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Title: Board of School Commissioners of Mobile County and David Shack
Date: 
Arbitrator:  Edward J. Gutman
Citation: 2005 NAC 120

THE MATTER OF THE CONTESTED TERMINATION
HEARING BETWEEN

 


Board of School Commissioners of
Mobile County, Alabama,

Employer

AND

David Shack

Employee

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FMCS No. 05-04572

DECISION

Hearing Officer: Edward J. Gutman

               THE PARTIES

Employee - David Shack

Employer - The Board of School Commissioners of Mobile County, Alabama (the Board or Mobile County Public Schools (AMCPS))

INTRODUCTION

David Shack was employed as a custodian at MCPS's Indian Springs Elementary School for the 2004-05 school term.  On May 13, 2005,[1] he was given notice by MCPS Superintendent Harold W. Dodge, that he was recommending Mr. Shack's termination from employment, as provided in Ala. Code '36-26-102 for Failure to Perform  Duties in a Satisfactory Manner, Neglect of Duty, Insubordination and Other Good and Just Cause.

On June 7 Superintendent Dodge notified Mr. Shack that the Board had accepted his recommendation to terminate Mr. Shack.  Mr. Shack filed a Notice of Contest of his termination in accordance with Alabama Code ''36-26-103(b) and 36-26-104.

The Undersigned received a Apriority appointment by the Federal Mediation and Conciliation Service on August 16, to serve as Hearing Officer in this contested termination matter.  A de novo hearing was conducted in Mobile, Alabama at 182 Saint Francis Street, Suite 300, Mobile, Alabama 36602 on October 6 during which witnesses were sequestered.  The parties stipulated that all of the procedural steps had been completed in accordance with State law and that the case was properly at the hearing stage.  During the course of the hearing all witnesses testified under oath, the parties were afforded full opportunity for the presentation of evidence, examination and cross-examination of witnesses and oral argument.  A stenographic record of the hearing was made and a transcript of the proceedings was provided to the Hearing Officer.

The parties elected to file post hearing briefs. The Hearing Officer received timely briefs from both parties. They have been carefully considered.

THE ISSUE

The parties stipulated that the issue presented was whether the evidence and information submitted to the Hearing Office by MCPS was sufficient to establish that MCPS terminated Mr. Shack for failure to perform his duties in a satisfactory manner, neglect of duty, insubordination or other good and just cause. [2] 

  PERTINENT PROVISION OF ALABAMA LAW

Ala. Code ' 36-26-102 - Upon completion of an employee's probationary period, said employee shall be deemed employed on a nonprobationary status and said employee's employment shall thereafter not be terminated except for failure to perform his or her duties in a satisfactory manner, incompetency, neglect of duty, insubordination, immorality, justifiable decrease in jobs in the system, or other good and just causes; provided, however, such termination of employment shall not be made for political or personal reasons on the part of any party recommending or voting to approve said termination.

ARGUMENTS  OF THE PARTIES

The Board

In support of its termination of Mr. Shack for failure to perform his duties in a satisfactory manner, neglect of duty, insubordination or other good and just cause, the Board argues in its Brief that the following confirm the justification for the termination based on these grounds:

            1.  On February 21, Mr. Shack refused a request from his principal, Ms. Rosalie Howley, to change his schedule unless he was given comp time; when his request was denied he got mad and huffed out. Bd. Brief at two

2.  The most blatant example of Mr. Shack's refusal to perform occurred when his Principal, asked him to pick up trash and he responded why don't you get (co-worker) Rochelle (Reed) to do it and hollered at her in front of teachers and students why are you always dogging me.  Bd. Brief at two

3.   Mr. Shack interrupted a class when he removed a student from class without permission and brought the student to the office. Bd. Brief at two

4.   Mr. Shack responded that he was not on the clock when a teacher reported an overflowing toilet in the boys' bathroom.  Bd. Brief at three

5.   Mr. Shack threatened Ms. Hannah, the bookkeeper. Bd. Brief at three and four

6.   Ms. Howley learned from a teacher, Ms. Meriwether, that Mr. Shack displayed inappropriate behavior with female students by throwing candy or bubble gum to them.  Ms. Howley had a talk with Mr. Shack and gave him a verbal warning. Bd. Brief at four

7.   Ms. Howley had several reports from her assistant regarding Mr. Shack's interaction with students including a call from an upset parent who complained that Mr. Shack had given her daughter a dollar.  Ms. Howley once again called Mr. Shack in and told him not to do this, but the complaints of his inappropriate interaction with students kept coming in. Bd. Brief at five

8.  Mr. Shack clearly demonstrated his inability to maintain positive working relationships with teachers and staff at Indian Springs.  He was unable to control his temper, sometimes placing other in fear for their safety.  The Board has a duty to protect all of its employees and this type of behavior cannot be tolerated by anyone employed by the system.  Bd. Brief at six

Mr. Shack

            Mr. Shack had been a MCPS employee since 2002.  His performance during that time until February had been entirely satisfactory.  The testimony of the Board's witnesses failed to support the allegations of poor performance, neglect of duty, insubordination or any other good and just cause for his termination.   

