Marion County School Bd. v. Clark, MM-326

• Citation: 378 So.2d 831
• Decision Date: 12 December 1979
• Docket Number: No. MM-326,MM-326
• Parties: MARION COUNTY SCHOOL BOARD, Appellant, v. Ethel CLARK, and Unemployment Appeals Commission, Appellees.
• Court: Florida District Court of Appeals

Page 831

378 So.2d 831

MARION COUNTY SCHOOL BOARD, Appellant, v. Ethel CLARK, and Unemployment Appeals Commission, Appellees.

No. MM-326.

District Court of Appeal of Florida, First District.

Dec. 12, 1979.

Rehearing Denied Jan. 25, 1980.

Gary C. Simons of Savage, Krim, Simons & Fuller, Ocala, for appellant.

James R. Parks, Dana C. Baird, Tallahassee, for appellees.

PER CURIAM.

Appellee Ethel Clark was discharged by appellant School Board based upon a finding that she violated certain of the school's policies concerning corporal punishment of a pupil. That decision is presently on appeal before another tribunal, the State Board of Education. After her dismissal, Clark applied for unemployment compensation benefits. A claims examiner denied her benefits on the ground that she had been discharged from her work due to misconduct, and was thus disqualified from receiving benefits under Section 443.06(1), Florida Statutes. Clark appealed, and the appeals referee reversed the decision of the claims examiner and ordered that benefits be paid. The appeals referee found that it had not been shown by clear and positive proof that Clark's discharge was for "misconduct connected with her work". The order of the appeals referee was affirmed by the Unemployment Appeals Commission. We affirm the Commission.

Section 443.06(1), Florida Statutes, provides that an individual shall be disqualified for benefits if he has been discharged by his employing unit for "misconduct connected with his work". Under the statute, the question of whether the employee has been discharged for misconduct connected with his work, is a matter to be determined by the division.

Section 443.06(9), Florida Statutes, defines "misconduct" for purposes of the above statutory provision, to include, but not be limited to, the following:

"(a) Conduct evincing such willful or wanton disregard of an employers' interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or

"(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or even design, or to show an intentional and substantial disregard of the employers' interests or of the employee's duties and obligations to his employer."

The inquiry before the appeals referee was, consistent with the above statutes, whether Clark's discharge was for misconduct connected with her work. A hearing was initially held in St. Petersburg, at which time Clark appeared and testified. There were no witnesses in behalf of the School Board. After due notice to all parties, in order to allow the School Board an opportunity to present evidence, a further hearing was held at Ocala. The School Board's personnel specialist attended this hearing, but this witness had no personal knowledge of the incident giving rise to Clark's dismissal, nor any personal knowledge of the proceedings that took place before the School Board. The evidence presented in behalf of the School Board at the Ocala hearing was limited to various items of correspondence between the parties, and a copy of the School Board's order of dismissal. During her testimony appellee Clark testified to the facts surrounding the incident involving her alleged improper disciplinary action with respect to the student, and in addition, gave her version of what occurred at the School Board hearing where the student and other witnesses testified.

Based upon the testimony and record presented to him, the referee made his findings and decision. He found that on February 6, 1978, an 11 or 12 year old boy student with whom claimant (Clark) had had previous disciplinary problems was disrupting her class, roaming about and disturbing other students. She had previously instructed him to rid himself of gum that he has chewing, but he had not done so. Observing the boy at the rear of her class near a wastebasket, she went to him and placing her hands upon his shoulder in a friendly manner, asked him to get rid of his gum, whereupon, he bent down to the wastebasket and then stood up rapidly and unexpectedly, colliding with the claimant. The boy then fell to the floor, writhing about and screaming unnecessarily. He went to his desk when told to by the claimant, and the claimant then told him that she would have to again refer him to the assistant principal for discipline, whereupon, he gathered his belongings and left the classroom saying that he was going to see the principal. Thereafter, Clark was called to the principal's office and was accused of striking the student. Even though she explained what had occurred, she was suspended from her classroom duties. Further, the referee found, at the hearing before the School Board conflicting testimony was obtained from the student involved, and other students in the classroom indicating that he had not been struck by the claimant, but that he had made his accusation against her because he resented being told to get rid of his gum. He also found that the employer School Board concluded that Clark had used excessive physical force on the student, in violation of its rules and regulations and accordingly, suspended her from work without pay, in effect, discharging her.

Based upon the foregoing factual findings, the referee determined that Clark was not discharged for misconduct connected with her work, within the meaning of the Florida Unemployment Compensation Law, and in his order, under "reasons for decision", stated:

"It was shown in this case that the claimant was discharged from her employment being suspended from work without pay, upon a finding by the employer based upon conflicting testimony that the claimant had used excessive physical force on a student in her classroom, in violation of the employer's rules and regulations. The employer has produced no substantial evidence before this tribunal to establish that its findings were valid, and the claimant has categorically denied their validity. It has not been shown in evidence that the claimant acted in violation or disregard of appropriate standards of behavior, which the employer has the right to expect its employees, or that her conduct showed any intentional or substantial disregard of the employer's interests, or of her duties and obligations to the employer as an employee, nor has it otherwise been shown that her discharge was for 'misconduct connected with work' within the meaning of the law. The degree of clear and positive proof necessary to substantiate an allegation of misconduct is lacking in this case." (order of appeals referee)

We will dispose of a large portion of appellant's argument before this court by the observation that its recitation of the "facts" concerning the alleged violation of the School Board's policies and rules are derived from the "facts" as found by the School Board in its hearing. The appeals referee was not bound by any findings or conclusions reached by the School Board based upon its view of the evidence, for the simple reason that in the unemployment compensation proceeding the finding and conclusions of the School Board are not deemed to be those of an independent neutral tribunal, but are actually only those of an adversary party to the school disciplinary proceeding. There is no basis upon which the findings and conclusions of the School Board can be given any greater weight than the ex parte findings and conclusions of any other employer. Therefore, the School Board's attempt to in effect reargue the merits of its own decision resulting in suspension of the teacher is inappropriate in this proceeding. However much we might be inclined to decide the dispute between the School Board and appellee Clark in the same manner as did the Board, we are not at liberty to make such a judgment, nor to allow the Board's insistence upon its correctness to control our decision in the present controversy. We are not here reviewing the School Board's decision, but the decision of the Unemployment Appeals Commission.

The mere fact that Clark's testimony before the appeals referee does not coincide with the findings of fact made by the School Board at its hearing affords no basis for her testimony to be rejected by the referee. She was a participant in the incident in question, was entitled to give her first hand account of that episode, and in addition, she was entitled to give her version of the proceedings that led to her dismissal. The School Board's order was not "evidence" of the truthfulness or accuracy of its findings, and was not required to be so considered by the referee, although it does appear from the record that a copy of this order was received and filed as an exhibit in behalf of the employer. It is noted that in the School Board's order no finding is made as to whether the contact with the student's face was accidental or deliberate. The referee, basing his finding upon the sworn testimony given in the proceeding before him by Clark, found that this unfortunate collision was the result of inadvertence. We conclude that this finding was supported by competent substantial evidence.

The contention by appellant that the appeals referee should be compelled, under Rule 8B-5.11(3), Rules of the Department of Commerce, Florida Administrative Code, to obtain additional evidence upon which to base his decision, is without merit. The employer was given adequate notice of both hearings, and was furnished with detailed instructions specifically advising the Board of the necessity of having witnesses present to testify at...