better judgment, agreed to prepare a

return - to - work note reflectin g twelve days of recuperation,

because the Respondent was insisting that he needed a note that

covered all twelve of the days he was absent from work. The

Respondent conducted himself in a pleasant manner while

communicating with Mr. Krome.

19. Mr. Krome prepared the substitute return - to - work note

on a hospital computer. What he prepared on the computer reads

as follows:

Patient: RAFAEL MEJIA, Date 08/08/2002 Time: 15:02

Baptist Hospital of Miami

8900 N. Kendall Drive

Miami, FL 33176

(305) 596 - 6556

RETURN TO WORK INSTRUCTIONS

We saw RAFAEL MEJIA in our Emergency Department

on 08/08/2002. RAFAEL should be able to return

to work in 1 days [sic].

RAFAEL needs the following work limitations: OUT

OF WOR [sic] FROM 7/12/02 - 7/23/02 DUE TO INJURIES

FROM M VA.

Thank you for allowing us to care for your

employee.

_____________________________

CHRISTOPHER PECORI, PA - C

20. After Mr. Krome had printed the document, the

Respondent pointed out that the first sentence had an incorrect

date and a number of days that was inconsistent with the second

sentence. Rather than correct the document in the computer and

re - print it, Mr. Krome made the corrections by hand. He crossed

out the date 08/08/2002, handwrote above it “07/11/02,” and

placed initials next to the h andwritten date. Near the end of

the sentence, Mr. Krome added a “2” after the 1 and again placed

initials next to the change. As corrected by hand by Mr. Krome,

the first sentence of the substitute return - to - work note read as

follows: “We saw RAFAEL ME JIA in our Emergency Department on

07/11/02. RAFAEL should be able to return to work in 12 days.”

21. The Respondent took the substitute return - to - work note

provided to him by Mr. Krome and presented it at the CFR that

was held later on August 8, 2002. Representatives of the School

Board management became concerned about whether the Respondent

had modified the substitute return - to - work note and they were

also concerned about the fact that the substitute note mentioned

twelve days, but the original note m entioned only four or five

days. Because of those concerns an investigation was conducted

to determine the circumstances under which the Respondent

obtained the substitute note. The results of that investigation

revealed that the circumstances were essen tially as described

above.

22. A suspension of the Respondent on the basis of the

conduct described in the foregoing findings of fact would be

inconsistent with prior disciplinary practices of the Miami - Dade

School Police Department. In the past, conduct of the type

described in the foregoing findings of fact has not resulted in

the suspension of the officer who performed the acts. The

Respondent's failure to call in during the twelve days following

the July 11, 2002, accident and the Respondent's conduc t while

requesting a substitute return - to - work note do not constitute

misconduct that warrants disciplinary action. 7

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceed ing. §§ 120.567 and 120.57(1), Fla. Stat.

24. In cases of this nature, in order to prevail the

School Board must prove the allegations in the Notice of

Specific Charges by a preponderance of the evidence. The

“preponderance of the evidence” standard req uires proof by “the

greater weight of the evidence,” or evidence that “more likely

than not” tends to prove a fact at issue. And in cases of this

nature, an employee cannot be suspended or dismissed for any

reasons other than those alleged in the Notice o f Specific

Charges. Also, it is well - settled that once an employee has

been disciplined for past misconduct, he cannot be again

disciplined for that same past misconduct. Under principles of

progressive discipline an employee’s prior disciplinary history

may be considered in determining the appropriate discipline to

be imposed for a new episode of misconduct, but the prior

discipline is not a proper consideration in determining whether

the conduct under review in this case is, in fact, a violation.

25. T he Notice of Specific Charges in this case is by no

means a model of clarity and the undersigned has had some

difficulty in attempting to determine precisely what misconduct

the Respondent is alleged to have engaged in on and after

July 11, 2002, the date of his injury in a motor vehicle

accident. It is clearly alleged that during the twelve days

following the July 11, 2002, accident, the Respondent failed to

call in on a regular basis and advise his supervisors as to the

status of his recuperation. That failure is well - established by

the evidence in this case. But equally well - established is the

fact that the Respondent’s supervisors neither required nor

expected that he would call in on a daily basis. Under the

circumstances of this case, the Responden t’s supervisors thought

it would be sufficient if he simply advised them when he was

sufficiently recovered to return to work. Such being the case,

it can hardly be appropriate to take disciplinary action against

the Respondent on the basis of his failure to do something his

supervisors did not expect or require him to do. 8

26. With somewhat less clarity, the Notice of Specific

Charges alleges that the Respondent engaged in some form of

misconduct on August 8, 2002, when he went to Baptist Hospital

to ask to ask for another return - to - work note. The Notice of

Specific Charges does not, however, allege what specific act of

the Respondent was improper. Some witnesses familiar with the

investigation of that incident seem to suggest that the

Respondent coerce d Mr. Krome or intimidated Mr. Krome.

Mr. Krome recalls that the Respondent was polite, and other

supervisors familiar with the facts developed during the

investigation of the August 8, 2002, incident opined that there

was nothing to suggest any improper conduct by the Respondent on

that occasion.

27. The August 8, 2002, substitute return - to - work note was

also viewed with suspicion because it stated that the Respondent

would be able to return to work in twelve days, whereas the

original return - to - work not e estimated only four or five days.

