05-001305 Pinellas County School Board vs. Michael P. Begeny Status: Closed Recommended Order on Wednesday, July 20, 2005.

Summary: Petitioner should dismiss Respondent, who engaged in a sustained pattern of inadequate performance, insubordination, and inappropriate conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1305

)

MICHAEL P. BEGENY, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on May 20, 2005, in Largo,

Florida, on behalf of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Thomas L. Wittmer, Esquire

Pinell as County School Board

301 Fourth Street, Southwest

Largo, Florida 33770

For Respondent: Michael P. Begeny, pro se

62046 Polly Drive

Tarpon Springs, Florida 34689

STATEMENT OF THE ISS UE

The issue in this proceeding is whether Petitioner should

dismiss Respondent as an educational support employee for

alleged inappropriate interactions with colleagues, including

physical and verbal altercations, failure to correct performance

deficienc ies, and insubordination.

PRELIMINARY STATEMENT

On December 14, 2004, Petitioner suspended Respondent

without pay from his position of employment with the Pinellas

County School Board (School Board). Respondent timely requested

an administrative hearing .

At the hearing, Petitioner presented the testimony of five

witnesses and submitted 63 exhibits for admission into evidence.

Respondent presented the testimony of two witnesses and

submitted no exhibits for admission into evidence.

The identity of the witnesses and exhibits, and any

attendant rulings, are set forth in the one - volume Transcript of

the hearing filed with DOAH on June 27, 2005. Petitioner timely

filed its Proposed Recommended Order (PRO) on June 24, 2005.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner employed Respondent as a plant operator from

August 17, 1998, until the date of suspension without pay on

December 14, 2004. A plant operator is a non - instructional

employee responsible for housekeeping and janitorial tas ks at

the school to which the operator is assigned.

2. From sometime shortly after Respondent began his

employment with Petitioner in 1998 through November 2, 2004,

Respondent engaged in repeated acts of inappropriate

interactions with colleagues, includ ing physical and verbal

altercations, failure to correct performance deficiencies, and

insubordination. Respondent has a long history of discipline,

and efforts to correct his deficiencies have been unsuccessful.

3. Petitioner first assigned Respondent t o Forest Lake

Elementary School (Forest Lake) and, sometime in November 2004,

transferred Respondent to the Palm Harbor University High School

(Palm Harbor). The attitude and job performance of Respondent

at Forest Lake were inadequate. The p rincipal at Forest Lake

issued a letter of reprimand to Respondent in November 2004, and

transferred Respondent to Palm Harbor later in the same month.

4. At Palm Harbor, Respondent worked the "evening shift"

from 2:30 p.m. until 11:00 p.m. The work performance was

satisfactory, and Respondent earned a satisfactory annual

appraisal on January 20, 1999, for the 1998 - 1999 school year.

5. The work performance of Respondent declined through

June 1999. Respondent lost productivity, lacked teamwork,

complained, and c ursed.

6. The night foreman discussed the decline in performance

with Respondent and, in an attempt to assist improvement,

changed the area of the school for which Respondent was

responsible. The night foreman noted in the personnel record

that Respond ent had lost productivity, lacked teamwork,

complained, and cursed. The annual appraisal issued in

June 2000, for the 1999 - 2000 school year indicated a rating of

"needs improvement" in quality of work, quantity of work, and

attitude.

7. During the 2000 - 2001 school year, Respondent filed a

complaint against the night foreman and unsuccessfully attempted

to enlist other plant operators to file similar complaints.

Petitioner investigated the complaint, found insufficient

evidence to substantiate the compla int, and Respondent did not

pursue the complaint.

8. The job performance of Respondent continued to decline.

Respondent failed to adequately clean the gym lobby, sometimes

left work early, and ignored directions for improvement. The

annual appraisal is sued in January 2001, for the 2001 - 2002

school year, rated Respondent as "unsatisfactory" in the quality

of work, quantity work, and attitude. The appraisal further

indicated that Respondent "needs to improve" in his relations

with others, initiative, and judgment.

9. Respondent did not improve his job performance. A

teacher complained to the administration about the condition of

her classroom, and another plant operator reported that

Respondent described the night crew as a "bunch of pussies."

Other plant operators requested that they not be assigned to a

crew with Respondent. Between February and May 2001, the night

foreman counseled Respondent on a number of occasions.

10. Sometime in August 2001, the Head Plant Operator (HPO)

reassigned R espondent from B uildings 6 and 8 to B uildings 3 and

11 in an effort to assist Respondent in the improvement of his

job performance. Respondent refused alternatives for

reassignment to portable classrooms at Palm Harbor or

reassignment to a nearby middle s chool.

11. On September 13, 2001, Respondent smoked on campus

during his shift. Respondent also watched television during his

shift.