The behaviors which were described by the Board's witnesses for which he was terminated were never considered important enough for any of them to be documented in writing by the school administration nor was Mr. Shack given any written reprimand or other alternative form of discipline before being terminated. 

The Board enumerated thirteen grounds for the termination, all but four of which were duplicative and lacked specific dates of occurrences.  He also argues that the testimony to substantiate the grounds were done so with hearsay testimony on behalf of available and unavailable witnesses and almost all of the incidents lacked any documentation as required by school policy.[3]

FINDING OF FACT

Set forth in this Section is a summary of the testimony given by the Board's witnesses and Mr. Shack. Other facts and evidence may be noted in the Conclusion of Law section below to the extent knowledge of either is necessary to understand the Hearing Officer's Decision    

Prior to his employment as a permanent custodian at Indian Springs, Mr. Shack had been employed as a custodian at MCPS's Nan Gray Davis School.  He worked as a substitute custodian at Indian Springs during the 2003, 2004 school terms.  According to Ms. Howley, he had done such an outstanding excellent  job as a substitute that she requested him to work at Indian Springs as a permanent custodian for the 2004- school term; that Awe were excited about having a male on campus. (Tr. 184) In fact, she testified, he had a really good relationship with the teachers, (Tr. 267) that she knew of no problems with his work or behavior until February. (Tr. 185).That is when things took a turn for the worse according to Ms. Howley, beginning when Mr. Shack got in my face . . .  when he started yelling at me when I asked him  . . .  to do things. (Tr. 250) 

The Turn for the Worse

The first incident Ms. Howley described occurred in February.  Mr. Shack brought a student to her office and told her that he had seen the student spit on the concrete wall.  According to Ms. Howley, she assumed that Mr. Shack had brought the student to her directly after witnessing the spitting incident. She thanked him for bringing the student to her but later, after speaking to the teacher, learned that Mr. Shack had gone into the classroom without authority and "interrupted instruction and took the child out of the classroom and brought him" to her office.  (Tr. 186)  According to Mr. Shack, however, he saw the student spit on the wall and followed him to his classroom; knocked on the classroom door and after excusing himself to the teacher, told her that the student had spit on the wall.  The teacher told the student to go with Mr. Shack to the office.  He took the student to the office and explained the circumstances to Ms. Howley and she commended him for doing a real good job. (Tr. 371) [4]

The turn for the worse according to Ms. Howley was evidenced by tension among the custodians during the school year beginning after Christmas 2004.  She notices a "resistance" from Mr. Shack.  A blatant example happened in February when she asked him to pick up the trash in front of the school one day and he answered why don't you get Rochelle (Reed) to do it, why are you always dogging me.  (Tr. 219)

Another incident was reported to Ms. Howley by P.E. teacher, Ms. Rosa Monteiro. She testified that one morning a student told her that the toilet in the boys' rest room had overflowed.  She checked and found that a jacket had been stuffed in a toilet.  She reported the problem to Mr. Shack but he replied that he was not on the clock and walked away. (Tr. 141)  Later, at Ms. Howley's request, Ms. Monteiro wrote and signed a statement describing the incident as having occurred on February 11.  (Board Exhibit No. 3)

A further example of Ms. Howley's growing discontent with Mr. Shack occurred on February 21 when she asked him to change his schedule to come in later in the day and lock up at the end of the day. She explained that she did not want to be alone in the school after hours.  He refused.  He said that he had to take his mother to church, but later he came back and said that he would stay late if he was given comp time. When Ms. Howley told him that she would not give him comp time, he got mad and huffed out.  (Tr. 200)  According to her testimony, he was hollering at me and he pointed his finger at my face. (Tr. 223) According to Mr. Shack, Ms. Howley hollered at him with her finger touching his nose and called him all kinds of names. (Tr. 359)

Also in February, Ms. Doris T. Meriwether, a substitute teacher at Indian Springs, reported to Ms. Howley that she had seen Mr. Shack throwing candy to the girls. Earlier, Ms. McCaskey, the Assistant Principal, had reported to Ms. Howley that a parent had called her and said that she was upset because Mr. Shack had given her daughter a dollar.  Ms. Howley, testified that she  spoke with Mr. Shack and warned him that people can misconstrue such things and told him people go to jail for this type of thing, please don't do it.  (Tr. 194) She made it clear to him that giving things or exchanging things, candy or whatever with students, was inappropriate and that he replied that he understood.  (Tr. 202) [5]

