STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS J. MILLS, )

Superintendent of Schools, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2964

)

TERESA A. BANFIELD, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Abbey G. Hairston, Esquire

West Palm Beach, Florida

For Respondent: Mark A. Cullen, Esquire

Lake Worth, Florida

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, in Belle Glade, Palm Beach County, Florida, on December 7, 1987. A transcript of the proceeding was filed, and the parties have filed proposed findings of fact and Conclusions of Law. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

ISSUE

The issues to be decided are:

1. Whether Ms. Banfield should be terminated from her employment with the School Board of Palm Beach County effective July 22, 1987, for misconduct in office and gross insubordination based upon an alleged inability to work in a cooperative manner with her peers and supervisors after repeated counseling and warnings were given to her to adjust her attitude.

   
   

2. Whether if there is no basis for discharge, the evidence supports some lesser penalty.

   
   

3. Whether Ms. Banfield is entitled to back pay if she is not terminated.

   
   

4. Whether an award of attorney's fees is appropriate.

PROCEDURAL BACKGROUND

A petition for the dismissal of Ms. Banfield was filed with the Division of Administrative Hearings on July 13, 1987, by the Superintendent of Schools for Palm Beach County. The petition sought to dismiss Ms. Banfield from the non- instructional staff for misconduct and gross insubordination under Rule 6Gx50- 3.27(3)(d),(h), Florida Administrative Code.

At the hearing, petitioner's exhibits 1-14 were received in evidence.

Petitioner called as witnesses Ernest Thompson, Gwendolyn Johnson, Joy Gates, Kay Ventura, Kent Heitman, Shirley Floyd, and Eugenia Jones. Ms. Banfield testified in her own behalf and called as witnesses Gwendolyn Davis, Johnni Smith, Linda Sumerall, Cathy Hamilton, Teresa Young, Gloria Hager, Annie Thomas, and Betty Comis.

By prehearing stipulation filed November 2, 1987, the parties agree that the following facts are not in dispute:

FINDINGS OF FACT

1. Ms. Banfield is a non-instructional employee of the School Board of Palm Beach County. She was initially employed at Pahokee Jr.-Sr. High School as an Office Assistant II on an interim basis, effective September 21, 1981. She resigned from that position effected November 13, 1981.

   
   

2. Ms. Banfield was re-employed by the School Board at Pahokee Jr.-Sr. High School an a Media Clerk I, effective August 17, 1982. She was transferred to the position of School Office Assistant II, effective August 4, 1983, and has served in that position since that time.

   
   

3. Ms. Banfield received formal evaluations of her work performance on February 17, 1984; June 4, 1984; October 1, 1984; January 10, 1985; June 12, 1986; and June 16, 1987.

   
   

4. Ms. Banfield received memoranda from two principals at Pahokee Jr.-Sr. High School (Jack Redding and Eugenia Jones) regarding her work performance.

   She received these on September 17, 1984, January 24, 1986, and August 29, 1987.

   
   

5. On May 11, 1987, Ms. Banfield was involved in a discussion with a classroom teacher at Pahokee Jr.-Sr. High School, Kay Ventura. On June 19, 1987, Ms. Banfield received a notice of suspension with pay, recommendation for suspension without pay, and recommendation for termination of employment based upon the charge of misconduct in office and gross insubordination.

   
   

6. The School Board of Palm Beach County suspended Ms. Banfield without pay effective July 8, 1987, pending final action on the superintendent's recommendation for termination.

   
   

   The following Findings of Fact are based on evidence adduced at the hearing.

   
   

7. As an Office Assistant II, Ms. Banfield has been assigned to work as a receptionist and secretary in the guidance department of the school which is located in a trailer apart from the main school building.

   
   

8. Ms. Banfield is employed under an annual contract of employment which had been renewed yearly. The Superintendent of Schools recommended that Ms. Banfield receive an annual contract of employment for the 1987-88 school year.