12. Deficiencies in performance continued through

September of that year. On October 8, 2001, the principal

counse led Respondent about smoking on campus and poor job

performance and issued a letter of caution to Respondent. In

relevant part, the letter required Respondent to improve his job

performance and to refrain from smoking on campus.

13. The annual appraisa l issued in January 2002, for the

2002 - 2003 school year, rated Respondent as "needs to improve" in

punctuality. The appraisal rated Respondent as "unsatisfactory"

in quality of work, quantity work, relations with others,

initiative, judgment, and attitude .

14. The annual appraisal issued in January 2003, for the

2003 - 2004 school year, rated Respondent as "needs to improve" in

quality of work, quantity of work, relations with others,

initiative, and judgment. Several areas in job performance

showed impr ovement or were "getting better." The appraisal did

not rate Respondent as "unsatisfactory" in any category.

15. In May 2003, Respondent was watching television during

work, not staying on task, not adequately cleaning the areas of

his responsibility, and not properly stocking restrooms.

Respondent exhibited hostility and disdain in response to

efforts to assist him in improving his deficiencies. On May 19,

2003, the HPO counseled Respondent and notified Respondent that

it was the last verbal warning for Respondent to improve his job

performance.

16. On May 27, 2003, the assistant principal at Palm

Harbor conducted a meeting with Respondent, the night foreman,

and the HPO. The assistant principal created a Success Plan

that included guidance for Resp ondent to improve his job

performance. Respondent signed the Success Plan.

17. In July 2003, Respondent was absent from his work on

one occasion for several hours. During the month, Respondent

cleaned little and took excessive breaks.

18. By July 16, 2003, Respondent had made no progress

toward the goals outlined in the Success Plan. The assistant

principal again met Respondent and notified Respondent that

excessive breaks and absences from his assigned work areas

constituted insubordination and misconduct. The assistant

principal directed Respondent not to make threatening comments

to the night foreman and issued a letter of reprimand that

Respondent signed. Respondent continued to work inadequately

and to take excessive breaks.

19. On Septemb er 4, 2003, Respondent angrily confronted a

plant operator who had criticized Respondent for leaving a

building door open. Respondent uttered profanities, took

several steps toward the co - worker, and made physical contact in

a threatening manner. Respond ent subsequently returned to his

work area.

20. On September 4 and 11, 2003, Respondent failed to

empty the trash in a classroom and failed to vacuum the

classroom for several days. The condition attracted roaches,

and the classroom teacher complained t o school administrators.

Respondent persisted in failing to add soap to restrooms that

Respondent cleaned.

21. In October 2003, Respondent engaged in another angry

exchange with a second plant operator. Respondent cursed at his

peer and accused the p eer of unfair treatment.

22. On October 23, 2003, the assistant principal again met

with Respondent, the night foreman, and the HPO to review the

progress of Respondent toward the goals in the Success Plan.

The assistant principal notified Respondent that the incidents

involving profanity, defiance, and insubordination were

unacceptable violations of the Success Plan. The assistant

principal also discussed other instances of failure to complete

tasks on time or not at all.

23. On November 3, 2003, the assistant principal issued a

letter of reprimand to Respondent. Respondent refused to sign

the letter.

24. On January 7, 2004, the assistant principal again met

with Respondent, the night foreman, and the HPO. They focused

on three violations of th e Success Plan involving Respondent's

interactions with others, insubordination, and failure to

perform daily tasks. The assistant principal issued another

letter of reprimand to Respondent that Respondent signed.

25. On January 8, 2004, Respondent sla pped the hand of

second plant operator during a confrontation between the two.

During the same month, Respondent did not adequately clean and

stock restrooms. Respondent also failed to use plastic bags for

trash cans in one classroom.

26. The annual ap praisal issued in January 2004, for the

2004 - 2005 school year, rated Respondent as "needs to improve" in

areas of job knowledge and punctuality. The appraisal rated

Respondent as "unsatisfactory" in the areas of quality of work,

quantity of work, relation s with others, initiative, judgment,

and attitude.

27. Between February 9 and 12, 2004, Respondent failed to

clean a men's restroom after repeated instructions to do so by

the HPO. Respondent eventually cleaned the restroom , but did so

inadequately.

28. In March 2004, Respondent repeatedly failed to lock a

classroom he cleaned. In April 2004, Respondent failed to clean

tables in another classroom. Respondent continued to clean

other areas of responsibility in a deficient manner.

29. In March 2 004, Petitioner referred the matter to its

Office of Professional Standards (OPS). The OPS administrator

offered Respondent a three - day suspension without pay, and

Respondent accepted the offer. Respondent served the suspension

from April 14 through Apri l 16, 2004.

