09-002414TTS Lee County School Board vs. Charles Bergstresser Status: Closed Recommended Order on Friday, September 25, 2009.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2414

)

CHARLES BERGSTRESSER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on July 17, 2009, in Fort Myers, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists to

terminate Respondent's employment with Petitioner based on

misconduct and gross insubordination as defined by Florida

Administrative Code Rule 6B-4.009(3) and (4).

PRELIMINARY STATEMENT

On April 13, 2009, James W. Browder, Ed.D., Superintendent

of Schools, issued a Petition for Termination of Employment

directed against Respondent. The Petition cited several bases

for taking the action against Respondent, including gross

insubordination and misconduct in the performance of his duties

as a custodian for the Lee County School Board (the "Board").

Petitioner then forwarded the Petition to the Division of

Administrative Hearings (DOAH) on May 8, 2009, citing

Respondent's request for a formal administrative hearing. At

the final hearing, Petitioner called the following witnesses:

Ranice Monroe, director of Professional Standards and Equity for

the Board; Maribel Cardentry, 1 custodian at Lehigh Senior High

School (Lehigh); Maria Herrera, head night custodian at Lehigh;

Humphrey Nanan, building supervisor at Lehigh; Henry Macardy,

sites worker at Lehigh; and Jeffrey Spiro, principal at Lehigh.

Petitioner's Exhibits 1 through 12 were accepted into evidence.

Respondent called the following witnesses: Dr. Edward Berla, a

psychologist; Judith Munro, counselor from the Children's Home

Society; and Darlene Palmer, friend of Respondent. Respondent

offered Exhibits 1 through 9 into evidence, each of which was

accepted. (All hearsay evidence was admitted subject to

corroboration by competent, non-hearsay evidence. To the extent

such hearsay was not corroborated, it will not be used as a

basis for any finding herein.)

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 at DOAH

on August 7, 2009. On that date, Respondent filed a motion

seeking to extend the time for filing proposed recommended

orders until September 4, 2009. Petitioner filed its Proposed

Recommended Order on September 4, 2009 (a Friday). Respondent's

Proposed Recommended Order was filed at 8:00 a.m. on

September 7, 2009 (the following Monday). No objection to

Respondent's late-filed Proposed Recommended Order was filed,

and both parties' submissions were given due consideration in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the school board responsible for hiring,

firing, and overseeing all employees at Lehigh.

2. At all times relevant hereto, Respondent was a

custodian at Lehigh and a member of the Support Personnel

Association of Lee County (the "Union"). Respondent was at all

times material hereto working the day shift, i.e., from

10:00 a.m. until 6:00 p.m. Respondent is 30 years of age. He

completed twelfth grade in the Special Education Program.

Respondent has been diagnosed as mildly mentally retarded

(having obtained IQ scores of 44 and 59 pursuant to testing).

He also has an "adjustment disturbance," which affects his

ability to properly respond to persons around him in certain

situations. Respondent is easily provoked by others and engages

in impulsive verbal reactions to situations that are not

warranted. Respondent has a limited ability to learn and has

about a second-grade reading level.

3. Dr. Edward Berla, a psychologist, has seen Respondent

on three or four occasions following recent incidents (see more

below) at Lehigh. Based on his study of Respondent's mental

health history and interview with Respondent, Dr. Berla does not

think Respondent is capable of carrying out threats to kill or

injure someone. Rather, Dr. Berla believes that Respondent

responds verbally in a manner that he later knows to have been

wrong. Respondent has difficulty properly responding to outside

influences on the spur of the moment.

4. Dr. Berla says that his treatment of Respondent has

ended. He did not know why Respondent no longer comes to see

him, but assumed it was due to insurance issues or that maybe

Respondent simply did not like him (Dr. Berla). At any rate,

Respondent stopped coming to see Dr. Berla. It should be noted,

however, that Respondent's social worker, Judith Munro,

testified that Dr. Berla himself terminated the relationship due

to the fact that Respondent needed to be treated by a

psychiatrist. Respondent received samples of some medications

(Zyprexa) while seeing Dr. Berla, but he has run out of those

and does not have money to purchase more. The medication seemed

to make Respondent less angry and agitated, and more relaxed.

