12-002579TTS Lee County School Board vs. Charles Staub Status: Closed Recommended Order on Tuesday, December 11, 2012.

Summary: The School Board did not prove, by a preponderance of evidence, that Respondent's employment should be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2579TTS

)

CHARLES STAUB , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to noti ce, a final hearing was conducted in this

case on October 25, 2012 , in Fort Myers, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

Lee C ounty School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Richard M. Ricciardi, Jr., Esq uire

Toll Law

Suite 121

1217 Cape Coral Parkway , East

Cape Coral, Florida 33904

STATEMENT O F THE ISSUE

The issue in this case is whether just cause exists to

terminate Respondent , Charles Staub 's (Staub) employment with

Petitioner , Lee County School Board (the "Board") , based on

violations of Florida Administrative Code Rule 6 B - 4.009 (3) and

(4) , for failing to perform duties appropriately, repeated

failures to obey direct orders, or misconduct in office.

PRELIMINARY STATEMENT

On May 31, 2012, the Board issued a Petition for Termination

of Employment alleging just cause for the termination of

Res pondentÓs employment. Staub timely filed a request for a

formal administrative hearing before the Division of

Administrative Hearings (DOAH).

At the final hearing, the Board called the following

witnesses: Ranice Monroe, director of Professional Standar ds

and Equity for the Board; Fred Purvis (Purvis) , plumbing

supervisor; James Cash (Cash) , assistant plumbing supervisor;

Victoria Ramina, coordinator for maintenance; and Reginald

Snell, director of construction and maintenance services. The

Board 's Exhi bits 1 through 15 were accepted into evidence.

Staub testified on his own behalf and offered Exhibits 1 through

5 in to 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 or was not used to supplement competent evidence ,

it will not be independently used as a basis for any finding

herein.)

The parties advised the undersigned that a transcript of

the final hearing would be o rdered. 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 November 16, 2012 . Each party timely submitted a proposed

recommended order and both parties' subm issions were given due

consideration in the preparation of this Recommended Order. 1/

FINDINGS OF FACT

1. The Board is duly constituted to operate, control, and

supervise all free public schools within the school district of

Lee County, Florida, pursuant to Article IX, section 4(b) of the

Florida Constitution and section 1012.23, Florida Statutes . 2/

2. At all times pertinent hereto, Staub was an employee in

the school district. The school district has a collective

bargaining agreement (the ÐAgreementÑ), but Staub is not a

paying member of the union covered by the Agreement. Rather,

Staub is the member of a professional union having no

involvement with the Board. Staub is, however, an ÐemployeeÑ

within the collective bargaining unit covered by the Agree ment.

3. Staub has been a plumber for over 20 years, receiving

his journeyman status around 1980. He worked as a plumber for

many years before taking a job with the City of Cape Coral in

the wastewater treatment department. He left that position when

h ired by the Board as a plumber for the school district in 2003.

4. During his employment with the Board, Staub was one of

several plumbers in the maintenance department. At the time of

the issues relevant to this case, there were six or seven other

plumb ers in the department. They were supervised by Purvis, who

was in turn supervised by Snell. When Purvis was absent, his

duties were handled by Cash. It was the duty of the supervisors

to give the plumbers job assignments each day. The supervisors

were also responsible for prioritizing the job assignments so

that the most important assignments were completed first.

5. Each day, the plumbers would gather at the district

office for the purpose of receiving their assignments,

transferring any needed tools into a district vehicle, and going

from school to school to complete their assigned tasks. For

most of his career with the Board, Staub exhibited good work

habits and did well. That began to change in recent years.

Beginning in 2010, Staub began to rece ive warnings and

reprimands concerning his work and his interaction with other

employees. Those shortcomings form the basis for the BoardÓs

decision to seek termination of StaubÓs employment.

6. The Board has alleged three areas of concern which it

feels identify StaubÓs shortcomings and failures as an employee

of the school district. Facts addressing each of those areas of

concern are set forth below.

Failure to perform duties as expected

7. On March 22, 2010, Staub replaced a leaking hot water

heater at Lehigh High School (ÐLehighÑ). The existing hot water

heater had been on a shelf attached to the wall with brackets.