30. During Respondent's work shift on April 30, 2004,

Respondent took breaks early, sat in a plant operations closet,

and watched television. During Respondent's work shift on

May 4, 2004, Respondent began lunch 35 minutes before the

sched uled lunchtime in a dark room and watched television. The

night foreman instructed Respondent to work until the normal

lunch break. Approximately 20 minutes after the instruction,

Respondent was viewing television and not working. Later that

evening, Re spondent sat in a closet doing nothing.

31. By May 5, 2004, Respondent continued to perform

unsatisfactorily. The unsatisfactory job performance continued

through May 18, 2004.

32. On May 19, 2004, the assistant principal again met

with Respondent, the night foreman, and the HPO. The level of

performance by Respondent continued to be unsatisfactory.

Respondent refused to vacuum a hallway carpet or to sweep a

floor in his area and stated that he had "other work to do."

Respondent did not complete a ssigned tasks. Respondent

continued to ignore instructions not to store a vacuum cleaner

in a particular room. The assistant principal issued another

letter of reprimand to Respondent.

33. On September 8, 2004, Respondent failed to vacuum

eight of 17 portable classrooms in a timely manner. Respondent

failed to assist another worker in an assigned task.

34. On October 21, 2004, Respondent angrily confronted a

third plant operator. On November 2, 2004, Respondent called a

fourth plant operator a lia r and made physical contact with the

worker. It required three attempts by the night foreman before

he could separate the two workers.

35. The night foreman reported the incident to the HPO.

The HPO directed the foreman to instruct Respondent to go ho me.

Respondent called the foreman a "lying SOB," and Respondent

declared that he would "get even."

36. Petitioner placed Respondent on administrative leave

with pay during an investigation of the incident. By letter

dated November 19, 2004, the Superint endent of the Pinellas

County School District (Superintendent) suspended Respondent

with pay from November 11 until the next School Board meeting on

December 14, 2004. At the meeting, Petitioner adopted the

recommendation of dismissal.

37. Petitioner has adopted as a rule "Policy 8:25

Disciplinary Guidelines for Employees" (Policy 8:25) in

accordance with Sections 1012.22 and 1012.23, Florida Statutes

(2004). The rule provides relevant standards for employee

discipline.

CONCLUSIONS OF LAW

38. DOAH has jurisdiction over the parties and the subject

matter. § 120.57(1), Fla. Stat. (2004). The parties received

adequate notice of the administrative hearing.

39. Respondent is an "educational support employee."

§ 1012.40, Fla. Stat. (2004). The Superinten dent has authority

to recommend dismissal of Respondent, and Petitioner has

authority to dismiss Respondent from his employment.

§§ 1012.27(5) and 1012.22(1)(f), Fla. Stat . (2004).

40. Petitioner has the burden of proof in this case.

Petitioner must sh ow by a preponderance of the evidence that

Respondent committed the offenses with which he is charged and

the reasonableness of any proposed penalty. MacNeill v.

Pinellas County School Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA

1996). Petitioner satisfied its burden of proof by more than a

preponderance of evidence.

41. Petitioner showed that Respondent engaged in

inappropriate interactions, including physical and verbal

altercations; failed to correct performance deficiencies; and

committed insubordination . Policy 8.25(1)(p), (t), and (u).

Petitioner also showed that the proposed penalty of dismissal is

reasonable.

42. During six years of employment, Respondent has engaged

in repeated violations for which Respondent has received

repeated discipline. The prior discipline includes verbal and

written cautions, a Success Plan, at least four written

reprimands, and one suspension without pay.

43. The historical effort by Petitioner to assist

Respondent in the improvement of his job performance has been

Sisyphean. For six years, Petitioner has repeatedly counseled

Respondent, reassigned Respondent, transferred Respondent,

offered Respondent a choice of responsibilities, and otherwise

assisted Respondent in numerous ways. Respondent consistently

failed t o improve the areas of deficiency.

44. Petitioner has exhausted all other reasonable

alternatives under its progressive discipline policy.

Respondent has left Petitioner with no alternative but to

dismiss Respondent from his employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order finding

Respondent guilty of committing the alleged violations and

dismissing Respondent from his employment.

DONE AND ENTERED this 20th day of July, 2005, in

Tallahassee, Leon County, Florida.

S

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 20th day of July, 2005.

COPIES FURNISHED :

Michael P. Begeny

62046 Polly Drive

Tarpon Springs, Florida 34689

Thomas L. Wittmer, Esquire

Pinellas County School Board

301 Fourth Street, Southwest

Largo, Florida 33770

Dr. Clayton M. Wilcox, Superintendent

Pinellas County School Board

Post Office Box 2942

Largo, Florida 33779 - 2942

Daniel J. Woodring, General Co unsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Honorable Jim Horne, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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 the agency that

will issue the Final Ord er in this case.