   
   

9. Before the event which is the focus of this dismissal proceeding, Ms. Banfield had received prior notices that her work performance was inadequate due to the "nasty, harsh, abrupt" manner in which she dealt with persons she came in contact with (Petitioner's exhibit 4, dated September 17, 1984). Ms. Banfield was informed that "unless her performance was entirely satisfactory, her

   continued employment with the District School Board would be in jeopardy." (id.) On October 1, 1984, her employment evaluation contained the comment that

   
   

   I strongly recommend that you seek to improve the tone quality of your voice, however, improvement is noted. Further improvement is needed.

   (Plaintiff's exhibit 5)

   
   

   Ms. Banfield was recognized as "a very hard worker," however, (id.) in spite of these criticisms, Ms. Banfield's contract was renewed. By January 1985, the employment evaluation noted that the tone quality of her voice had improved tremendously (Petitioner's exhibit 7).

   
   

10. By January 1986, however, the new principal of Pahokee Jr.-Sr. High School, Eugenia Jones, wrote Ms. Banfield about the unpleasant attitude and negative tone of voice Ms. Banfield used in the guidance office and on the telephone. Ms. Jones made it clear that such behavior to parents and visitors to the guidance office was unacceptable. (Petitioner's exhibit 8).

    
    

    The June 1986 employment evaluation of Ms. Banfield pointed out that when informed of deficiencies, Ms. Banfield was pleasant but soon reverted back to the same negative behaviors. It was also noted that Ms. Banfield displayed a negative attitude when given additional assignments, and needed to improve her tone of voice. She was also recognized for knowing her job and keeping accurate records. (Petitioner's exhibit 9).

    
    

11. Near the opening of the 1986-1987 school year, Ms. Banfield was given a written reprimand by the school principal as the result of an incident which involved the assistant principal, Mr. Thompson. A parent with a child was at the school office trying to find out where to register. The school secretary asked Ms. Banfield where registration was taking place and Ms. Banfield responded, "In our [the guidance) office" and walked away. The assistant principal saw this, and called Ms. Banfield back to escort the parent to the guidance office. After she had been called the first time she did not respond, so the assistant principal called her again. She told the assistant principal in an arrogant voice, "I said in my office, good God." The assistant principal then told her that he only had called her back to escort the parent to the guidance office. Ms. Banfield replied, "Then send her on." Ms. Banfield later was informed by the assistant principal that a display of an attitude problem in front of parents would not be tolerated, and he made a memorandum of the incident which he sent to Ms. Jones, the principal. (Petitioner's exhibit 10). This resulted in a follow-up reprimand from Ms. Jones to Ms. Banfield pointing out that Ms. Banfield's working relationships, unpleasant attitude, and telephone manners had been discussed with her on numerous occasions and that it was expected that Ms. Banfield would provide a warm welcome to all parents and others visiting the school. (Petitioner's exhibits 11). She was also informed that further incidents would result in proceedings to terminate her employment.

    
    

12. Ms. Banfield acknowledges she had received warnings from both her former principal (Mr. Redding) and current principal (Ms. Jones) about her attitude.

    
    

13. A classroom teacher assigned to teach educable mentally handicapped students entered the guidance office to leave a note for one of the guidance counselors, Joy Gates, on May 11, 1987. At that time, Ms. Banfield's immediate supervisor, Gwendolyn Johnson, the guidance coordinator for the school, was in

    her own office which is in the trailer where Ms. Banfield serves as secretary and receptionist. Ms. Johnson was meeting with a classroom teacher, Kent Heitman. The door to Ms. Johnson's office was open. Also present in the office suite was a student assistant, Teresa Young. Ms. Ventura asked Ms. Banfield whether Ms. Banfield had an envelope or piece or paper in which she could cover the note she wished to leave for Ms. Gates. The note had to do with a student and Ms. Ventura wished to enclose it to keep the matter confidential. Ms.

    Banfield told Ms. Ventura she did not have an envelope or any paper to give her. Ms. Banfield was standing at the copy machine at the time. She was responsible for the operation of the copier.

