12-000899TTS Manatee County School Board vs. Robert J. Singer Status: Closed Recommended Order on Friday, October 26, 2012.

Summary: Just cause exists for the Manatee County School Board to terminate Respondent's employment for repeatedly sleeping on the job.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0899TTS

)

ROBERT J. SINGER , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notic e, a final hearing was held in this case on

September 13, 2012, in Bradenton, Florida, before Administrative

Law Judge Linzie F. Bogan, a designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Erin G. J ackson, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Post Office Box 639

201 North Franklin Street, Suite 1600

Tampa, Florida 33602

For Respondent: Robert J. Singer

14703 1st Avenue East

Bradenton, F lorida 34212

STATEMENT OF THE ISSUE

Whether there is just cause for the Manatee County School

Board to terminate the employment of Robert J. Singer.

PRELIMINARY STATEMENT

On or about February 8, 2012, Petitioner, Manatee County

School Board (Petitioner/ School Board), through Timothy McGonegal,

as s uperintendent of s chools, served on Respondent, Robert J.

Singer (Respondent), an Administrative Complaint recommending

Respondent ' s termination from employment. Respondent timely filed

his request for adminis trative hearing, and on March 9, 2012, the

matter was referred to the Division of Administrative Hearings for

a disputed fact hearing. By consent of the parties, the disputed

fact hearing was held on September 13, 2012.

During the final hearing, Petition er offered testimony from

Respondent, Randall Petrilla, and Anthony Losada. In addition to

testifying on his own behalf, Respondent offered the testimony of

Debra Horne. Petitioner ' s Exhibits 1 through 8, 8A through 8M,

and 9 through 16 were admitted int o evidence. Respondent ' s

E xhibit A was admitted into evidence.

A Transcript of the proceeding was filed with the Division of

Administrative Hearings on September 21, 2012. Each party filed a

Proposed Recommended Order (PRO). The respective PROs were

co nsidered in the preparation of this Recommended Order.

FINDING S OF FACT

1. The School Board is the duly authorized entity

responsible for providing public education in Manatee County,

Florida.

2. Respondent has been employed by the School Board as a

t e acher ' s a ide at Braden River Middle School (BRMS) since

September 6, 2007. A person employed as a teacher ' s aide is

considered an " educational support employee " and is subject to

section 1012.40, Florida Statutes (2011). 1/ Respondent ' s position

as a teac her ' s aide is covered by the Paraprofessional Bargaining

U nit, Collective Bargaining Agreement , between the Manatee County

District School Board and Manatee Education Association 3821

(Collective Bargaining Agreement). Article XVI of the Collective

Bargai ning Agreement provides in relevant part that " [n]o regular

paraprofessional will be dismissed or deprived o f salary or

fringe benefits during the term of the school year without just

cause. " The Collective Bargaining Agreement does not define

" just cause . "

3. As a teacher ' s aide, Respondent was responsible for:

(1) assisting in the supervision of students on campus , as well

as in the classroom; (2) assisting with supervision of students

in the cafeteria; (3) assisting and monitoring testing of

student s; (4) participating in workshops and training sessions as

required; (5) providing a safe and secure workplace; (6) keeping

supervisors informed of potential problems or unusual events; and

(7) following School Board policies, rules and regulations.

4. Mr. Randall Petrilla (Petrilla), p rincipal of BRMS, is

Respondent ' s supervisor. While working at BRMS, Petrilla charged

Respondent with the responsibility of running the In - School

Suspension Program (ISS). Students are assigned to ISS when they

commit mi nor infractions of school rules. Respondent was the

only adult assigned to supervise the ISS classroom , and during

any given day, there would be anywhere from 0 to 20 students

assigned to Respondent for supervision. By his own admission,

Respondent ackno wledges that it is " extremely important " to

remain awake and to always maintain control of the students

in ISS.

5. Throughout Respondent ' s employment, Petrilla has

counseled or disciplined Respondent for improper behavior and for

falling asleep during s chool hours. Specifically, Respondent has

been counseled or disciplined as follows:

a. On April 28, 2009, Respondent received an

evaluation. In his evaluation, Petrilla

stated that Respondent needed to work on

maintaining self control. Petrilla also

no ted that Respondent had fallen asleep

during faculty meetings and while supervising

students in ISS.

b. On February 10, 2010, several students

reported that Singer fell asleep in the ISS

classroom while supervising students.