Ms. Howley also testified that she had received reports from teachers that Mr. Shack would make faces at the students through door windows or when the children lined up, he would horseplay with them (Tr. 194) 

On February 22 an incident occurred involving Mr. Shack and teacher Amy Taylor.  According to Ms. Howley, and a written statement by Ms. Taylor, Mr. Shack had come to Ms. Taylor's room, interrupted her class and gave her a $5 bill. He told her that it was for the Christmas present that she had given him. He said that he didn't want any present from her because of the way she dogged him.  He left the money in a box hanging outside the teacher's room.  Later in the day, he asked another teacher to give this money to this lazy woman who can't pick up this money. (Bd. Exhibit No. 9) 

A confrontation took place on February 22 between Ms. Angela Hannah, the bookkeeper and secretary to the school principal, and Mr. Shack.   Ms. Hannah testified that on a day in April or May - she could not remember which month but on cross examination placed the time as February 22 (Tr. 55) - she heard that Mr. Shack was waiting for the other custodian to return from lunch to relieve him.  Ms. Hannah approached him in the hall and told him that he could go to lunch.  Mr. Shack ignored her and she said it again, but again he ignored her. She then commented that he was acting like a child and he turned around and gave her one of the worst looks she had ever seen: it scared her. She testified that she called her husband but continued to perform her regular duties.

A short while later, Ms. Hannah encountered Mr. Shack as she was leaving the building on her way to the bank and said to him that she did not know why he was upset with her, that she didn't' do anything to him.  According to her testimony, he pointed his finger at her and said you're going to get yours, yours is coming. You just wait, yours is coming. (Tr. 44)   Mr. Shack testified that he meant that he was going to get in touch with someone to have a meeting about it. To get to the bottom of it.  He described himself as a religious person and did not mean that he was going to do anything to harm her. (Tr. 356-357)

When Ms. Hannah returned to the building from the bank, she told Ms. Howley about the incident and said that she wanted to press charges against Mr. Shack; that he had threatened her and it scared her to death. Ms. Howley thought that Maybe they were just having a bad day and asked her not to press charges and she did not. (Tr. 45)[6]     

However, because the tension in the school was affecting instruction, Ms. Howley called Mr. Bosarge, Human Resources for MCPS. (Tr. 210-211) [7] He instructed her to write a memo to him listing her concerns and to place Mr. Shack on administrative leave pending a conference with him. (Tr. 282)   She wrote the memo to Mr. Bosarge that day, with a copy to Mr. Shack, and requested that Mr. Shack be removed from Indian Springs.   The memo cited the following incidents that have disrupted the normal order of the school business that have involved Mr. David Shack . . . :

! On several occasions he has behaved in a rude and unsuitable manner toward her and members of the staff;

! Mr. Shack verbally threatened Ms. Hannah on February 22,

! Mr. Shack overstepped his bounds by correcting student behaviors - the most recent occurred when he entered a classroom and demanded that a student come with him without consulting the teacher or the administration.[8]

! Several teachers complained about his peeking through the glass door windows and making faces at the students and disrupting instruction.  (Bd. Exhibit No. 6)

When asked whether she had considered progressive discipline, Ms. Howley testified that she requested them to move Mr. Shack somewhere else, but they said that they had no place to move him at the time. (Tr. 251) She explained that a conference was held with Mr. Bosarge, herself and Mr. Shack on February 23 or thereabouts that week. (Tr. 283)  She stated that We tried to work with him; that she thought we got things cleared up.  She told Mr. Bosarge what a good worker he had been; he had been a fine person; that she did not know where all this attitude . . .  mood swings was coming from, because he had been cooperative.    (Tr. 252)

The record shows that at the conclusion of the conference with Mr. Bosarge, who is still employed but did not testify, the decision was made to allow Mr. Shack to return to school, and Ms. Howley agreed because she felt that we could work it out, Awe thought things were going to smooth out  . . .  he was going to come back and we were going to start over again and try to work things out. (Tr.279, 286) [9]  According to Ms. Howley, the understanding of the parties was that that meeting resolved all issues. (Tr. 286)  Mr. Shack returned the following Monday, February 28, (Tr. 281-284) and he and Ms. Hannah apologized to each other. (Tr. 64, 360-361)   However, according to Ms. Howley when he came back he still - the mood swings, he still had the attitude. (Tr. 279)

