09-002926TTS Palm Beach County School Board vs. Augustus Chappelle Status: Closed Recommended Order on Monday, May 10, 2010.

Summary: Petitioner demonstrated just cause on the basis of insubordination for the suspension of Respondent for 15 days, but not for termination and failed to establish bypassing of progressive discipline steps.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2926

)

AGUSTUS CHAPPELLE, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on February 9, 2010, by video teleconference with connecting

sites in West Palm Beach and Tallahassee, Florida, before

Errol H. Powell, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Vicki L. Evans-Paré, Esquire

Palm Beach County School District

Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Augustus Chappelle, pro se

3249 C Gardens East Road

Palm Beach Gardens, Florida 33410

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should be

suspended without pay and terminated from employment with

Petitioner for falsification of documentation and

insubordination.

PRELIMINARY STATEMENT

On May 26, 2009, the Palm Beach County School Board (School

Board) issued a Petition for Suspension without Pay and

Dismissal from Employment (Petition) against Augustus Chappelle,

a non-instructional employee, for falsification of documentation

and insubordination. The Petition set forth allegations against

Mr. Chappelle and asserted that just cause existed to suspend

him for 15 days without pay and terminate his employment

pursuant to Sections 1012.22(1)(f), 1012.27(5), and 1012.40,

Florida Statutes; School Board Policies 1.013 and 3.27; and

Article 3, Section C of the Collective Bargaining Agreement

between the Association of Educational Sectaries and Office

Professionals and the School Board. Mr. Chappelle challenged

the action and requested a hearing. On May 28, 2009, this

matter was referred to the Division of Administrative Hearings.

Based upon the School Board’s response to the Amended

Initial Order, to which Mr. Chappelle did not respond, this

matter was scheduled for final hearing. The parties filed a

joint request to re-schedule the hearing, which was granted, and

the final hearing was re-scheduled.

At hearing, the School Board presented the testimony of

four witnesses, which included Mr. Chappelle, and entered seven

exhibits (Petitioner's Exhibits numbered 4, 5, 19 (only page

bate stamped 56), 24, 26, 30, and 33) into evidence.

Mr. Chappelle testified in his own behalf and entered no

exhibits into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for more than ten days following the filing of the

transcript. The Transcript, consisting of one volume, was filed

on March 9, 2010. Only the School Board filed a post-hearing

submission, which was timely filed and has been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Chappelle has been employed with the School Board

since around August 2002. His supervisor was John Dierdorff.

2. At the time of the hearing, Mr. Chappelle had been a

communications technician with the School Board for

approximately five years. 1

3. No dispute exists that, at all times material hereto,

Mr. Chappelle was a non-instructional employee with the School

Board. Additionally, his supervisor for the entire time of his

employment in communications with the School Board was

Mr. Dierdorff.

4. Approximately one year after beginning his employment

with the School Board, Mr. Chappelle was having attendance

problems, i.e., absenteeism. Mr. Dierdorff attempted to assist

Mr. Chappelle improve his attendance, but to no avail. At a

point in time, Mr. Chappelle had exhausted all of his sick leave

and had no available sick days. When Mr. Chappelle was absent

due to illness, he was required to submit a doctor’s excuse.

5. On December 17, 2007, Mr. Chappelle received a written

reprimand for falsification of documentation from the School

Board’s Director of the Department of Employee Relations. He

had submitted to Mr. Dierdorff a “fraudulent or false doctor’s

note that was purported to be from [his doctor].” Among other

things, Mr. Chappelle was “directed to cease such conduct

immediately” and “to desist from engaging in the same or similar

conduct in the future” and was informed that his failure to do

so would result in “further disciplinary action up to and

including termination.” Mr. Chappelle acknowledged receipt of

the written reprimand by signing it on December 17, 2007.

6. The evidence demonstrates that the Director of the

Department of Employee Relations had the authority to give

Mr. Chappelle the directive. The evidence further demonstrates

that the directive was reasonable in nature.

7. Regarding the written reprimand, at hearing,

Mr. Chappelle admitted that he had falsified the doctor’s note,

submitted it to Mr. Dierdorff, and had received the written

reprimand as disciplinary action. Moreover, Mr. Chappelle

admitted that he had self-reported the wrongful conduct to the

School Board; the School Board had no knowledge that he had

falsified the doctor’s note. Mr. Chappelle further admitted

that he engaged in the wrongful conduct because, at the time, he

was suffering from health issues and having money problems,

including no money to pay for a doctor’s services, and his wife

was having mental health issues.