However there was no competent expert testimony to that effect.

5. Respondent was hired at Lehigh in April 2007, by its

principal, Jeffrey Spiro, who had met Respondent while working

at another school some years earlier. A position opened up at

Lehigh and Spiro entertained Respondent's application despite

knowing that Respondent's prior work history was not stellar. 2

Spiro genuinely liked Respondent and wanted to give him a chance

despite his mental shortcomings. At the outset, Spiro knew that

Respondent would have to be given very specific instructions and

kept on task in order to do his job.

6. The position for which Respondent was hired had well

defined duties. Respondent was responsible for cleaning

restrooms, picking up and disposing of trash, mopping floors,

and other janitorial type duties. Respondent was also

responsible for monitoring the cafeteria (along with his

co-workers) during the student lunch periods.

7. Respondent officially began work at Lehigh in May 2007.

His supervisors' opinions were that Respondent was a nice

person, but that he had periods of moodiness that adversely

affected his work. Respondent has received performance

assessments from his supervisors during each school year since

1999-2000. His assessments for school years 1999-2000,

2000-2001, and 2001-2002 indicated an effective level of

performance. Beginning in the 2002-2003 school year,

Respondent's assessments began to note problems in some areas,

including: use of tools and equipment; cooperating with and

supporting co-workers; communicating effectively with

co-workers, supervisors, and school-based staff; and

demonstrating flexibility in responding to stressful situations

and changes in work environment.

8. Since commencing work at Lehigh, Respondent's record

includes the following:

• December 2007--A written reprimand including an

admonition for Respondent to refrain from making

threatening comments to co-workers.

• March 2008--A performance evaluation which

addresses Respondent's displays of anger in the

workplace.

• May 2008--A written reprimand issued after

instances of misconduct that included references

to a gun, a strict zero tolerance topic at Lehigh.

• July 2008--A letter issued to address Respondent's

request for Americans With Disabilities Act (ADA)

accommodations.

• October 2008--A written reprimand concerning two

incidents: Respondent told a co-worker to

"F**Off;" and Respondent refused to do his

assigned tasks, resulting in more work for his

co-workers.

• January 2009--Respondent refused to do a job

(oiling of door hinges) he was asked to do. He

responded loudly and angrily, demanding payment of

overtime. A letter of reprimand was issued.

• February 2009--Respondent again refused to do an

assigned task. Once again, he responded loudly

and inappropriately to his superior. A letter was

issued to Respondent's personnel file.

9. Respondent is generally described by his co-workers and

supervisors as a nice young man. However, he becomes moody and

often gets angry when his routine is changed in any way. When

he is moody, he will simply refuse to work; and there is no way

to entice him until his mood changes. When he is angry, his

co-workers just try to stay away from him.

10. While he is verbally aggressive at times, Respondent

has never been known to physically abuse anyone. He and his

caregiver's son will sometimes push and shove, but nothing out

of the ordinary for boys. (Respondent acts much younger than

his biological age.)

11. Another tactic employed by Respondent when he is angry

is to threaten to contact the Union and make a complaint. He is

on a first-name basis with Union representatives and frequently

calls them.

12. A disconcerting behavior of Respondent has been his

interaction with a particular co-worker, Maribel Cardentry.

Respondent will call Cardentry names, follow her to the

restroom, and refuse to assist her with work that should be

done. Respondent has attempted to hug and kiss Cardentry and

other females inappropriately. Whenever Cardentry talked to

other Hispanic workers in Spanish, Respondent would rebuke her

and make racial comments. Respondent has said that he does not

like people who do not speak English well.