Petrilla informed Responden t that " [i]t is

expected that there will be no recurrence of

this [type] of behavior " and if such an event

did recur, then further disciplinary action

would result.

c. On June 12, 2010, Respondent received an

evaluation and it was noted therein that

Re spondent " continues to have issues w/

sleeping when he is supervising students. "

d. On January 14, 2011, Respondent was

issued a written reprimand for his actions

" on November 17, 2010; December 8, 2010; and

January 11, 2011 " when he was observed by

Petr illa or other staff members sleeping

during required meetings or while he was

supervising students. Petrilla informed

Respondent that such behavior was totally

[un]acceptable " and that such behavior was

considered misconduct in office and gross

insubordin ation. Petrilla again reminded

Respondent that future instances of sleeping

while on duty would subject Respondent to

disciplinary action.

6. On February 2, 2011, during a required district

in - service meeting, Respondent was observed sleeping by A ss istant

P rincipal Anthony Losada (Losada). Based on this allegation, the

Office of Professional Standards (OPS) conducted an investigation

and confirmed that Respondent was sleeping during work hours.

Following the OPS investigation, the s uperintendent re commended

that the School Board suspend Respondent for ten days.

Respondent admitted the violation, accepted the suspension, and

acknowledged that he understood that additional violations of a

similar nature could result in further disciplinary action.

7. Following the OPS investigation, the School Board had

concerns about Respondent ' s ability to supervise students in ISS.

Consequently, Respondent was given a temporary assignment where

he was responsible for monitoring different areas of the school ,

s uch as the hallways, the media center, the bus ramps, the

cafeteria, and the O ffice of S tudent S ervices. Petrilla assigned

Respondent these temporary duties despite the fact that the

duties were being performed by other personnel. Petrilla

believed that by assigning Respondent these temporary duties ,

which required a higher level of physical activity as compared to

Respondent ' s ISS duties, Respondent would be more alert

throughout the workday and would , therefore , not sleep while on

the job.

8. Due to Petitioner ' s concerns about Respondent sleeping

while on duty, Rebecca Wells (Wells), d irector of Human

Resources, requested, on February 23, 2011, that Respondent

submit to a fitness - for - duty examination at the school district ' s

expense. Following initi al testing, it was determined that

Respondent needed to see a specialist for evaluation for sleep

apnea.

9. On March 4, 2011, while Respondent was performing his

temporary assignment, Petrilla observed Respondent sleeping in

the administrative office lo cated in student services. When

Petrilla saw Respondent sleeping, he went to retrieve a camera,

but when he returned, Respondent was awake. Petrilla informed

Respondent that he was observed sleeping and that such conduct

would not be tolerated during sch ool hours.

10. While temporarily assigned to the media center,

Respondent, along with media center specialist Joanne Torlucci

(Ms. Torlucci) , worked with small groups of students.

Ms. Torlucci informed Respondent that on several occasions his

" head [woul d] drop down " while he was working with students.

When interviewed by school personnel, one student said that

Respondent had the " dropsies " when describing Respondent ' s

conduct.

11. On or about April 11, 2011, Dr. Brian Angsten

(Dr. Angsten) sent the S chool Board a letter regarding

Respondent ' s " care for hypersomnolence. " The letter indicated

that Respondent had a polysomnogram , which established that he

has severe obstructive sleep apnea. Dr. Angsten prescribed a

recommended plan of treatment and sta ted that " [p]rovided the

patient complies with the treatment outlined, he should be able

to perform his occupational duties without restriction. "

12. On May 4, 2011, Respondent was observed by Petrilla and

Losada sleeping during a district - wide meeting h eld in the media

center of BRMS. The next day, Petrilla sent Respondent an email

confirming what was observed during the district - wide meeting.

13. On May 17, 2011, Dr. Nicole Bentze (Dr. Bentze),

Respondent ' s primary care physician, sent the School Boar d a

letter regarding Respondent ' s medical condition. In her letter,

Dr. Bentze informed the School Board that Respondent was " fit to

return to full duty " and " may resume all of his responsibilities

in the classroom at Braden River Middle School. "

14. On May 24, 2011, the School Board received

documentation from Respondent ' s fitness - for - duty testing advising

that Respondent was " medically acceptable " for his position.

15. On May 31, 2011, OPS conducted an investigation based

on an allegation that Respon dent was observed sleeping on

March 4, 2011, and May 4, 2011. The investigation confirmed that

Respondent was sleeping during duty hours as alleged. Based on

this finding, the s uperintendent recommended termination of

Respondent ' s employment.

16. On Ju ly 7, 2011, the School Board received a letter

from Dr. Angsten regarding Respondent ' s treatment for obstructive

sleep apnea. Dr. Angsten stated that he was advised of the

s uperintendent ' s recommendation to terminate Respondent ' s

employment for falling as leep in class. Dr. Angsten advised that

Respondent " ha[d] not had enough time with proper treatment to

appropriately deem this a lost cause as of yet. " Dr. Angsten

informed the School Board that he had arranged a follow - up with

Respondent in one month, a nd at that time, he " w[ould] review his

compliance cards. " Upon receiving this letter, the

s uperintendent rescinded his recommendation to terminate

Respondent ' s employment.

