09-000956TTS Sarasota County School Board vs. Ronald Davenport Status: Closed Recommended Order on Friday, June 26, 2009.

Summary: Petitioner proved by preponderance of the evidence that just cause exists for termination of Respondent's employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0956

)

RONALD DAVENPORT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 12, 2009, in North Port, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Hunter W. Carroll, Esquire

Matthews, Eastmoore, Hardy,

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

For Respondent: Ronald Davenport, pro se

Post Office Box 203

Nokomis, Florida 34274

STATEMENT OF THE ISSUE

The issue in this case is whether the termination of

Respondent's employment by Petitioner is justified and

consistent with the requirements of the Collective Bargaining

Agreement between Petitioner and the Sarasota

Classified/Teachers Association (of which Respondent is a

member).

PRELIMINARY STATEMENT

By certified letter dated January 21, 2009, the

Superintendent of Sarasota County Public Schools notified

Respondent that probable cause to terminate Respondent's

employment had been found and that a recommendation to that

effect would be made to Petitioner. Respondent timely filed a

letter denying all allegations of wrongdoing and specifically

challenging the decision to terminate his employment. The

matter was forwarded to the Division of Administrative Hearings

("DOAH") for purposes of conducting a formal administrative

proceeding. The undersigned Administrative Law Judge was

assigned to the case.

At the final hearing, held at the place and date set forth

above, Petitioner called 12 witnesses: Joanne Townsend, human

resources director for Sarasota County Public Schools (the

"District"); Ron Corso, assistant principal at North Port High

School (the "School"); Jacqueline Pollard, director of the

Performance Based Diploma Program at the School; Wesley Johnson,

head custodian at the School; Paul Paquette, assistant principal

at the School; Kathleen Moren, media aide at the School; Kathy

Wilks, assistant principal at the School; Domingo Rivera, School

police officer; Dr. George Kenney, principal at the School;

Samuel Wilson, north regional monitor for school security in the

District; Steven Hazuda, assistant principal at McIntosh Middle

School ("McIntosh"); and Larry Leon, chief of school police and

director of security for the District. Petitioner offered 16

exhibits into evidence, each of which was received.

Respondent testified on his own behalf, but did not call

any other witnesses. Respondent's Exhibits 1, 3, 4 and 6 were

admitted into evidence.

The parties advised the undersigned that a transcript of

the final hearing would be ordered. They were given ten days

from the date the transcript was filed at DOAH to submit

proposed recommended orders. The Transcript was filed on

May 28, 2009; Petitioner filed its Proposed Recommended Order on

June 8, 2009. On June 5, 2009, Respondent filed a request for

additional time to file its post-hearing submittal. Petitioner

indicated its acquiescence to some additional time. The request

was granted, and Respondent filed his Proposed Recommended Order

on June 18, 2009. Each party's Proposed Findings of Fact and

Conclusions of Law was carefully considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the Sarasota County School Board, the

entity responsible for operating, monitoring, staffing, and

maintaining the public schools of Sarasota County. The School

is a public high school established in 2001. It is located at

6400 West Price Boulevard, North Port, Florida. The school had

a student body in excess of 2,600 students at the beginning of

the current (2008-2009) school year, but that has declined to

2,500 as of the date of the final hearing in this matter.

2. Respondent, Ronald Davenport, was employed at the

School as a campus security monitor (also known as a security

aide) from 1988 until December 5, 2008. Respondent is an

African-American male. Respondent is a "classified" employee

under the Classified Bargaining Unit Collective Bargaining

Agreement between the Sarasota Classified/Teachers Association

and the District (the "Collective Bargaining Agreement").

3. On December 5, 2008, Respondent was reassigned or

transferred from the School to McIntosh. The reasons for the

transfer will be more fully discussed below.

4. During Respondent's tenure as a security monitor at the

School, he received a number of written disciplinary letters or

memoranda. Under the District disciplinary policies, written

reprimands are issued only after verbal reprimands have been

issued and proven ineffective. Respondent's discipline to-date

has included the following:

On November 22, 2004, Respondent was given a Record of

Verbal Reprimand concerning his failure to responsibly

monitor students while on duty.

A written reprimand was given to Respondent on

January 4, 2005, concerning improper contact with

students and work performance.

In April 2005, Respondent was suspended without pay

for a period of three days. The basis of the

suspension was Respondent's insubordination to

superiors.

In January 2006, Respondent was again suspended

without pay, this time for a period of ten working

days. This suspension was based on Respondent's

failure to perform his work responsibly, use of school

computers for personal reasons, and insubordination.

A letter of instruction (which is not technically a

disciplinary action) was given to Respondent on

April 12, 2007, concerning his actions while driving

on campus.