13. Neither Cardentry, nor any other co-worker or

supervisor, was ever told that Respondent suffered from mental

retardation or any other condition. Each staff member seemed to

ascertain this fact for him or herself, but none were told by

administration that such a condition existed for Respondent.

There is no indication that knowledge of this fact would change

how the other staff interacted with Respondent.

14. The May 2008, letter of reprimand received by

Respondent (see paragraph 8, above) was a sanction considerably

less than called for by Board policies. His actions would have

justified termination of his employment. However, the Lehigh

administration, in deference to Respondent's limited mental

capacity, decided to impose a less severe punishment.

Respondent had said he was "going to f**ing shoot everybody."

That kind of language would normally invoke a zero tolerance

response from the Board.

15. In July 2008, Respondent requested, and Lehigh agreed,

to provide certain ADA accommodations. A committee was

established to address Respondent's needs and come up with a

plan for helping him cope with the daily regimen of his job.

After much discussion, the ADA committee decided to establish a

"daily checklist of [Respondent's] work assignments. This

checklist [would] include written information, pictures and/or

symbols to assist [him] in performing [his] duties." The

checklist was never implemented. Instead, Spiro, based on his

long relationship with Respondent, unilaterally decided that a

better plan would be for him (Spiro) to verbally direct

Respondent to his tasks whenever necessary. 3 So instead of

issuing a daily checklist with words, pictures, and symbols,

Spiro would walk the halls and point Respondent towards work

that needed to be done. This process was implemented and seemed

to work, at least from Spiro's perspective. (Respondent did not

testify at final hearing, so it is not known whether he felt the

plan was effective or helpful.)

16. The latest incident at Lehigh involving Respondent

occurred on March 4, 2009. Respondent acted in an insubordinate

fashion to his supervisor, Humphrey Nanan. Mr. Macardy, a

part-time instructor at Lehigh, witnessed the verbal exchange

between Respondent and Nanan and then followed Respondent

outside. Macardy attempted to engage Respondent in conversation

(as he frequently did) in order to find out if there was a

problem with which he could help. Respondent stated that, "[i]f

I get fired, I'm gonna kill [Vice Principal] McKeever and

[Principal] Spiro."

17. Macardy was very familiar with Respondent and had seen

him act aggressively and in anger on previous occasions, though

he had never seen Respondent act violently toward anyone.

However, the statements made on this day were much angrier and

more aggressive than Macardy had witnessed before. Respondent

then repeated his threats against McKeever and Spiro. When

Macardy attempted to talk to Respondent to calm him down,

Respondent advised Macardy that he (Respondent) could do

whatever he wants, and the Union representative would save his

job for him. Macardy's testimony concerning this incident is

credible.

18. There is no dispute that Respondent made the threats

about killing McKeever and Spiro. Those kinds of comments made

people nervous, whether or not they believed Respondent actually

meant to carry out the threat literally. There is no indication

in Respondent's history that he acted violently toward anyone or

physically hurt anyone. Nonetheless, these threats were taken

seriously and were the ultimate basis for the Board's decision

to terminate Respondent's employment.

19. Respondent's continued employment as a custodian at

Lehigh would require constant monitoring, described by Spiro as

"purposeful supervision." However, there is not enough staff

available at Lehigh to provide that kind of one-on-one

supervision for Respondent.

20. Respondent implies that a transfer to the night shift

would allow him to do his work with less interaction with others

and, conversely, less agitation or anger. 4 However, there are as

many custodians on the night shift as on the day shift.

Further, there is no indication that a position is available on

the night shift.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to a contract with the Lee County School

Board. The proceedings are governed by Sections 120.57

and 120.569, Florida Statutes (2009). 5

22. The Superintendent of Schools for Lee County, Florida,

has the authority to recommend to the School Board that an

employee be suspended or dismissed from employment. § 1012.27,

Fla. Stat.

23. The School Board has the authority to terminate the

employment of or to suspend non-instructional personnel without

pay and benefits. See §§ 1012.22(1)(f) and 1012.40(2)(c), Fla.