Post February 24, Conduct

When asked whether there were any incidents that occurred after the meeting with Mr. Bosarge, Ms. Howley said, No, it was just the tension. You could feel the tension in the air. (Tr. 254)  However, on further questioning, after conceding that March was a good month (Tr. 290) she stated that apparently there were incidents after February because she had listed them on a memo she sent to Paul Tate, Assistant Superintendent, dated April 26. The memo recommended that Mr. Shack be terminated and stated several incidents have occurred that are cause for concern in regards to the behavior of Mr. David Shack.  She explained that she made the recommendation for terminating him because things were not improving , that dealing with him was taking too much of her precious time, that she needed to be doing things, working with (her) teachers and (her) children and not refereeing . . .   (Tr. 315).  When asked why she did not consider revisiting with Mr. Bosarge or trying to impose some kind of lesser punishment such as suspension or reprimand she responded AI don't know. I just B stay very busy and I maybe it's my fault. (Tr. 322)  

She testified that all of the items listed in the memo to Mr. Tate happened after February 23 (Tr. 256); as far as she knew in the month of April. (Tr. 290) The memo listed the following:  

! A parent called the office and spoke to the Assistant Principal, Ms. McCaskey, regarding Mr. Shack giving his daughter a $1.  The parent was upset and Ms. McCaskey assured the parent that she would immediately look into the situation. Ms. McCaskey informed Mr. Shack that this behavior was inappropriate.

! Ms. Meriwether, a substitute aide, witnesses Mr. Shack giving candy to fifth grade girls and thought it was inappropriate behavior on his part.    

! Ms. McCaskey and Ms. Stamps-Johnson, a district reading coach, witnessed Mr. Shack pretending to cut fifth graders' hair with a pair of scissors. Ms. McCaskey intervened immediately.

! Ms. Whiting, a fifth grade teacher and Ms. McCaskey expressed concerns about Mr. Shack giving ice cream to fifth grade girls and that he continued even after Ms. McCaskey questioned him. [10]

! Ms. Dinkins, a fifth grade teacher, witnesses on several occasions Mr. Shack behaving in an inappropriate way that border lined flirting with a number of fifth grade girls and that Mr. Shack was reprimanded for this inappropriate behavior. [11]

! Ms. Monteiro. P.E. Teacher, witnesses Mr. Shack horse playing with fifth grade boys and girls - behavior inappropriate for an adult.

The memo also stated that on several occasions Mr. Shack refused to assist the other two custodians, Ms. Reed and Ms. Byrd, when they needed help.  They complained about his aggressive behavior toward them and that they expressed fear about being left alone with him especially after an incident on April 20 when an explosive verbal confrontation took place.  According to the testimony of Ms. Reed, she engaged in a verbal altercation with Mr. Shack over their respective responsibilities in April.  According to Ms. Reed, Mr. Shack "buffed up" in her face.  They accused each other of being "low down, "two faced.  (Tr. 79-82)  Ms. Reed called her husband because she was afraid "as him being a male he was going to hit me or put his hands on me or something" (Tr. 84) The confrontation apparently continued when Ms. Reed went to Ms. Hannah's office to tell her that she was leaving.  Mr. Shack came in and according to Ms. Hannah, They were just hollering at each other . . . he never did anything and neither did she as far as  . . . raising a hand or anything.  They just were hollering back and forth at each other. (Tr. 51)  

Ms. Reed did not see Shack any further that day but testified that she felt "uncomfortable working with him."  She explained that she did not "like a man coming up toward a woman even in a way as though he would do her harm." (Tr. 86)   Ms. Reed testified that she quit her job at MCPS because of the altercation with Mr. Shack. (Tr. 95-96)  She reported this to Mr. Bosarge in Human Resources (Ms. Howley was not in school during that period) because she "felt like I needed to talk to someone since my principal wasn't there to let them know what was going onY. [12] On cross examination, however, she testified that the altercation started over "something petty." (Tr. 100)    

The testimony revealed reasons why each might have felt tension with the other.  She said that he was resistant to taking direction from her.  He said that she altered his time card without his permission.  [13] In any event, when Ms. Howley returned to school, Ms. Reed returned to work at Ms. Howley's request and worked with Mr. Shack.[14]  Ms. Howley testified that she did not discipline Ms. Reed because after her investigation, she concluded that the incident between Ms. Reed and Mr. Shack was his fault.  She conceded, however, that her investigation consisted of talking with Ms. Reed, not Mr. Shack, because she trusted her, she was a loyal employee and never screamed at her. (Tr. 319)

According to her April 26 memo, when Ms. Howley returned to school from her conference, she contacted Mr. Sims Oakley, Resource Officer, upon hearing about this latest incident. She stated that The combination of allegations of hostility and inappropriate behavior toward students prompted the need for an investigation by Mr. Oakley. (Bd. Exhibit No. 8)  However, there was nothing in the record about any such contact with Mr. Oakley or that he conducted an investigation.