5. Respondent received other verbal reprimands and letters

(memoranda) of instruction in addition to those set forth above.

It is noted that two suspensions for a single employee is very

unusual; grounds for a second suspension would normally warrant

termination of employment. However, Principal Kenney stated

that at the time of the second suspension, he wanted to give

Respondent another opportunity, even though dismissal was

probably warranted. (Likewise, the aforementioned transfer from

the School to McIntosh was another effort by Kenney to sanction

Respondent without resorting to termination of employment.)

6. In the Fall of 2008, a student at the School spat water

on Respondent. The student received a three-day suspension and

a deferred expulsion 1 for his actions. A few weeks later, a

different student spat water on a Caucasian security monitor.

That student received a five-day suspension and a deferred

expulsion for the remainder of the year. The student in the

second incident, however, had a disciplinary history while the

student who spat on Respondent did not. That is the reason for

the slight disparity in punishment.

7. Respondent was unhappy about the second student being

treated more harshly and surmised that the reason for the

difference in punishment was that he (Respondent) was African-

American while the other security monitor was Caucasian. That

being the case, Respondent contacted Mrevor Harvey,

president of the local NAACP chapter, to complain. Harvey

contacted Principal Kenney, and the two agreed to meet at

Kenney's office on December 5, 2008, to discuss possible racial

issues at the School.

8. On December 4, 2008, Respondent was observed handing

out a note or flyer to students. The flyer, which was copied

from a handwritten original, included the following bullet

points:

An instruction asking the reader to make a copy and

tell a friend about the contents of the flyer.

A request to have parents and students call various

news agencies (whose telephone numbers were listed at

the bottom of the flyer) and request that reporters be

sent to the School the following day (December 5) to

attend an NAACP meeting at the School.

A statement of the writer's belief that the District

and the School promote intolerance, bias, and double

standards concerning people of color.

A statement specifically addressing Respondent's

confrontation with a student earlier in the year.

Another statement urging the reader to submit their

own concerns to administration that day or early on

the following day.

9. Respondent denies writing the flyer or having anything

to do with its distribution to students. However, he does admit

distributing copies of the flyer to other employees at the

school, including Jacqueline Pollard, a teacher, and Wesley

Johnson, the senior head custodian at the School. Both Pollard

and Johnson are African-Americans. Other employees, including

Mr. Johnson, saw Respondent handing out a sheet of paper to

students on December 4, 2008, which they presumed to be copies

of the flyer.

10. The flyer had been discovered by administrative staff

at the School on December 4, 2008, after an altercation between

some girls on campus. While the girls were being questioned in

the administrative offices, one of them provided staff with a

copy of the flyer. The student did not know from whom she had

received the flyer, but said it was being distributed around

campus. At least one teacher told the administrative office

that a student in her class received the flyer from Respondent.

11. Respondent was seen distributing an unidentified sheet

of white paper to students on the afternoon of December 4, 2008,

and the morning of December 5, 2008. Respondent maintains that

all he gave students was a handwritten Christmas greeting which

said, "Happy Holidays and [peace sign] on Earth. God bless

Obama & God bless the U.S.A. Mr. Ron, Security."

12. On the morning of December 5, 2008, Respondent was

observed by Assistant Principal Wilks talking to a group of

students. Wilks heard Respondent tell the students to go to the

Performing Arts Center ("PAC") for the purpose of attending the

NAACP meeting. Many of the students then headed toward the PAC.

Wilks then redirected the students toward their assigned

classrooms. Respondent denies he told students to go to the PAC

for a meeting; he says he directed them all to return to class.

Based on Wilks' interaction with students shortly thereafter in

the area of the PAC, her testimony on this point is more

credible.

13. After hearing Respondent talking to the students,

Wilks went to the PAC, which is located at the front of the

campus. Several groups of students showed up at the PAC and

said they wanted to attend the NAACP meeting. They were told

that there was no meeting at the PAC that day in which students

were authorized to attend. One of the students advised Wilks

that her "uncle" had told her to go to the PAC for the meeting.

Respondent concedes that the student was referring to him

(although she is not actually his niece). Respondent denies

telling her to go to the PAC for a meeting.

14. There was in fact a meeting at the School on

December 5, 2008, between the principal, Dr. Kenney, and the

NAACP representative, Mr. Harvey. However, that meeting was

held in the principal's office, not at the PAC. The meeting

went well and Mr. Harvey left the campus seemingly in agreement

with how the School was handling interactions between racial

groups. 2

15. It was determined by the School administration that

Respondent's apparent involvement in the effort to disrupt the

NAACP meeting made his continued employment at the School

impractical. However, rather than seeking to terminate

Respondent, it was decided that he could be transferred to

McIntosh to serve as a security monitor at that school. 3 On the

evening of December 5, 2008, after school hours, Respondent was

called at home and told that he was being reassigned.