Staub replaced the hot water heater with a new, five gallon

heater. However, upon removing the old heater Staub noticed

that the she lf brackets were of an inferior quality and were not

sufficient to hold the new heater safely on the shelf. Upon

completing the installation of the new heater, Staub placed the

heater on concrete blocks on the floor rather than placing it on

the wall shel f with the inferior brackets.

8. Staub then contacted the BoardÓs welders to order new

brackets which would be Ðup to codeÑ and would more properly

hold the shelf in place. While the brackets were on order,

Staub believed the heater could sit on the conc rete blocks

safely. He did fail, however, to properly install a drain pan

for the new heater. He also did not have the pressure relief

line properly affixed so as to prevent possible damage if the

new heater should leak. Staub also admits to failing to remove

a rubber glove he had placed over the smoke detector while he

was working on the heater.

9. The building manager at Lehigh complained to Purvis

about the work Staub had done on the new heater. Purvis looked

at the situation and gave Staub a verb al warning about the

quality of his work on the hot water heater. The warning was

then reduced to writing, including directions for Staub to

return to Lehigh and correct his work. Staub complied with the

written directive, correcting all of his work on t he job within

a couple of weeks .

10. Staub maintains that his work was completely

satisfactory. The testimony of Purvis was more persuasive

concerning this incident.

Insubordination by failing to follow orders of superiors

11. On or about March 28, 20 12, Staub and Cash were

working on a job at Cypress High School (ÐCypressÑ). A bathroom

had flooded and a substantial amount of plumbing work was

requi red to correct the situation. Staub and Cash capped off

the water coming into the bathroom in order to prevent further

flooding. Then they began the process of making necessary

repairs to the walls and floor, including filling holes with

concrete. They then began installing new fixtures to replace

the ones that had been leaking.

12. At some point during the day, Staub left Cypress to go

to a local Home Depot store to buy some supplies needed for the

job . While he was gone, Cash Î - who was acting as supervisor

that day due to the absence of Purvis Î - received a call from

the building manager at Orangewood Elementary School

(ÐOrangewoodÑ) about a leaking toilet in a special education

classroom. The toilet needed to be repaired as soon as

possible. Cash called Staub at 11:45 a.m. and told him to go by

Orangewood to make the repair before the end of the wor k day

(3:30 p.m.) . Staub replied that he would take care of the

toilet as directed .

13. When Staub finished purchasing the supplies he needed

at Home Depot, he went directly back to Cypress rather than go

to Orangewood . Cash had already left Cypress b y that time. It

was StaubÓs intention to ÐtendÑ some concrete which was drying

in order to continue work on the repairs and the fixture

installation. Staub unilaterally decided that the work at

Cypress had a higher priority than repairing the toilet at

O rangewood. He worked at Cypress until the end of his work day,

then returned to the office for end - of - day debriefings. When

Staub told Cash he had not gone to Orangewood , Cash was Ðnot

happyÑ with Staub. Cash took the Orangewood work order form,

wrote Ð #1 3/29/12Ñ on it, and gave it back to Staub. The #1 was

an indication that the work was to be StaubÓs first priority the

next day. Staub did as he was instructed, completing the toilet

repair on the morning of the 29 th .

14. On or about December 6, 201 1, at the beginning of the

work day, Purvis called the plumbers together for a meeting.

After handing out assignments for the day, Purvis told the

employees to meet behind the office to help unload materials

from a van. He instructed the men not to go to their cars to

get tools and equipment prior to unloading the van. All of the

plumbers except Staub went immediately to the van to unload it

as directed.

15. Staub , however, first went to his car to get his tools

for the work day. When Staub didnÓt sho w up at the van with the

others, Purvis called Staub on his work cell phone. After three

to five calls, Staub finally answered. Purvis asked Staub where

he was and Staub said he was at his van . In response, Purvis

simply shrugged his shoulders in disgus t because he had become

tired of StaubÓs behavior . When Staub came back to the office

area, Purvis called him aside and told him to get on with his

work assignments , rather than helping to unload the van. Staub

does not remember hearing Purvis say to go to the van prior to

getting tools from their cars, but all the other plumbers

apparently did. StaubÓs testimony in that regard is not

credible.