Despite initially stating that all of the items listed on her April 26 memo to Mr. Tate occurred in the month of April, on further questioning Ms. Howley acknowledged that the incidents listed were a combination of incidents before and after February 23.  They were not all new events.  For example, the incident reported by Ms. McCaskey (Bullet one) occurred in February (Tr. 292) and the conduct described in bullet two occurred in February (Tr.292). In addition, Ms. Howley acknowledged that Ms. Meriwether, who according to bullet two had witnessed Mr. Shack giving candy to fifth grade girls, had testified that this occurred in February. (Tr., 292)

The items reported in bullets three, four and five, which referred to incidents allegedly witnessed by Ms. McCaskey, Ms. Stamps-Johnson and Ms. Dinkins, and which were reported to Ms. Howley by them,  involved horse playing with fifth grade boys and girls,  border lined flirting with fifth grade girls, which Ms. Dinkins explained to Ms. Howley meant horseplay (Tr. 298; 301);  giving ice cream to fifth grade girls, and pretending to cut the hair of fifth graders with a pair of scissors in the cafeteria. [15] However, there was no documentation to confirm if or when these incidents occurred even though Ms. Howley's testified that if a problem becomes serious she wants to see it in writing with the staff member's name on it. In her words, Don't just come in and tell me things. (Tr. 266) 

Despite the absence of any clear proof, Ms. Howley placed the timing of the items reported in bullets three, four and five in April because Ms. McCaskey was on maternity leave for the month of February.  (Tr. 294)  However, the record revealed that Ms. McCaskey was in school at some point in February because she reported the phone call from the parent, who complained that Mr. Shack had given his daughter a $1, to Ms. Howley in February.  Moreover, although presumably Ms. McCaskey could have confirmed the dates of the other incidents she reported to Ms. Howley, the Board did not call Ms. McCaskey to testify.  Neither were Ms. Dinkins and Ms. Stamps-Johnson called as Board witnesses.  Nor did these staff members make written statements or was there evidence that Ms. Howley requested them to make statements. 

Bullet six refers to Ms. Monteiro witnessing Mr. Shack's  horse playing.  However, there was nothing in the record to show when Ms. Monteiro witnessed this behavior. She gave a written statement to Ms. Howley regarding the stopped up toilet, but that statement made no reference to her witnessing horse playing.  (Bd. Exhibit 3)

There was no testimony of what action, if any, Mr. Tate took in response to the April 26 memo from Ms. Howley or what, if anything, she did further in the process leading to the termination of Mr. Shack.  On May 13, however, Superintendent Harold W. Dodge notified the Board that he was recommending Mr. Shack's termination and listed thirteen facts showing that the termination is taken for one or more of the reasons listed in Ala. Code '36-26-102. (Board Exhibit No. 1)  There was no testimony describing the process, if any, leading to Mr. Dodge's decision to make the recommendation for Mr. Shack's termination.   His letter recommending termination to the Board merely listed the following facts:

1.              Mr. Shack's extremely inappropriate behavior toward female students;

2.            Mr. Shack refused to cooperate in assisting other custodians;

3.            On February 21 Mr. Shack displayed a blatant disrespect for his principal by refusing to perform duties;

4.            Mr. Shack demonstrated an inability to appropriately communicate with administration and staff members;

5.            Mr. Shack demonstrated inappropriate and volatile behavior toward his principal and other staff members;

6.            Mr. Shack demonstrated inappropriate and temperamental behavior in front of other students;

7.            On February 22 Mr. Shack engaged in a verbal altercation with the bookkeeper, Ms. Hannah;

8.            On November 3, [sic] Mr. Shack entered the Parent Organizer's office without knocking while she was engaged in a conference with a parent;

9.            Mr. Shack engaged in a conversation with the parent and refusing to leave as requested by Audrey Bunch;

10.       Mr. Shack refused to perform duties as requested by administration and/or staff members;

11.       On February 14 Mr. Shack disrupted classroom instruction by removing a student from the classroom without the permission of the teacher; communicating threatening language to other staff members;

12.             Mr. Shack communicated threatening language to other staff members;

13.       Mr. Shack disrupted class instruction by peaking through classroom windows and making faces at the students.

CONCLUSIONS OF LAW

This case exemplifies the tension between the significant but conflicting interests here, namely, the Alabama Legislature's intention to provide job protection rights to school employees under Alabama's Fair Dismissal Act (AFDA) and the responsibility of school administrators to create and maintain a learning environment that will ensure effective instruction and safe surroundings. The FDA guarantees to employees that they will not lose their jobs or be disciplined unless their school system can meet the burden of showing just or good cause for the discipline.  However, as Ms. Howley clearly stated in her testimony, her obligation to her students should not be compromised by permitting an employee to disrupt instruction because that's the number one reason for the school is to instruct students  . . .  (Tr. 211) 