16. On December 6, 2008, Respondent came to the School to

empty out his employee locker and retrieve his personal items.

He asked that this process be supervised and/or taped, so there

were persons observing him as he did so. Respondent then

reported to McIntosh for duty.

17. Employees are not allowed to use school copying

machines for personal use (without prior approval from

administration). Each employee is assigned a code to use when

making copies so that the School can monitor the use of copy

machines.

18. On the Monday following Respondent's reassignment to

McIntosh, a media specialist printed out a "user chart" for one

of the school copy machines located in the mailroom. The user

chart showed that Respondent had made 465 copies on that machine

since the beginning of the 2008-2009 school year.

19. Principal Kenney could not think of any justification

for Respondent making that many copies. Respondent does not

remember what he copied, but notes that another security monitor

made many more copies than Respondent did. Respondent did not

deny making the copies, but was unaware of the requirement to

get permission first.

20. Just three weeks before the NAACP meeting incident,

while Respondent was still working at the School, his supervisor

was looking for him on campus. Respondent did not respond to

calls over the walkie-talkie (radio) system used for

communication purposes. Respondent had not signed out in

accordance with the well-known policy to do so, but was observed

off-campus at a gas station. The failure to sign out is an

actionable violation of Respondent's employment.

21. On December 18, 2008, 4 Larry Leon (chief of school

police and director of safety and security) and Sam Wilson went

to McIntosh to provide Respondent a sealed envelope. The

envelope contained a notice concerning an upcoming meeting.

After Respondent failed to answer numerous radio calls from

Wilson, Wilson asked McIntosh's assistant principal, Hazuda, to

make an attempt to call Respondent.

22. Hazuda called Respondent, who showed up at Hazuda's

office in a matter of minutes. Upon seeing Wilson in the

office, Respondent was visibly upset. He said something to

Hazuda about being "set up" and that he was being harassed.

Respondent refused to accept the envelope, said he was sick, and

left Hazuda's office to go to the school clinic where he signed

out for the day. When Wilson tried to talk to him, Respondent

simply raised his hands above his head and walked away.

Hazuda's efforts to make Respondent remain at the school and go

back to work were not successful. Hazuda's testimony on this

point is extremely credible.

23. As Respondent was leaving the clinic, Leon called out

to him. Respondent ignored Leon and continued to leave the

building. Leon followed and called out loudly to Respondent,

asking him to stop. Respondent swore at Leon, saying "F**k you"

and continued to walk toward his car. At no time did Respondent

turn around and engage in face-to-face conversation with Leon. 5

24. On January 5, 2009, Police Chief Leon and Wilson

returned to McIntosh with another written notice to be delivered

to Respondent. Letters had been sent to Respondent about the

upcoming meeting, but no response had been received.

(Respondent had signed one copy of a notice, but left it on the

counter in the administration offices rather than returning it

as asked.) So, Wilson and Leon again tried to hand-deliver a

copy of the notice to Respondent.

25. Numerous attempts to contact Respondent via radio on

January 5, 2009, were unsuccessful. Finally, someone who had

heard the radio calls advised Respondent that he was being

summoned to the front office. Respondent surmises that his

radio might not have been functioning properly at that time, so

he didn't hear the calls. When Respondent got to the office, he

decided to check out for the day because he was feeling ill. He

left without accepting delivery of the written notice.

26. Subsequently, on January 15, 2009, a Weingarten

hearing was conducted on the issues relating to the December 5,

2008, NAACP meeting at the School and the two incidents at

McIntosh. Respondent attended the hearing and presented

responses to the allegations of misbehavior.

27. Based upon the information gathered at the Weingarten

hearing, the District decided that termination of Respondent's

employment was warranted.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to a contract with the Sarasota County

School Board. The proceedings are governed by Chapter 120.57

and 120.569, Florida Statutes (2008). 5

29. The Superintendent of Schools for Sarasota County,

Florida has the authority to recommend to the School Board that

an employee be suspended or dismissed from employment.

§ 1012.27, Fla. Stat.

30. Petitioner has the authority to terminate the

employment of or to suspend non-instructional (classified)

personnel without pay and benefits. See §§ 1012.22(1)(f) and

1012.40(2)(c), Fla. Stat.

31. The burden of proof in this proceeding is on

Petitioner to prove, by a preponderance of evidence, that 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).

32. "Just cause" is the standard applied to discipline

cases under the Collective Bargaining Agreement. See

Article XXI--Disciplinary Actions.

33. Just cause is not defined in the Collective Bargaining

Agreement, but Subsection 1012.33(1), Florida Statutes, offers

the following definition:

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 or found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

34. Respondent has clearly committed misconduct in office

and gross insubordination by his actions. The evidence as to

those violations is clearly established in the record.

