09-002748TTS Palm Beach County School Board vs. Osmel Gonzalez-Escalona Status: Closed Recommended Order on Thursday, December 3, 2009.

Summary: In view of Respondent's conviction for felony grand theft, Petitioner school board had just cause to dismiss Respondent from his position as a custodian for the school district.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2748

)

OSMEL GONZALEZ-ESCALONA, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

September 22, 2009, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Elizabeth T. McBride, Esquire

Palm Beach County School District

3318 Forest Hill Boulevard,

Suite C-302

West Palm Beach, Florida 33462

For Respondent: Osmel Gonzalez-Escalona, pro se

1228 Highview Road

Lantana, Florida 33462-5912

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, a

noninstructional employee of Petitioner's, should be fired for

theft.

PRELIMINARY STATEMENT

By letter dated March 24, 2009, Respondent Osmel Gonzalez-

Escalona was informed that the Superintendent of the Palm Beach

County School District would recommend to the School Board, at

its meeting on April 8, 2009, that he be suspended without pay

from his job as a custodian——and then be dismissed from

employment. As the basis for this action, the Superintendent

alleged that Mr. Gonzalez-Escalona had stolen a co-worker's

property.

Mr. Gonzalez-Escalona requested a hearing, stating in his

letter, dated April 14, 2009, that he had "found a cellular

phone and made several calls" to persons in Cuba and other

places, unaware that the phone "belonged to one of [his] co-

workers."

Thereafter, Petitioner Palm Beach County School Board,

acting through its Superintendent, issued a Petition for

Suspension Without Pay and Dismissal From Employment. On

May 15, 2009, the matter was referred to the Division of

Administrative Hearings, where it was assigned to an

Administrative Law Judge.

The undersigned convened the final hearing, as scheduled,

on September 22, 2009. (The hearing had been continued once,

from July 8, 2009, at Petitioner's request.) Petitioner

presented the following witnesses during its case-in-chief:

Britoni Garson, administrator; Eulises Munoz, school detective;

Elisa Ramon, retired teacher; and Mr. Gonzalez-Escalona.

Petitioner offered Petitioner's Exhibits 2, 11, 12, 13, 14, 15,

17, 18, and 19, each of which was received into evidence.

Respondent testified on his own behalf and presented no other

evidence.

The final hearing transcript was filed on November 6, 2009.

Petitioner filed a Proposed Recommended Order before the

deadline established at the close of the hearing, which was

November 16, 2009. Respondent did not file any post-hearing

papers.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2009 Florida Statutes.

FINDINGS OF FACT

1. At all times material to this case, Respondent Osmel

Gonzalez-Escalona ("Gonzalez") was a custodian in the Palm Beach

County School District ("District"), assigned to work at

Berkshire Elementary School ("Berkshire"). Petitioner Palm

Beach County School Board ("School Board") operates the schools

within the District and has authority over all District

personnel, including Gonzalez.

2. As a noninstructional employee of the District,

Gonzalez was subject to the collective bargaining agreement

entered into between the School Board and the Service Employment

International Union, Florida Public Services Union ("SEIU").

3. Elsa Ramon was a teacher at Berkshire during the 2007-

08 school year. Gonzalez cleaned her classroom as part of his

regular duties.

4. Some time in May 2008, Mrs. Ramon realized that she had

not seen her cellular phone since using it on May 6 to call her

husband. She recalled having placed a call to her husband that

morning and leaving the phone on a table in her classroom.

Because Mrs. Ramon did not use her phone frequently, she

initially thought she had simply lost or misplaced it.

5. When the phone did not turn up after a diligent search,

Mrs. Ramon and her husband obtained a replacement phone from

their carrier, T-Mobile. Mrs. Ramon's existing number was

assigned to the replacement cell phone.

6. Mrs. Ramon immediately began receiving calls on the new

phone for a woman whose name she did not recognize. The

frequency of these calls caused Mrs. Ramon to suspect that

someone was using her old phone. She and her husband went to

the T-Mobile store to report their concern about this

possibility. They learned that a huge bill of approximately

$3,300 had been run up on Mrs. Ramon's account, the result of

numerous phone calls, including many international calls to

persons in Cuba. T-Mobile promptly deactivated the phone

number; it had been used without Mrs. Ramon's permission for

about two weeks.

7. Although Mrs. Ramon had not placed the many, expensive

phone calls that produced the charges totaling several thousand

dollars, T-Mobile nevertheless demanded that she pay the bill,

pursuant to the contract between them. After some negotiation,

T-Mobile reduced the charges to about $2,600, which Mrs. Ramon

paid.

8. Meantime, on June 2, 2008, Mrs. Ramon reported the

theft of her cell phone to the School Police Department, because

she believed that the phone had been taken from her classroom.

After an investigation that lasted several months, the school

police identified Gonzalez as the culprit. On October 3, 2008,

Gonzalez was arrested on a charge of grand theft.

9. On January 23, 2009, Gonzalez pleaded guilty, in the

Circuit Court in and for Palm Beach County, to grand theft, a

third-degree felony. He was sentenced to 12 months' probation

and ordered to make restitution to Mrs. Ramon. As of the final

hearing in this case, Gonzalez had reimbursed Mrs. Ramon for the

loss she had incurred as a result of his unlawful use of her

cell phone.