When these two interests collide, as they appear to do in the instant matter, the Hearing Officer must determine which predominates.  Clearly, instruction cannot be compromised, but neither can an employee's rights under the FDA.  Therefore, the school administration's responsibility to its students and the public will be safeguarded so long as the school system is able to carry its burden to show that the termination was based on one of the statutory grounds, for plainly, conduct that interferes with instruction would be good cause for discipline. 

            The Statutory Grounds for Termination

In labor relations dispute litigation where, as in the present case, an employer's right to terminate an employee is limited by statute that enumerates specific grounds or "other good or just cause" for termination, the employer has a two-prong burden.  First, is its burden of producing evidence or other information sufficient to persuade the Hearing Officer that such grounds to terminate the employee were present.  To meet this burden, the employer must begin by producing persuasive evidence that the employee engaged in the conduct described as grounds for termination. 

The second component of its burden is to show that the aggregate of the evidence warranted the discipline imposed.  The decision on this aspect of the proof scheme depends on the seriousness of the offense.  For example, offenses such as stealing, striking a supervisor or other violent workplace behavior, or openly defiant egregious insubordination or where conduct is legally or morally wrong. Etc may justify summary dismissal.  Infractions of work rules, tardiness, careless workmanship, even insolence on the other hand may call for lesser penalties aimed at correction of those behaviors. 

Indeed, Ala. Code ' 36-26-104 (a) implicitly recognizes that not every instances of a failure to perform duties in a satisfactory manner, neglect of duty or insubordination will satisfy the good and just cause requirement of ' 36-26-102 and justify termination.  Thus, the Code authorizes Hearing Officers to determine which of a list of actions should be taken relative to the employee.  In addition to termination, that list includes suspension, with or without pay, reprimand, other discipline or no action against the employee. 

Here, the conduct that MCPS cited as the basis for the discipline is enumerated in the Superintendent's May 13, recommendation for termination. To sustain the termination, therefore, the evidence must be clear and convincing that Mr. Shack engaged in this conduct.  If the employer produces clear and convincing evidence that Mr. Shack, in fact, engaged in the conduct that MCPS cited as the basis for the discipline, the Board must complete its burden by justifying termination by showing (1)  that Mr. Shack knew or should reasonably been expected to know ahead of time that engaging in the behavior would likely result in his dismissal from employment, i.e., did MCPS give him forewarning of the possible consequences of his objectionable conduct; (2) that the discipline was administered following a fair and objective investigation of the facts that produced substantial and compelling evidence of Mr. Shack's conduct; (3) that a reasonable relationship existed between his  misconduct and the punishment imposed, that is, the punishment must be reasonably related to the seriousness of the offense and the employee's past work record; (4) that the punishment was reasonably related to insuring or maintaining orderly, efficient and safe operations of the school environs and (5) that the discipline was administered evenhandedly, in a consistent and nondiscriminatory manner; that is, that similarly situated employees have been treated similarly.

Did MCPS Satisfy its Burden of Producing Sufficient?
Evidence to Sustain Mr. Shack's Termination

However, as noted above under the heading THE ISSUE, there is another rule governing labor relations dispute litigation that is a counterpoint to the employer's right to discipline for cause.   It is a basic rule of employment litigation that once discipline for a given offense is imposed, another punishment should not be imposed for the same offense lest the employee be unfairly subjected to workplace double jeopardy.  The key to this doctrine is not the Constitution but rather fundamental fairness, as guaranteed by a good and just cause requirement, in this case the FDA.  Thus, when an employee has been suspended for an offense, the employer should not be permitted to impose further discipline on the employee by terminating him for the same offense.   

Here, Mr. Shack was suspended on February 23 at the direction of Mr. Bosarge.  The basis for the suspension was stated in Ms. Howley's February 23 memo to him. (Bd. Exhibit No. 6)  After a conference with Mr. Shack and Ms. Howley that followed the February 23 memo, during which Ms. Howley expressed her optimism that things could be worked out, he was reinstated without even a written reprimand being issued. In fact, according to Ms. Howley, it was the understanding of the parties that the meeting resolved all issues. (Tr. 286)  As noted, Mr. Bosarge did not testify.