35. Respondent has experienced a number of disciplinary

actions under the Collective Bargaining Agreement. He has, in

fact, been suspended twice based on findings of just cause.

36. The Collective Bargaining Agreement follows a theory

of "progressive discipline." This means that an employee

receiving disciplinary sanctions will receive the least severe

kind of sanction first, followed by a more severe type, up to

and including dismissal from employment. Respondent has

experienced each of the various degrees of sanctions under the

Collective Bargaining Agreement. In fact, Respondent has twice

received the next-to-highest standard of discipline, suspension

with or without pay. Thus, the disciplinary sanction of

dismissal would be procedurally correct for Respondent.

37. Petitioner proved, by a preponderance of the evidence,

that Respondent was insubordinate to his superiors, failed to

follow proper sign-out procedures (although he may have believed

that signing out in the clinic would suffice), used school

property (a copier) for unauthorized purposes, and

inappropriately encouraged students to skip class. The evidence

concerning these matters is competent and substantial.

38. As to the issue of making and/or distributing the

flyer, which if true would be a clear violation of Respondent's

duties and responsibilities, the evidence is less clear. The

evidence is circumstantial concerning this issue. It is clear

Respondent was handing out pieces of paper to students on the

day before the upcoming meeting between the principal and the

NAACP representative. It is undisputed that Respondent gave

pieces of paper to other employees that were, in fact, the flyer

at issue. It is certain that the flyer addresses an issue

directly related to Respondent and about which he was extremely

emotional.

39. Based upon clear circumstantial evidence, the ultimate

fact of Respondent's actions, vis-à-vis the flyer, may be

inferred. As stated in Davis v. State , 90 So. 2d 629, 631 (Fla.

1956):

Circumstantial evidence is proof of certain

facts and circumstances from which the trier

of fact may infer that the ultimate facts in

dispute existed or did not exist. The

conclusion as to the ultimate facts must be

one which in the common experience of man

may reasonably be made on the basis of the

known facts and circumstances.

40. Or, as stated in Procacci Commercial Realty v. DHRS ,

690 So. 2d 603, 608 (Fla. 1st DCA 1997):

The use of an objective standard creates a

requirement to make reasonable inquiry

regarding pertinent facts and applicable

law. In the absence of "direct evidence of

the party's and counsel's state of mind, we

must examine the circumstantial evidence at

hand and ask, objectively, whether an

ordinary person standing in the party's or

counsel's shoes would have prosecuted the

claim." Pelletier v. Zweifel , 921 F. 2d

1465, 1515 (11th Cir. 1991).

41. Under the circumstances presented, it is easily and

reasonably inferred that Respondent not only created the flyer,

but that he passed it out to students and urged them to engage

in an improper demonstration. An objective review of what

transpired would easily result in such a conclusion.

42. Petitioner has met its burden of proof in this case

and has proven, by a preponderance of evidence, that just cause

exists to warrant the termination of Respondent's employment as

a security monitor for the School Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Sarasota

County School Board terminating the employment of Respondent

effective February 18, 2009.

DONE AND ENTERED this 26th day of June, 2009, 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 26th day of June, 2009.

ENDNOTES

1/ A deferred expulsion essentially places a student on

probation. Any serious infraction during the probationary

period would automatically result in immediate expulsion from

school. The student at issue was on deferred expulsion for the

remainder of that school year, but did not engage in any further

offenses.

2/ The School is a very diverse campus. Approximately 21

percent of the students are minorities. There is a large number

of European students at the School, and 13 different languages

are spoken by students and faculty. The principal says there is

no evidence of extraordinary racism on campus.

3/ Coincidentally, McIntosh had just lost a security monitor to

retirement, and there was a slot available for Respondent.

4/ There were then two incidents which occurred at McIntosh

involving Respondent. One was on December 18, 2008, and the

other was on January 5, 2009. Each of the witnesses and

Respondent seemed confused about what exactly happened on each

of the specific days, but the facts are fairly consistent.

Thus, what one witness remembers happening on the first date,

another witness remembers on the latter date. Nonetheless, the

things that transpired are material regardless of which day they

actually occurred. The facts will be discussed below, but the

actual dates may not be accurate.

5/ This fact is mentioned only because Respondent was adamant at

final hearing that he had never spoken directly to Leon during

this encounter. The fact that Respondent's comments were made

with his back to Leon is not material.

6/ All references to the Florida Statutes herein shall be to the

2008 codification.

COPIES FURNISHED :

Mrs. Lori White

Superintendent of Schools

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231-3365

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

Hunter W. Carroll, Esquire

Matthews, Eastmoore, Hardy

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

Ronald Davenport

Post Office Box 203

Nokomis, Florida 34274

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.