Failing to dedicate himself to high ethical standards

16. On or about February 2, 2011, Staub went to Gateway

Elementary School for an assigned project. While there, Staub

discussed the use of iodine with some of the kitchen staff,

pointing out the existence of acids in the iodine. Based upon

whatever Staub told the kitchen staff, a complaint was made

about Stau b to his supervisors. The complaint included

allegations that Staub had a poor attitude, provided poor

customer service, and did not respond timely. However, there is

no credible, non - hearsay evidence in the record to substantiate

those allegations.

17. Staub said the kitchen staff specifically asked him

about the iodine , and he simply pointed them to the ingredients

on the bottle. That explanation lacks credibility in light of

the complaints made by staff. However, there is not sufficient

evidence in the record to establish what actually occurred.

18. At around the same time, Staub went to Sunshine

Elementary to complete an assigned job. While there, he spoke

with the kitchen manager concerning a disagreement about a prior

work order. The kitchen ma nager made a complaint to StaubÓs

supervisors, claiming that Staub treated her rudely. Staub was

given a written warning , based on the allegations made by the

kitchen manager. Staub said that there was no argument between

he and the kitchen manager; they simply discussed a prior work

order. There was no testimony from the kitchen worker, so it is

impossible to verify what occurred. Again, the absence of

direct, non - hearsay testimony precludes a finding that Staub

acted in the fashion alleged by the Boar d. However, in light of

the fact that a complaint was filed by the kitchen manager, it

is more likely than not that there was some disagreement between

her and Staub.

19. On July 19, 2011, at the end of the work day, Staub

was sitting in the conference r oom at the maintenance office

along with other maintenance workers. Staub and an employee

named Christiansen, a carpenter, began arguing about something.

Christiansen was upset with Staub and said something to him

about the matter . The men argued briefly and Christiansen began

to walk away. As he did , Staub called C hristiansen a vulgar

name. C hristiansen then left the office , followed by all the

other employees Î - including Staub Î - as they went to their

private cars to go home.

20. When C hristiansen l eft the parking lot in his car ,

Staub was close behind him . C hristiansen and Staub were both

traveling in the same direction, C hristiansen , as he headed

home ; and Staub , as he ostensibly went to a meeting at Shadow

Pines Air Park (Shadow Pines) . It is al leged that C hristiansen

was frightened and felt he was being harassed by Staub, but

C hristiansen did not testify , and there was no non - hearsay

evidence presented to verify that allegation. StaubÓs written

statement made in close temporal proximity to the events

mentions the meeting at Shadow Pines, thus giving some

credibility to his testimony. Two unsworn, written statements

by witnesses Î - though insufficient evidence by themselves on

which to base a finding of fact Î - support StaubÓs contention

that he remained fairly calm during the argument, up to the

point where he called Christiansen a name. An eyewitness to the

event, Purvis, remembers Staub yelling the vulgar name at

Christiansen. Two employees apparently talked with Christiansen

on his cell pho ne while Staub was tailgating him, but no

competent, non - hearsay evidence was offered to prove that fact.

21. There is competent evidence that Staub and

Christiansen argued and that Staub drove behind Christiansen as

they left work on that day. Further, it is clear Staub called

Christiansen a vulgar name. The remainder of the incident was

not sufficiently proven by admissible evidence.

22. On September 23, 2011, Staub went to Gulf Middle

School ( ÐGulf MiddleÑ). His daily labor sheet does not include

G ulf Middle as a place he worked that day. However, he did go

to the high school ( Ð Gulf High School Ñ ) which is adjacent to

Gulf Middle. Staub w alked over to Gulf Middle for the purpose of

getting a work ticket signed from a previous dayÓs job. While

at th e school, he decided to eat lunch at the school cafeteria .

It is a common practice among maintenance workers to eat at the

cafeteria of schools where they are working .

23. The building superintendentÓs office was in the

cafeteria area. The superintendent was not at his office when

Staub arrived, so Staub waited on the stage area of the

cafeteria for his return. There was a photographer set ting up

on the stage preparing to take pictures of students and staff.

While Staub was there, no one was getting the ir picture taken.