As noted in the Findings of Fact, the original estimate of four

or five days was only an estimate, not a science - based

prediction. Similarly, the substitute return - to - work note with

its twelve - day estimate was only an estimate based on some

additional information; the additional information being that

the Respondent told Mr. Krome that it took him twelve days to

recuperate from his injuries. 9 Mr. Krome, like Mr. Pecori before

him, was at most merely expressing an exper ience - based

approximation. At this point it is also important to note that

the attention given to the Pecori and Krome return - to - work notes

is somewhat misplaced. This is because, in the final analysis,

neither note is of any significance in determining how much

leave the Respondent was entitled to or in determining when the

Respondent should have returned to work. As noted in the

findings of fact, pursuant to School Board Rule 6Gx13 - 4E - 1.13,

the determining factor is a medical evaluation “conducted by a

physician approved by the Office of Risk and Benefits

Management.” Neither Pecori nor Krome is such a physician, so

their estimates are, in the final analysis, irrelevant.

28. On the basis of the findings and conclusions set forth

above the undersigned is of the view that the Petitioner has not

shown good cause for a ten - day suspension of the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the charges in the Notice of

Specific Charges be dismissed and that the Respondent not be

suspended. If the Respondent has already served the suspension,

it is RECOMMENDED that the School Board take appropriate action

to restore the Respondent to the status he would have been in

but for the suspension.

DONE AND ENTERED this 1st day of April, 2005, in

Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 96 75 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of April, 2005.

ENDNOTES

1/ Caridad Mejia is the Respondent’s wife.

2/ The Respondent’s Exhibit number 1 is a composite exhibit

consisting of the transcript of the deposition testimony of

Major Milton and a copy of a memorandum dated November 4, 2003,

from Captain Baker to the Chief of the Miami - Dade Schools Police

Department.

3/ It is not clear from the r ecord in this case whether the

Respondent received the original return to work instructions and

then misplaced them or whether he never received the original

instructions.

4/ As Acting Lieutenant Seabolt explained at the hearing

regarding the Respondent’ s on - duty injury:

I knew it happened. I had no concern. I

figured he was injured and would call me

when he was well enough to call me.

* * *

I’m not exactly sure of the -- what the

regulation states in writing. I know that

it’s a practice with myself and in my region

that if an officer is out injured, and that

we know he’s out injured, and as long as

somebody casually checks on him he doesn’t

have to call in every single day, that’s my

practice, that’s what I practiced in the

past, and I never receive d any directions

from the administration that that was

incorrect.

To similar effect, Acting Captain Sczepanski testified that

officers recovering from on - duty injuries were not required or

expected to call in each day.

5/ The record in this case does no t indicate what specific

instructions were given to the Respondent regarding what type of

documentation he was expected to produce to support his twelve -

day absence from work.

6/ With regard to advising the Respondent that he needed to see

an approved ph ysician, Acting Lieutenant Seabolt stated that he

". . . made contact through his sergeant, and I instructed him

on how to go about going to workman's compensation doctor and

get a release to come back to work." The record in this case

does not reflect wh ether the Respondent's sergeant (Acting

Sergeant Giraldo) passed Seabolt's instructions along to the

Respondent.

7/ The findings of fact in paragraph 22 are based on the

testimony of Acting Captain Sczepanski and Acting Sergeant

Giraldo, who were clearly of the view that a suspension of the

Respondent on the facts in this case was unwarranted and was

inconsistent with the police department's prior disciplinary

practices. It is also noticed with interest that Captain Baker

who, at the request of Major Mil ton, signed a memorandum

recommending that the Respondent be suspended, has "no opinion"

as to whether the suspension was appropriate. Captain Baker

signed the memorandum because ". . . it was my understanding

that's what Chief Cacaro wanted."

8/ Althou gh the matter is not entirely free from doubt, it

appears that at least some of the upper management of the Miami -

Dade School Police Department are of the view that an employee

recuperating from a line - of - duty injury should call in daily to

report his stat us. But so long as the sergeants, lieutenants,

and captains are telling their subordinate officers that they do

not need to call in daily, there is no proper basis for

discipline of such officers for failing to call in.

9/ The “statement of facts” porti on of the notice of Specific

Charges (paragraphs 5 through 27) does not contain any

allegation that the Respondent was abusing sick leave during the

twelve days following the July 11, 2002, accident by pretending

to be incapacitated when, in fact, he was a ble to work. But a

“repeated pattern of sick leave abuse” is mentioned in

paragraph 30 of the Notice of Specific Charges. The brief

reference in paragraph 30 is insufficient to put the Respondent

on notice to defend against “sick leave abuse” and, in any

event, the evidence is insufficient to support a finding that

during any of the twelve days following the subject accident the

Respondent was sufficiently recuperated to report to work. In

other words, there is no evidence in the record sufficient to

sup port a finding that during the twelve days following the

subject accident the Respondent was malingering or "gold -

bricking."

COPIES FURNISHED :

David H. Nevel, Esquire

Nevel & Greenfield, P.A.

11900 Biscayne Boulevard, Suite 806

North Miami, Florida 33 181

Melinda L. McNichols, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Dr. Rudolph F. Crew, Superintendent

Miami - Dade School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

Hono rable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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 t he agency that

will issue the Final Order in this case.