17. On August 19, 2011, Respondent was observed sleeping

during a faculty meetin g at BRMS. The following day, Petrilla

informed Respondent of his observations. Petrilla warned

Respondent that any further episodes of sleeping while on duty

would be reported to OPS.

18. On November 2, 2011, Respondent was observed sleeping

during d uty hours by Petrilla, Losada, Assistant Principal Lori

Jones, and the s chool r esource o fficer , Carl McClellan. Petrilla

advised OPS of what he had observed , and OPS initiated an

investigation.

19. Debra Horne (Horne), who works as an i nvestigator with

OPS, interviewed four students that were supervised by Respondent

while in ISS. Three of the students reported that while they

were in ISS, they observed Respondent sleeping. The fourth

student stated that Respondent displayed conduct that suggested

he w as sleeping in the classroom.

20. As part of the investigation, OPS placed a hidden

camera in the ISS classroom at BRMS. The video evidence

established that on November 18, 2011, Respondent slept on

several different occasions; sometimes for seconds, ot her times

for up to 20 to 30 minutes.

21. On November 21, 2011, OPS met with Respondent and

informed him that video evidence documented him sleeping during

duty hours on November 18, 2011, while supervising students in

the ISS classroom. After reviewing the video, Respondent

acknowledged that he did , in fact , fall asleep while supervising

students. The School Board presented Respondent with the

opportunity to tender his resignation. Respondent opted not to

tender his resignation , but instead requested that he be granted

unpaid leave to pursue the option of disability retirement.

Respondent did not file for disability retirement once he learned

that the amount of his monthly disability income would be

insufficient to meet his financial needs.

22. On Ja nuary 17, 2012, the s uperintendent offered to

transfer Respondent to a bus monitor position. The position

would require Respondent to assist bus drivers with student

supervision. The environment on a school bus is typically much

louder than an ISS room a nd would provide greater stimuli to

Respondent.

23. On or about January 18, 2012, Respondent sent a letter

to Horne , wherein he requested additional information about the

bus monitor position. In his letter, Respondent advised:

As I have stated before, I now know I have

sleep apnea, do not know when or why it going

to happen except that it can (even with me

following Dr. orders and getting a sound

sleep).

24. On January 19, 2012, Respondent declined the bus

monitor position because, according to Respo ndent, there was " no

guarantee that he would not fall asleep while on a bus. " During

the final hearing, Respondent advised that in addition to the

above, he also rejected the bus monitor position because working

on a bus would possibly make it more diffic ult for him to see

about his elderly mother during the workday.

25. On January 19, 2012, Respondent was placed on paid

administrative leave , and on February 8, 2012, the s uperintendent

notified Respondent of his intent to recommend the termination of

Resp ondent ' s employment.

26. While on paid administrative leave, Respondent

underwent a second sleep study. The study, which was conducted

on May 23, 2012, confirmed that Respondent had obstructive sleep

apnea with disproportionate hypersomnolence. Respon dent was

offered several options for treatment including pharmacologic

therapy (stimulant medications) and clinical monitoring.

Respondent chose clinical monitoring and elected not to pursue

pharmacologic therapy due to his fears about the stimulant

medic ations. There was no credible evidence offered regarding

any limiting side effects associated with the stimulant

medications that Respondent would possibly be prescribed.

27. The treatment that Respondent currently receives is the

same treatment that he has received since March 2011. In fact,

the clinical monitoring is the same treatment that Respondent was

receiving when he fell asleep on several occasions while

supervising students.

28. Prior to the final hearing, Respondent was again

evaluated by Dr. Angsten. By correspondence dated September 11,

2012, Dr. Angsten advised,

In summary, this patient has complied with

all requests from his . . . physicians with

regard to his condition. He has made a good

faith effort to comply with CPAP therapy,

which has been verified by electronic

monitoring. Objective testing demonstrates

excellent control of his sleep apnea. As

such, any further hypersomnolence must be

attributed to an underlying medical

condition, not behavioral inadequacy on the

part of Mr. Sin ger.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 & 120.57(1), Fla. Stat. (2012).

30. Petitioner seeks to terminate Respondent ' s employment.

Petiti oner bears the burden of proving by a preponderance of the

evidence that just cause exists for Respondent ' s termination.

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d

DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883

(Fla. 3d D CA 1990).

31. Pursuant to section 1012.27(5) , the s uperintendent has

the authority to recommend to the School Board that an employee ' s

employment be terminated.

32. Pursuant to sections 1012.22(1)(f) and 1012.40, the

School Board has the authority to ter minate an employee ' s

employment.