Staub was asked by the teacher supervising the photographer if

he would want to pay ten dollars to get his picture made as part

of a school fundraiser. Staub at first declined, but then

agreed to help the school out by having his pictur e taken.

24. Later, when the pictures were returned to the school

by the photographer, StaubÓs picture was included. Because he

was an adult, his picture had been placed on an identification

badge rather than returning simply as a photograph. The

ident ification badge indicated that Staub was ÐFacultyÑ at Gulf

Middle. At the time his picture had been taken, Staub was

wearing his work uniform which clearly identified him as a Lee

County School District employee. He was also wearing his

employee badge.

2 5. Upon receipt of the picture, Purvis turned it over to

his supervisor, Snell, because he believed it was inappropriate

for Staub to have a Gulf Middle identification card. Snell and

Purvis were concerned that something inappropriate was going on

vis - à - vis the identification card. Despite their concern, it

appears the issue of the picture qua faculty badge was

completely innocent.

26. Another allegation against Staub by his supervisors

was that Staub frequently failed to sign in when he visited

schools to perform his work tasks. When signing in, Staub would

sign as ÐC. PlumberÑ rather than by his real name. No competent

evidence, i.e., school sign - in sheets, was offered into evidence

to support the allegation, however. Staub denies the

allegation.

St aubÓs Employment History

27. In 2004 and 2005, StaubÓs annual performance

evaluations showed him to be ÐEffectiveÑ in all categories of

performance. His supervisor wrote ÐGood manÑ at the end of

those two evaluations.

28. From 2007 until 2009, Staub be gan to receive less

satisfactory evaluations, with many areas of performance marked

as ÐInconsistently practiced.Ñ In t he area of Ð interpersonal

skills Ñ on the evaluation form, Staub received several less than

satisfactory scores. Then, in 2010, the eval uation indicated

that all areas were again in the Effective category.

29. The 2011 evaluation, however, was a different story.

Staub received ÐUnacceptable level of performanceÑ scores on two

benchmarks in the interpersonal skills area. Three of th e

s kills in that portion of the evaluation form were marked as

Ð i nconsistently practiced . Ñ The evaluation form contained an

addendum outlining three written sanctions that had been issued

to Staub: 1) A formal verbal warning for unsatisfactory work;

2) A wr itten warning related to the customer complaint at

Sunshine; and 3) A written warning regarding the incident at

Gateway. The supervisor said that, ÐWhile [Staub] meets the

standard for the skills required to be a plumber, he is below

standard regarding cu stomer service.Ñ

30. Staub received a verbal warning (April 13, 2010) , and

four written warnings (two on February 14, one each on

October 26 , and December 6, 2011). His personnel file also

contains several reports of improper work, unacceptable

behavior , and conflicts with other employees. The Board

properly followed its protocol for progressive discipline

concerning the actions it took against Staub.

31. Other than the formal incidents set forth above, there

is an underlying tone of coolness between Staub and the

witnesses who testified. It does not appear that Staub gets

along well with his fellow employees.

CONCLUSIONS OF LAW

32. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding , pursuant to a contract with

the B oard. The proceedings are governed by s ections 120.57

and 120.569, Florida Statutes . The Superintendent of Schools

for Lee County, Florida, has the authority to recommend to the

Board that an employee be suspended or dismissed from

employment. § 1012.27 , Fla. Stat.

33. The 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.

34. The burden of proof in this proceeding is on the Board

to prove, by a preponderance of the evidence, just cause exists

to suspend or terminate StaubÓs employment. McNeil v. Pinellas

Cnty . Sch . Bd . , 678 So. 2d 476 (Fla. 2d DCA 1996). See also

Cisneros v. Sch. Bd. of Miami - Dade Cnty. , 990 So. 2d 1179, 118 3

(Fla. 3 d DCA 2008)(ÐAs the ALJ properly found, the School Board

had the burden of proving the allegations . . . by a

preponderance of the evidenceÑ). This burden is contrary to

other penal cases in which actions must be proven by clear and

convincing ev idence ( see e .g. , Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987)), but is the accepted standard of proof because

no license or certification is at issue in this proceeding.