10. At the hearing, Gonzalez admitted using Mrs. Ramon's

phone, without her permission, to call friends and family in

Cuba and other places. He denied having stolen the phone,

however, claiming that he had found it in a store. The

undersigned rejects this claim, which is not really exculpatory

in any event, as being too implausible to believe. The simplest

and best explanation for Gonzalez's having come into

unauthorized possession of the cell phone of a teacher whose

classroom he regularly entered for work related reasons, which

phone was last seen and used by its rightful owner in said

classroom, is that Gonzalez himself took the phone from the

classroom. This, the undersigned finds, is almost certainly

what occurred.

11. Assuming Gonzalez's testimony about finding the phone

were credible, however, which it was not, the undisputed fact

remains that Gonzalez stole lots of expensive airtime, running

up a bill of more than three thousand dollars in just two weeks

by making numerous international phone calls, among others, for

which Mrs. Ramon was liable. Thus, even in Gonzalez's telling,

he committed a crime (to which he pleaded guilty), albeit one

whose victim was a stranger rather than a co-worker.

Ultimate Factual Determinations

12. Gonzalez stole property from a teacher in whose

classroom he worked as a custodian. As a result of this

criminal behavior, he was arrested and accused of committing

felony grand theft, a charge to which he eventually pleaded

guilty. Having admitted to the commission of a felony that

victimized an employee of the District, Gonzalez has given the

School Board just cause to terminate his employment. Therefore,

it is determined that the School Board has sustained its burden

of proving, by clear and convincing evidence, the allegations

forming the basis for dismissal.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

14. Pursuant to Section 1012.40(2)(b), Florida Statutes,

the employment status of an "educational support employee," such

as Gonzalez, 1 must continue "from year to year unless the

district school 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 . . . ." If the

superintendent seeks termination of an employee, the district

school board may suspend the employee with or without pay. The

employee is entitled to contest the termination pursuant to the

appeals process provided for in the collective bargaining

agreement, if applicable, or by district school board rule.

§ 1012.40(2)(c), Fla. Stat.

15. The final authority with regard to the suspension and

termination of school employees rests with the district school

the burden of proving the alleged grounds for dismissal of an

employee by a preponderance of the evidence, see , e.g. , McNeill

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

1996), unless, through the collective bargaining process, it has

agreed to a more demanding standard, in which case the district

school board must act in accordance with the applicable

contract, see Chiles v. United Faculty of Florida , 615 So. 2d

671, 672-73 (Fla. 1993).

16. Article 17, paragraph 1, of the collective bargaining

agreement between SEIU and the School Board provides that

"disciplinary action may not be taken against an employee except

for just cause, and this must be substantiated by clear and

convincing evidence which supports the recommended disciplinary

action." The School Board's burden, accordingly, is to prove

the facts alleged as grounds for dismissing Gonzalez——which

grounds must constitute "just cause"——by clear and convincing

evidence.

17. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev . denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

18. The applicable collective bargaining agreement does

not provide a definition of "just cause." The term, however, is

not ambiguous and can be applied according to its plain meaning.

A dictionary is the appropriate reference to consult when the

plain meaning of a word or phrase is wanted. See , e.g. , Winn-

Dixie Stores, Inc. v. 99 Cent Stuff ail Plaza, LLC , 811 So.

2d 719, 722 (Fla. 3d DCA 2002)("Unless the document in question

contains a glossary of terms requiring a different meaning,

. . . which is not the case here, to find the plain and ordinary

meaning of words, one looks to the dictionary.").

19. The ordinary meaning of the term "just" is "having a

basis in or conforming to fact or reason." See Merriam-Webster

Dictionary Online

webster.com/dictionary/just>. The term "cause" is commonly

understood to mean a "sufficient reason" for "an action or

condition." Id. at

webster.com/dictionary/cause>.

20. Black's Law Dictionary offers several definitions that

capture the essential meaning of the term "just cause":

A cause outside legal cause, which must be

based on reasonable grounds, and there must

be a fair and honest cause or reason,

regulated by good faith. . . . Legitimate

cause; legal or lawful ground for action;

such reasons as will suffice in law to

justify the action taken.

See Black's Law Dictionary (5th Ed.) at p. 775.

21. Based on the plain meaning of the language employed,

the undersigned apprehends the term "just cause" as used in

Article 17 of the union contract to mean an objectively

reasonable basis in fact or logic, which provides sufficient

grounds, under the circumstances, for a good-faith, fair-minded

decision to impose discipline.

22. No legal analysis is required to support the

conclusion, which is self-evident, that an employee's commission

of a felony grand theft provides "just cause" for that

employee's dismissal, especially (though not only) where the

victim of the crime was a fellow employee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

dismissing Gonzalez from his position as a custodian in the Palm

Beach County School District.

DONE AND ENTERED this 3rd day of December, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of December, 2009.

ENDNOTE

1 / The term "educational support employee" means "any person

employed by a district school system who is employed as a

teacher assistant, an education paraprofessional, a member of

the transportation department, a 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

Fla. Stat. As a custodian, Gonzalez falls within this

definition.

COPIES FURNISHED :

Elizabeth T. McBride, Esquire

Palm Beach County School District

3318 Forest Hill Boulevard,

Suite C-302

West Palm Beach, Florida 33462

Osmel Gonzalez-Escalona

1228 Highview Road

Lantana, Florida 33462-5912

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Arthur C. Johnson, Ph.D.

Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C-316

West Palm Beach, Florida 33406-5869

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 must be filed with the agency that

will issue the final order in this case.