The inquiry then is whether, as Ms. Howley testified, Mr. Shack continued his objectionable behavior for which he had been suspended and then reinstated.  If his untoward behavior continued, the tests for establishing good and just cause must be applied to determine whether the continued behavior gave MCPS such cause to terminate him. 

The most careful analysis of the record, however, does not reveal with certainty, with one possible exception, that the enumerated reasons in Superintendent Dodge's recommendation for termination, as well as those detailed in the Board's written closing brief, occurred following Mr. Shack's suspension and reinstatement in February.  For example, while there is uncontroversial evidence to support the allegation that Mr. Shack gave a female student a dollar for helping him with a chore and that he threw candy or bubble gum to students - both boys and girls - and that Ms. Howley warned him that People can misconstrue things,  (Tr. 194) these were behaviors and conduct that occurred prior to his suspension and conference with Mr. Bosarge in February.  There was no clear showing of a recurrence of this type of behavior after his suspension and conference with Mr. Bosarge.  So too, was the claim that he engaged in a verbal altercation with the bookkeeper, Ms. Hannah.  It took place on February 22, and there was no evidence of a recurrence.  In fact, they apologized to each other immediately upon Mr. Shack's return to work and Ms. Hannah conceded that the comment she made, which precipitated their dispute, was inappropriate. 

Likewise, would be the claim that he refused to cooperate in assisting other custodians - a dubious claim in any event in that it was based on the premise that Mr. Shack had a duty to take direction from fellow custodians who claimed their authority from Ms. Howley. 

The claim that on February 21, Mr. Shack displayed a blatant disrespect for his principal by refusing to perform duties was one of the complaints against him for which he was suspended in February.   The same is true for his alleged intrusion into the Parent Organizer's office on November 3, 2004, during which he allegedly engaged in a conversation with the parent and refused to leave as requested by Audrey Bunch, the claim that on February 14 he disrupted classroom instruction by removing a student from the classroom without the permission of the teacher, communicated threatening language to other staff members and disrupted class instruction by peaking through classroom windows and making faces at the students were all incidents or behaviors that predated his suspension and were or could have been dealt with by Mr. Bosarge in his February discipline conference with Mr. Shack.

Did the Aggregate of the Evidence Warrant Mr. Shack's Termination?

To determine whether the aggregate of the evidence of his post-suspension behavior warranted the termination necessitates applying the criteria for evaluating the seriousness of behaviors cited above.

The claims that he demonstrated an inability to appropriately communicate with administration and staff members, demonstrated inappropriate and volatile behavior toward his principal and other staff members and demonstrated inappropriate and temperamental behavior in front of other students and refused to perform duties as requested by administration and/or staff members are flawed by imprecision and vagueness, as is the claim that he communicated threatening language to other staff members.  Thus, it is not possible to determine whether these are fresh claims or a summary of the claims submitted to Mr. Bosarge by Ms. Howley in February.

The one exception referenced above, was the confrontation with Ms. Reed described in her testimony and in her written statement - Bd. Exhibit No. 5.  But even she conceded that the altercation stated over "something petty" (Tr. 100) and that she did not have any problems with Mr. Shack until she would ask him to do something and he felt like A . . . I'm not one to tell him what to do. (Tr.108)  

 Nonetheless, following his conference with Mr. Bosarge and return to work, Mr. Shack knew or should reasonably have known that any recurrence of objectionable behaviors might subject him to further discipline including termination.  However, while MCPS claims that the confrontation Mr. Shack had with Ms. Reed was evidence of such a recurrence, Ms. Howley's investigation could not be considered fair and objective. As explained above, she only spoke to Ms. Reed and credited her without talking to Mr. Shack because she considered Ms. Reed to be trustworthy.  Nor did MCPS offer any evidence that would disclose whether  Superintendent Dodge's May 13 decision  to recommend Mr. Shack's termination followed a fair and objective investigation of the facts by either Mr. Tate or the Superintendent that would have demonstrated a reasonable relationship between Mr. Shack's alleged  misconduct and the punishment imposed;  that is, whether the punishment was reasonably related to the seriousness of the offense and was imposed to insure the orderly, efficient and safe operations of the school environs, and was administered even-handedly, in a consistent and non-discriminatory manner. All that was shown was that in a letter to Mr. Tate dated April 26 Ms. Howley listed incidents that were cause for concern in regards to the behavior of Mr. Shack and recommended termination. The record discloses nothing further until the May 13 letter was hand delivered to the Board and Mr. Shack from the Superintendent giving notice that he was recommending Mr. Shack for termination for one or more of the causes listed.  

DECISION

Having heard the testimony and carefully reviewed the evidence and written briefs in support of the parties' respective positions on Mr. Shack's contest of his termination, and in light of the above Findings of Fact and Conclusions of Law, the Hearing Officer finds that MCPS failed to sustain the burden of proof necessary to support the termination. 