33. Respondent is subject to section 6.11(1) of the

Policies and Procedures Manual of the School Board of Manatee

County (Policies and Procedures Manual) , which provides:

Any employee of the School Board may be

temporarily suspended, with or without pay,

or permanently terminated from employment,

for just cause including, but not limited to,

immorality, misconduct in office,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of a crime involving moral turpitude,

violation of the Policies and Procedures

Manual of the School District of Manatee

County, violation of any applicable Florida

Statute, violation of the Code of Ethics and

the Principles of Professional Conduct of the

Education Pr ofession in Florida.

I. Incompetence

34. Paragraph 26 of the Administrative Complaint alleges

that " Singer is incompetent as defined in Rule [6A - 5.5056] [2/] in

that he failed to perform his duties and lacks the physical

ability to perform them. " Rule [6A - 5.056] provides the

definition of " incompetency " as that term is used in section

6.11(1) of the Policies and Procedures Manual. Rule [6A - 5.056]

provides that incompetency is the " inability or lack of fitness

to discharge the required duty as a result of inefficiency or

incapacity. " Rule [6A -

the " lack of adequate physical ability " to discharge one ' s

required duty. As noted by Dr. Angsten, Respondent ' s

hypersomnolence " must be attributed to an underlying medic al

condition, [and] not behavioral inadequacy on the part of

Mr. Singer. " Respondent ' s underlying medical condition, which

causes him to sleep uncontrollably while on the job, has rendered

Respondent physically unable to perform his employment - related

dut ies. Accordingly, Petitioner has proved by a preponderance of

evidence that Respondent is incompetent within the meaning of

r ule [6A - 5.056]. 3/

II. Misconduct

35. Paragraph 24 of the Administrative Complaint alleges

that Respondent " engaged in miscond uct as defined in rule

[6A - . . . . " According to paragraph 25 of the

Administrative Complaint, Respondent engaged in misconduct by

violating r ule 6B - 1.006(3)(a), which requires that Respondent

make reasonable effort to protect students from con ditions

harmful to learning and/or to the students ' mental and/or

physical health and/or safety.

36. Despite the fact that Respondent knew that he was

suffering from a medical condition that caused him to sleep

uncontrollably, he , nevertheless , continued to supervise

students. Other than pursuing a failed course of clinical

monitoring, Respondent took no other steps to ensure that he

would not doze off while supervising students. The evidence

establishes that Respondent ' s repeated conduct of sleeping dur ing

duty hours , while supervising students , impaired his

effectiveness as a teacher ' s aide. See Lee Cnty. Sch. Bd. v.

Patricia Slade , Case No. 11 - 3199TTS (Fla. DOAH Nov. 15, 2011; Lee

Cnty. Sch. Bd. Dec. 6, 2011) ( a teacher cannot be effective when

asleep in the classroom). Respondent ' s conduct in this instance

speaks for itself , and the resulting impairment to his

effectiveness can reasonably be inferred. Walker v. Highlands

Cnty. Sch. Bd. , 752 So. 2d 127 (Fla. 2nd DCA 2000); Purvis v.

Marion Cnty. Sch. Bd. , 766 So. 2d 492, 498 (Fla. 5th DCA 2000);

Summers v. Sch. Bd. of Marion Cnty. , 666 So. 2d 175 (Fla. 5th DCA

1995).

37 . R espondent ' s violations, individually and collectively,

constitute just cause for his termination from employment

pursuant to section 6.11 of the Policies and Procedures Manual.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Manatee County School Board enter

a final order terminating Respondent ' s employment.

DONE AND ENTERED this 26th day of October , 2012 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3 060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of October , 2012 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2011,

unless otherwi se indicated.

2/ Effective April 5, 1983, Florida Administrative Code

Rule 6B - 4.009 was transferred to Florida Administrative Code

Rule 6A - 5.056. The Administrative Complaint correctly references

the substance of the rule and corresponding numbered para graphs,

but incorrectly references the chapter number for the rule.

Consequently, rule 6A - 5.056 will be substituted herein and

designated by the utilization of brackets ([]).

3/ Respondent suggest s that the School Board should place him in

a parent liai son position. A parent liaison, which was form er ly

known as a dean, was assigned to schools to assist with

discipline. The position requires an extreme amount of paperwork

and calls for the regular supervision of students. As Horne

testified, the " job d escriptions are different. The salaries are

different. A parent liaison is considered a step up in the pay

scale from a teacher aide. " The parent liaison position is

considered a promotion from the t eacher ' s a ide position.

Respondent is not qualified t o work as a parent liaison because

of his inability to remain awake while on the job.

COPIES FURNISHED:

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

L ois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Bob Gagnon, Interim Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34205 - 9069

Robert J. Singer

14703 1st Avenue East

Bradenton, Florida 34212

Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Post Office Box 639

201 North Franklin Street, Suite 1600

Tampa, Florida 33602

NOTICE OF RIGHT TO SU BMIT 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.