8. Several months later, on or about September 29, 2008,

Mr. Chappelle submitted a doctor’s note to Mr. Dierdorff. Among

other things, the note indicated that Mr. Chappelle was

medically cleared for work starting September 29, 2008; and that

he was not to work from September 17, 2008, through

September 29, 2008.

9. Mr. Dierdorff believed that the doctor’s note had been

altered or falsified because the note had whiteout on it and the

result, he referred the matter to the Department of Employee

Relations for possible investigation.

10. Subsequently, Mr. Chappelle became the subject of an

investigation by Employee Relations. The investigation was

based upon the allegation that he had falsified the doctor’s

note and had acted in an insubordinate manner by engaging in the

same or similar conduct for which he had been previously

disciplined.

11. The doctor’s note that was contained in the medical

file at the physician’s office was not the same as the doctor’s

note submitted to Mr. Dierdorff. Instead of indicating that

Mr. Chappelle was medically cleared for work on September 29,

2008, the doctor’s note in the medical file indicated

September 25, 2008. Further, instead of indicating a period of

time in which Mr. Chappelle was not to work, the doctor’s note

in the medical file was blank and, therefore, did not indicate a

period of time. However, the doctor’s note in the medical file

the same as the doctor’s note submitted to Mr. Dierdorff.

12. The evidence demonstrates that the doctor’s note

submitted to Mr. Dierdorff on or about September 29, 2008, was

altered and falsified.

13. Mr. Chappelle denies that it was he who altered and

falsified the doctor’s note.

14. Mr. Dierdorff denies that he altered or falsified the

doctor’s note.

15. Mr. Chappelle does not deny that it was he who

submitted the doctor’s note to Mr. Dierdorff.

16. The evidence demonstrates that Mr. Chappelle altered

and falsified the doctor’s note that he submitted to

Mr. Dierdorff on September 29, 2008. 2

17. Mr. Chappelle’s conduct on September 29, 2008, was the

same as or similar to his previous conduct for which he was

disciplined on December 17, 2007, by a written reprimand. Among

other things, Mr. Chappelle was notified in the written

reprimand that the same or similar conduct would result in

further disciplinary action up to and including termination.

The evidence demonstrates that Mr. Chappelle intentionally

committed the same or similar conduct and intentionally failed

to abide by the directive to no longer engage in such action.

18. By letter dated April 24, 2009, the Superintendent,

Arthur C. Johnson, Ph.D., advised Mr. Chappelle, among other

things, that sufficient just cause existed to impose

disciplinary action pursuant to Sections 1012.22(1)(f) and

1012.27(5), Florida Statutes; School Board Policies 1.013 and

3.27; and Article 17, Section 6 of the Collective Bargaining

Agreement between the Service Employees International Union,

Florida Public Services Union, and the School Board. Further,

Superintendent Johnson advised Mr. Chappelle that he

(Superintendent Johnson) was recommending to the School Board,

as discipline, suspension without pay and termination from

employment. Mr. Chappelle acknowledged that he received the

letter by signing and dating it on April 25, 2009.

19. Superintendent Johnson’s recommendation was submitted

to the School Board. The School Board agreed with the

recommendation.

20. Mr. Chappelle timely requested an administrative

hearing.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009).

22. Section 1012.40, Florida Statutes (2008), provides in

pertinent part:

(1) As used in this section:

(a) "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 district

school board pursuant to s. 1012.39. This

section does not apply to persons employed

in confidential or management positions.

This section applies to all employees who

are not temporary or casual and whose duties

require 20 or more hours in each normal

working week.

(b) "Employee" means any person employed as

an educational support employee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective bargaining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall 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, or reduces the

number of employees on a districtwide basis

for financial reasons.

(c) In the event a district school

superintendent seeks termination of an

employee, the district school board may

suspend the employee with or without pay.

The employee shall receive written notice

and shall have the opportunity to formally

appeal the termination. The appeals process

shall be determined by the appropriate

collective bargaining process or by district

school board rule in the event there is no

collective bargaining agreement.

There is no dispute that Mr. Chappelle is an educational support

employee and is non-instructional.