Nonetheless, as this is a disciplinary proceeding in which the

Board seeks to te rminate StaubÓs employment, the statutes, rules

and policies relied upon by the Board must be strictly

construed, with ambiguities resolved in favor of Staub. See

Lester v. DepÓt of ProfÓl & Occ. Reg. , 348 So. 2d 923, 925 (Fla.

1 st DCA 1977).

35. "Just c ause" is the standard of discipline applied to

actions against support personnel. See Support Personnel

Association of Lee County (SPALC) Agreement (the ÐAgreementÑ) ,

Provision 7.10. However, just cause is not defined in the

Agreement. Staub is governed by the Agreement despite not being

a paying member of the union. That is because, as an employee

within the collective bargaining unit, StaubÓs individual

interests are subordinate to the interests of all employees

within the unit. See NLRB v. Jaggars - C hiles - Stovall, Inc. , 639

F. 2d 1344, 1347 ( 5 th Cir. 1981); Bouchard Transp. Co., Inc. v.

Connors , 811 So. 2d 787 (Fla. 4 th DCA 2002).

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

just cause, school boards have historically had discretion to

set standards which subject an employee to discipline. See

Dietz v. Lee Cnty . Sch . Bd . , 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 employe e'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).

37. The 1999 Florida Legislature amended sec tion

231.36(1)(a), Florid a Stat utes (the former statute governing

public education in Florida) five years after the Dietz case was

entered. The amendment removed school boardsÓ Ðabsolute

discretionÑ to define just cause for purposes of dismissing

staff members . Instead, the Stat e Board of Education was given

the authority to define just cause by rule. After the creation

of the Florida K - 20 Education Code (the ÐCodeÑ) in 2002, the

provisions of former section 231.36(1)(a) , Florida Statutes,

were transferred to the Code, and are n ow found in

sec tion 1012.33(1)(a) and (4)(c).

38. The rule created by the State Board of Education is

now codified as Florida Administrative Code Rule 6A - 5.056. The

rule reads in pertinent part as follows:

6A - 5.056 Criteria for Suspension and Dismissa l .

Ð Just causeÑ means cause that is legally

sufficient. Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued

are [sic] set forth in s ections 1012.33 and

1012.335, F.S. In fulfillment of these

laws, the basis for each such charge is

hereby defined:

* * *

(2) ÐMisconduct in OfficeÑ means one or

more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in Rule 6B - 1.001, F.A.C.;

(b ) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

* * *

(4) ÐGross insubordinationÑ means the

intentional refusal to obey a direct order,

reasonable in nature, and given by and with

proper authority; misfeasance, or

malfeasance as to involve failure in the

performance of the required duties.

(5) ÐWillful neglect of dutyÑ means

intentional or reckless failure to carry out

required duties.

* * *

39. The evidence in this case supports the BoardÓs

contention that Staub is not an agreeable and likable employee.

It appears he has some difficulty interacting appropriately with

his peers and superiors.

40. However, there is not a preponderance of evidence

supporting the al legations that Staub failed to perform his

duties, was insubordinate, or failed to dedicate himself to high

ethical standards. While there is some evidence to generally

acknowledge the bas e s of the claims, there is not a

preponderance of evidence, as pres ented by the Board, to

substantiate just cause for termination of StaubÓs employment.

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, rev ersing its decision to

terminate the employment of Respondent, Charles Staub for the

reasons set forth above.

DONE AND ENT ERED this 11 th day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Adm inistrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hear ings

this 11 th day of December , 2012 .

ENDNOTES

1/ Respondent filed a ÐFinal JudgmentÑ with a cover letter

identifying it as a proposed final judgment. The document was

accepted as RespondentÓs proposed recommended order, although it

did not reference the exhibits or cite to the transcript.

2/ Unless specifically stated otherwise herein, all references

to Florida Statutes shall be to the 2012 version.

COPIES FURNISHED :

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

Matthew S. Toll, Esquire

Toll Law

Suite 121

1217 Cape Coral Parkway , East

Cape Coral, Florida 33904

Dr. Joseph Burke, Superintendent

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

Lois Teppe r, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1 514

325 West Gaines Street

Tal lahassee, Florida 32399 - 0400

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.