Stat.

24. The burden of proof in this proceeding is on

Petitioner to prove, by a preponderance of the 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).

25. "Just cause" is the standard of discipline applied to

actions against support personnel. See Support Personnel

Association of Lee County (SPALC) Agreement , Provision 7.10.

However, just cause is not defined in the Agreement.

26. In the absence of a rule or written policy defining

just cause, Petitioner has discretion to set standards which

subject an employee to discipline. See Dietz v. Lee County

School Board , 647 So. 2d 217 (Fla. 2nd DCA 1994). Nonetheless,

just cause for discipline must rationally and logically relate

to an employee's conduct in the performance of the employee's

job duties and which is concerned with inefficiency,

delinquency, poor leadership, lack of role modeling, or

misconduct. State ex rel. Hathaway v. Smith , 35 So. 2d 650

(Fla. 1948); In re Grievance of Towle , 665 A. 2d 55 (Vt. 1995).

27. Petitioner has construed just cause for purposes of

discipline pursuant to the SPALC Agreement in the same manner as

that phrase is used in Section 1012.33, Florida Statutes, viz :

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 and

found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude.

28. Gross insubordination is defined in Florida

Administrative Code Rule 6B-4.009(3) as a violation of the Code

of Ethics and Education Profession, as adopted in Florida

Administrative Code Rule 6B-1.001, and the Principles of

Professional Conduct for the Education Profession, as adopted in

Florida Administrative Code Rule 6B-1.006, which is so serious

as to impair the individual's effectiveness in the school

system. These rules further define gross insubordination as a

constant or continuing intentional refusal to obey a direct

order, reasonable in nature and given by, and with, proper

authority.

29. In the instant case, Respondent's refusal to do his

assigned tasks, harassment of co-workers and threats of violence

would constitute just cause for termination of employment.

30. There is some question as to the authority of orders

given to Respondent due to the fact that the ADA accommodations

created for Petitioner were never put into place. However,

absent any testimony from Petitioner as to whether he needed

those specific accommodations in order to do his work, Lehigh's

principal had the apparent authority to direct Respondent to do

his work assignments.

31. Lehigh's failure to implement the ADA accommodations

was not shown to be a factor in causing Respondent's behavior.

Respondent's anger and threatening comments were made despite

Spiro's efforts to make Respondent's assignments more

understandable. There is no indication in the record that the

ADA accommodations were set aside for any malicious, unkind, or

adverse reasons. Rather, Spiro acted in good faith to do what

he thought best for Respondent. The failure to accommodate

Respondent as agreed to by the ADA committee is, therefore, not

significant for purposes of the ruling in this Recommended

Order.

32. Respondent's actions were sufficiently egregious to

warrant the termination of his contract by the Board. The Board

has met its burden of proving, by a preponderance of the

evidence, that termination is warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Lee County School Board, upholding the termination of

Respondent, Charles Bergstresser's, employment for the reasons

set forth above.

DONE AND ENTERED this 25th day of September, 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 25th day of September, 2009.

ENDNOTES

1/ Cardentry, who is Hispanic, testified through an interpreter,

Enrique Diaz.

2/ Respondent had worked for the Board since 2000 in several

different jobs. His early evaluations were good, but in the

2002-2003 school year, the evaluations began to show problem

areas.

3/ Spiro said he put a lot of thought into the matter and used

his best professional judgment, tempered by his genuine sense of

affection for Respondent, to rethink the best plan of action.

He did not advise the ADA committee of his change to their plan,

but implemented it unilaterally.

4/ Again, this was simply an implied suggestion taken from

Respondent's counsel's questioning of witnesses at final

hearing. Respondent did not testify himself as to this desire.

5/ Unless specifically stated otherwise herein, all references

to Florida Statutes are to the 2008 version.

COPIES FURNISHED :

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

Dr. James W. Browder

Superintendent of Schools

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

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.