    
    

14. Ms. Ventura approached the copy machine and removed a piece of paper from the tray which was not being used at that moment by Ms. Banfield for copying to enclose the note. Ms. Banfield became very angry with Ms. Ventura and began shouting at her. Ms. Johnson and Mr. Heitman heard the shouting and came out of Ms. Johnson's office. Ms. Ventura then went into Ms. Gates' office and stated that she was not going to put up with Ms. Banfield's conduct. Ms. Ventura closed the door to Ms. Gates' office and respondent continued to shout at Ms. Ventura through that closed door. Ms. Ventura had closed herself in Ms. Gates' office because she was afraid of the respondent.

    
    

15. Ms. Gates then entered the trailer and found Ms. Ventura in her office. While Ms. Gates discussed the incident with Ms. Ventura, they could hear Ms. Banfield outside the door talking loudly about what Ms. Banfield was going to do as a result of the incident. It is not clear, however, that there was anyone to whom Ms. Banfield was speaking. Ms. Banfield was obviously extremely upset by Ms. Ventura's self-help in obtaining a piece of paper from the copy machine at which Ms. Banfield had been standing, but which Ms. Banfield had not been using at the time. Ms. Ventura removed the sheet of paper from the feed mechanism. Ms. Banfield's expression of anger to Ms. Ventura, and her continued tirade after Ms. Gates returned to the office and was discussing the matter with Ms. Ventura in Ms. Gates' office, was wholly out of proportion to whatever offense Ms. Banfield believed she had suffered from Ms. Ventura.

    
    

16. Ms. Banfield reported the incident to the principal, Eugenia Jones, at the suggestion of Gwen Johnson. When Ms. Banfield discussed the incident with Ms. Jones, she was still speaking loudly, shaking, and enraged. Ms. Jones thereafter requested that the assistant superintendent for personnel relations investigate the matter and recommended that disciplinary action be taken against Ms. Banfield.

    
    

17. After the incident with Ms. Ventura, Ms. Gates discussed with Ms. Banfield concerns about Ms. Banfield's behavior. For example, on one occasion Ms. Gates was looking for a form usually kept on a file next to Ms. Banfield's desk. While standing along side Ms. Banfield's desk looking for the form, Ms. Banfield asked Ms. Gates what her problem was and made it clear that she did not want Ms. Gates looking for forms on Ms. Banfield's desk. The forms Ms. Gates was looking for are ones which Ms. Gates uses in the performance of her duties. Ms. Gates had also been told by school personnel that they did not like to come to the guidance office because of Ms. Banfield's behavior.

    
    

18. On June 16, 1987, Ms. Jones gave Ms. Banfield a written performance evaluation which found that her conduct was unsatisfactory in dealing with fellow staff members, and on June 19, 1987, informed Ms. Banfield that charges of misconduct in office and gross insubordination were being brought due to Ms. Banfield's deficient record of performance in dealing with others. Ms. Banfield

    was suspended without pay from her position effective July 8, 1987, and this proceeding ensued.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over these proceedings. Section 120.57(1), Florida Statutes. Under the rules of the School Board of Palm Beach County an employee may be suspended or terminated for gross insubordination, which is defined as "a willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority", Rule 6Gx50-3.27(3)(d) Florida Administrative Code, or for misconduct, which is defined as "conduct that is serious enough to impair the individual's effectiveness in the school system", Rule 6Gx50-3.27(3)(h), Florida Administrative Code.

    
    

20. Ms. Banfield has been warned pointedly on several occasions over a four-year period against behaving in a hostile manner to staff, parents, and students. Despite these warnings, respondent continued to conduct herself in a hostile and offensive manner. The behavior was called to her attention but she engaged in it repeatedly so that it is appropriate to characterize her failure to conduct herself civilly as willful disregard of reasonable and proper orders given to her. Ms. Banfield is also guilty of misconduct in that her rude and offensive conduct has made her ineffective as a school office assistant II where she is required to have daily contact with a number of employees, students, and others on a daily base.