23. The letter dated April 24, 2009, from Superintendent

Johnson, notified Mr. Chappelle that, among other things, the

suspension and termination were pursuant to Article 17, Section

6 of the Collective Bargaining Agreement between the Service

Employees International Union, Florida Public Services Union,

and the School Board. However, the Petition cites to Article 3,

Section C of the Collective Bargaining Agreement between the

Association of Educational Secretaries and Office Professionals,

and the School Board. At hearing, only Article 17, Sections 1

through 8, of the Collective Bargaining Agreement was entered

into evidence as an exhibit, not Article 3, Section C of the

Collective Bargaining Agreement. 3 Furthermore, neither the

exhibit nor testimony referred to the specific union, and,

therefore, this Administrative Law Judge concludes that the

union is the union that is referred to in the Petition.

Consequently, this Administrative Law Judge concludes that the

applicable article and collective bargaining agreement referred

to in Superintendent Johnson’s letter dated April 24, 2009,

i.e., Article 17 of the Collective Bargaining Agreement between

the Service Employees International Union, Florida Public

Services Union, and the School Board is applicable in the

instant case.

24. The Collective Bargaining Agreement between the

Service Employees International Union, Florida Public Services

Union, and the School Board (Agreement) at Article 17, titled

pertinent part:

1. Without the consent of the employee and

the Union, 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.

2. All disciplinary action shall be

governed by applicable statutes and

provisions of the Agreement. . . .

* * *

5. Only previous disciplinary actions which

are a part of the employee’s personnel file

or which are a matter of record as provided

in paragraph #7 below may be cited if these

previous actions are reasonably related to

the existing charge.

6. Where just cause warrants such

disciplinary action(s) and in keeping with

provisions of this Article, an employee may

be reprimanded verbally, reprimanded in

writing, suspended without pay, or dismissed

upon the recommendation of the immediate

supervisor to the Superintendent and final

action taken by the District. Other

disciplinary action(s) may be taken with the

mutual agreement of the parties.

7. Except in cases which clearly constitute

a real and immediate danger to the District

or the actions/inactions of the employee

constitute such clearly flagrant and

purposeful violations of reasonable School

Board rules and regulation, progressive

discipline shall be administered as follows:

(A) Verbal Reprimand With A Written

Notation. Such written notation shall be

placed in the employee’s personnel file and

shall not be used to the further detriment

of the employee, unless there is another

reasonably related act by that same employee

within a twenty-four (24) month period.

(B) Written Reprimand. A written reprimand

may be issued to an employee when

appropriate in keeping with provisions of

this Article. . . .

(C) Suspension Without Pay. A suspension

without pay by the School Board may be

issued to an employee, when appropriate, in

keeping with the provisions of this Article,

including just cause and applicable laws.

The length of the suspension also shall be

determined by just cause as set forth in

this Article. . . .

(D) An employee may be dismissed when

appropriate in keeping with the provisions

of this Article, including just cause and

applicable laws.

25. The School Board has the burden of proof to show by

clear and convincing evidence that Mr. Chappelle should be

suspended for 15 days and terminated. See Agreement, Art. 17, §

1.

26. Upon the recommendation of the immediate supervisor to

the Superintendent and final action taken by the School Board,

an employee of the School Board may be disciplined where just

cause warrants. See Agreement, Art. 17, § 6.

27. Section 1012.27, Florida Statutes (2008), provides in

pertinent part:

The district school superintendent is

responsible for directing the work of the

personnel, subject to the requirements of

this chapter, and in addition the district

school superintendent shall perform the

following:

* * *

(5) Suspension and dismissal. --Suspend

members of the instructional staff and other

school employees during emergencies for a

period extending to and including the day of

the next regular or special meeting of the

district school board and notify the

district school board immediately of such

suspension. When authorized to do so, serve

notice on the suspended member of the

instructional staff of charges made against

him or her and of the date of hearing.

Recommend employees for dismissal under the

terms prescribed herein.

The evidence fails to demonstrate that an emergency existed for

the Superintendent to suspend or dismiss Mr. Chappelle without

the School Board’s approval and afterwards notify the School

Board of the suspension or dismissal. The evidence demonstrates

that the Superintendent recommended to the School Board the

suspension of 15 days and dismissal to the School Board.

Consequently, Section 1012.27(5), Florida Statutes (2008), is

not applicable to the instant case.

28. Section 1012.22, Florida Statutes (2008), provides in

pertinent part:

The district school board shall:

(1) Designate positions to be filled,

prescribe qualifications for those

positions, and provide for the appointment,

compensation, promotion, suspension, and

dismissal of employees as follows, subject

to the requirements of this chapter:

* * *

(f) Suspension, dismissal, and return to

annual contract status. --The district

school board shall suspend, dismiss, or

return to annual contract members of the

instructional staff and other school

employees; however, no administrative

assistant, supervisor, principal, teacher,

or other member of the instructional staff

may be discharged, removed, or returned to

annual contract except as provided in this

chapter.