While Ms. Howley may have had good reasons to believe that Mr. Shack's behavior was disrupting her school, the record revealed that he had been counseled and disciplined for his behavior by Mr. Bosarge in February. The decision to terminate him appears to have been based mainly on the same alleged offenses for which he was previously counseled and suspended.  Mr. Bosarge did not testify, however, and so the record only discloses that Mr. Shack was allowed to return to work with the optimistic hope of his principal, and presumably Mr. Bosarge, that he would conduct himself as satisfactorily as he had done previously in his employment at the school.

Despite Ms. Howley's expectations after the February conference with Mr. Shack and Mr. Bosarge, though, she sensed, following Mr. Shack's return from suspension, that her overriding and all- important concern about maintaining a peaceful school environment was being eroded by Mr. Shack's continued misconduct.  However, the only unambiguous evidence to justify her concern that Mr. Shack's conduct may have regressed to that point was the testimony describing the confrontation between him and Ms. Reed that occurred in April.  But even the seriousness of that incident was mitigated by the circumstances of their relationship to each other casting doubt on whether it was sufficiently persuasive in itself to justify the termination particularly in view of her acknowledgment that she was not one to tell him what to do. 

Finally, the absence of testimony by either Mr. Tate and/or Mr. Dodge that might have explained the basis for their actions leads to further doubt as to the fairness of the decision to terminate Mr. Shack.

Nonetheless, Ms. Howley's concern about Mr. Shack's returning to her school lest he causes disruptions is a legitimate concern that cannot be overlooked or completely disregarded.  Under the circumstances, she must have the authority to take prompt and decisive action in the event that, upon reinstatement, he might engage in behavior that disrupts proper school decorum or disturbs the normal stability of the school.

Therefore, it is my Decision, pursuant to my statutory prerogative to impose other disciplinary action, that MCPS take the following action.  Mr. Shack shall be reinstated forthwith at Indian Spring Elementary School or at another MCPS school if an opening for a permanent custodian's position exists at such other school; provided, however, his nonprobationary status shall be suspended for the remainder of the 2005-2006 academic year during which he shall have the status of a probationary employee under the terms of Alabama Code '36-26-101.

I shall retain jurisdiction during Mr. Shack's probationary period to resolve any questions of compliance that may arise.

Dated: _____________________                                 _____________________________
                                                                                      Edward J. Gutman, Hearing Officer



[1]Unless otherwise noted, all events in this matter occurred in 2005.

[2]The evidence revealed another issue which will be discussed below; i.e. whether Mr. Shack had previously been disciplined for the same conduct relied upon by MCPS to justify his termination on good and just cause grounds. 

[3]He testified that the majority or half of the claims against him were untrue. (Tr. 390) 

[4]The teacher did not testify nor was her identity revealed.

[5]There had also been a report made to Ms. Howley that Mr. Shack was giving ice cream to students (Tr. 202).  He denied this claim, and testimony revealed and Ms. Howley confirmed, that another custodian, Rochelle Reed gave ice cream to students but was never reprimanded. (Tr. 111, 116, 257)

[6]In her testimony, Ms. Hannah acknowledged that the comment she made to Mr. Shack which led to the confrontation between them had been inappropriate. (Tr. 67- 77)

[7]Ms. Howley did not explain how Mr. Shack's behavior was affecting instruction.

[8]This was a reference to the incident earlier in February when Mr. Shack brought a student to the office and told Ms. Howley that he had seen the student spit on the wall. 

[9] Ms. Howley testified that a meeting was conducted with a Hearing Officer from M.C.E.A. but there was no testimony when, with whom or what connection this had with the issues in this proceeding. (Tr. 252)

[10]Both Ms. Whiting and Ms. McCaskey were still employed at the time of the hearing but neither was called to testify by MCPS.

[11]Ms. Dinkins was not called to testify. Thus, there was no evidence to show when she witnessed the flirting or what she saw that was flirting, nor did she document the flirting in a written statement. (Tr. 299)

[12]Ms, Howley was attending an educational conference in Baltimore.

[13]Ms. Howley testified that she the reason she believed Ms. Reed when she told her that the only times she gave instructions to Mr. Shack was when Ms. Howley had authorized her to do so was that Ms. Reed is a very honest person ... Very religious woman. (Tr. 259)  

[14]Ms. Reed testified that she would quit if he came back to work now. (Tr. 98)  

[15]Mr. Shack testified that the ice cream cooler was in Ms. Reed's hall and that she, not he gave ice cream to students.  He also denied that he ever pretended to cut fifth graders' hair with a scissors. (Tr. 378)

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