RECOMMENDATION

It is recommended that a final order be entered terminating the employment of Ms. Banfield as an annual contract employee with the School Board of Palm Beach County for misconduct and gross insubordination.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1988.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1060

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2964

The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 129.59(2), Florida Statutes (1985).

Rulings on Petitioner's proposed findings of fact are as follows:

1. Covered in Conclusions of Law.

2. Covered in finding of fact 1.

3. Covered in finding of fact 2.

4. Generally covered in finding of fact 3, otherwise rejected as cumulative.

5. Covered in finding of fact 3, otherwise rejected as cumulative.

6. Generally covered in finding of fact 3.

7. Rejected as unnecessary.

8. Covered in finding of fact 4.

9. Covered in finding of fact 4.

10. Generally covered in the final sentence of finding of fact 11.

11. Covered in finding of fact 6. 12-15. Covered in finding of fact 5. 16-18. Covered in finding of fact 7. 19-20. Covered in finding of fact 8.

21-22. Covered in finding of fact 9 and 10.

1. Covered in finding of fact 11.

2. Covered in finding of fact 12.

3. Covered in finding of fact 12.

26-29. Rejected as argument rather than a finding of fact. The Hearing Officer agrees that Ms. Young's version of the incident is not the more credible, and has accepted the version explained in the testimony of Gwendolyn Johnson, Kent Heitman, Joy Gates, and Kay Ventura.

Rulings on Respondent's proposed finding of fact.

1. Covered in finding of fact 5.

2. Rejected as unnecessary and irrelevant.

3. Covered in finding of fact 5.

4. Covered in finding of fact 5.

5. Rejected because of the incident recounted by Assistant Principal Thompson did occur as explained by Mr. Thompson in his testimony and his contemporaneous memoranda, and does

   constitute a behavior problem of Ms. Banfield.

6. Covered in finding of fact 5.

7. Covered in finding of fact 5.

8. Rejected, the version of the event which is accepted is found in finding of fact 5.

9. Covered in finding of fact 7.

10. Covered in finding of fact 7.

11. Rejected because whether Ms. Ventura may be aloof or unfriendly has nothing to do with the extreme reaction of Ms. Banfield, and aloofness would be an inadequate provocation for the reaction exhibited by Ms. Banfield.

12. Rejected as unnecessary.

13. Covered in finding of fact 7.

14. Rejected as unnecessary.

15. Covered in finding of fact 7.

16. Covered in finding of fact 7.

17-18. Rejected because the Hearing Officer finds that at the time Ms. Ventura removed the paper from the feed tray of the copy machine, Ms. Banfield was not operating the copy machine.

1. Generally covered in findings of fact 7.

2. Covered in finding of fact 7 but I do not find that Ms. Ventura slammed the door to Ms. Gates' office.

3. Rejected because the Hearing Officer does not find that Ms. Ventura emerged from Ms. Gates' office and yelled at Ms. Banfield.

4. Rejected because the Hearing Officer cannot accept the version of the incident portrayed in the testimony of Ms. Young. Without ascribing any motivation to Ms. Young, the Hearing Officer find that the more credible testimony was given by other witnesses.

5. Generally covered in finding of fact 10.

6. Covered in finding of fact 10.

7. Covered in finding of fact 2.

8. Covered in the prehearing stipulation.

9. Covered in finding of fact 3.

10. That Ms. Banfield was recognized for performing her job functions is covered in findings of fact 3 and 4.

COPIES FURNISHED:

Abbey G. Hairston, Esquire Palm Beach County School Board Post Office Box 24690

West Palm Beach, Florida 33416-4690

Mark A. Cullen, Esquire 1030 Lake Avenue

Lake Worth, Florida 33460

Thomas J. Mills Superintendent of Schools Post Office Box 24690

West Palm Beach, Florida 33416-4690

Docket for Case No: 87-002964

Orders for Case No: 87-002964