The School Board has the authority to suspend or dismiss

Mr. Chappelle. See Agreement, Art. 17, § 6; § 1012.22(1)(f),

Fla. Stat. (2008).

29. The evidence demonstrates that the Director of the

Department of Employee Relations had the authority to give

Mr. Chappelle the directive on December 17, 2007. The directive

was to no longer engage in the same or similar conduct for which

he (Mr. Chappelle) received the written reprimand for

falsification of documentation, i.e., to no longer engage in the

same or similar conduct of submitting to his (Mr. Chappelle’s)

supervisor a false or fraudulent doctor’s note.

30. Also, the evidence demonstrates that the directive was

reasonable in nature.

31. Further, the evidence demonstrates that, on

September 29, 2008, Mr. Chappelle engaged in the same or similar

conduct, i.e., submitted to his supervisor a false or fraudulent

doctor’s note.

32. Moreover, the evidence demonstrates that

Mr. Chappelle’s conduct on September 29, 2008, was intentional.

33. No document was presented by the parties in the

instant case providing the definition of insubordination by the

Agreement or School Board policy.

34. Insubordination has been characterized as “generally

. . . persistent, willful or overt defiance of authority . . . .

Inherent in a finding of insubordination, however, is a finding

that the orders given were within the authority of the person

giving them.” McAllister v. Florida Career Service Commission ,

383 So. 2d 940, 941 (Fla. 1st DCA 1980), citing Muldrow v. Board

of Public Instruction of Duval County , 189 So. 2d 414, 415 (Fla.

1st DCA 1966).

35. The evidence demonstrates that Mr. Chappelle’s conduct

constituted insubordination.

36. Hence, the evidence demonstrates that the School Board

established just cause to take disciplinary action against

Mr. Chappelle.

37. The School Board alleges and argues that Mr. Chappelle

violated reasonable School Board rules and regulations, citing

specifically School Board Policies 1.013 and 3.27 in

Superintendent Johnson’s letter dated April 24, 2009, and in the

Petition. However, no School Board policies, including School

Board Policies 1.013 and 3.27, were entered into evidence; and

neither was official recognition requested to be taken of School

Board policies. 4 Without the School Board Policies, this

Administrative Law Judge is unable to determine that the

policies were violated.

38. Consequently, the School Board failed to establish

that School Board policies were violated.

39. Further, by failing to establish a violation of School

Board policies, the School Board failed to establish that the

disciplinary steps in progression discipline should not be

followed. See Agreement, Art. 17, § 7.

40. Hence, the evidence demonstrates that the School Board

established just cause for the suspension of Mr. Chappelle for

15 days, but failed to establish just cause for his termination

from employment. Further, the evidence demonstrates that

Mr. Chappelle should be reinstated effective at the expiration

of the suspension.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Palm Beach County School Board enter a

final order suspending Augustus Chappelle for 15 days and re-

instating him at the expiration of the suspension.

DONE AND ENTERED this 10th day of May 2010, in Tallahassee,

Leon County, Florida.

__________________________________

ERROL H. POWELL

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 10th day of May, 2010.

ENDNOTES

1/ The official title of his position was Tech Communications

II, as set forth in the Petition.

2/ Mr. Chappelle self-reported the first “fraudulent or false”

doctor’s note to the School Board, which resulted in a written

reprimand. He denies that he altered or falsified the doctor’s

note at issue. He does not deny that he submitted the altered

or falsified doctor’s note to his supervisor, Mr. Dierdorff.

Mr. Chappelle was the only person who benefited from submitting

the altered or false doctor’s note. No other person has been

asserted to have altered or falsified the doctor’s note or

benefited from such alteration or falsification.

3/ The School Board set forth in its post-hearing submission

Article 3, Section C, which is substantially the same as Article

17, Section 7. Additionally, Article 3, Section 3 was included

in the School Board’s exhibits, but was not offered into

evidence.

4/ School Board Policies 1.013 and 3.27 were included in the

School Board’s exhibits, but were not offered into evidence.

COPIES FURNISHED:

Vicki L. Evans-Paré, Esquire

Palm Beach County School District

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Augustus Chappelle

3249 C Gardens East Road

Palm Beach Gardens, Florida 33410

Dr. Eric J. Smith, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School District

3340 Forest Hill Boulevard, C316

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 should be filed with the agency that

will issue the final order in this case.