STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACKSON COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4625

)

DOROTHY GOLDEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Diane Cleavinger, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 19, 1991, at Marianna, Florida.

APPEARANCES

For Petitioner: H. Matthew Fuqua, Esquire

Post Office Box 854 Marianna, Florida 32446

For Respondent: Thomas W. Brooks, Esquire

2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether Respondent's contract of employment as a cafeteria worker should be terminated.

PRELIMINARY STATEMENT

This action was brought by the Jackson County School Board pursuant to Section 120.57, Florida Statutes. The School Board seeks to terminate the employment of Dorothy Golden, one of it's employees at the Cottondale High School lunch room.

At the hearing, Petitioner called three witnesses and introduced one exhibit into evidence. Respondent testified in her own behalf and called four additional witnesses. Respondent also offered one exhibit into evidence.

Petitioner and Respondent filed Proposed Recommended Orders on December 12, 1991, and December 23, 1991, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Dorothy Golden was employed as a lunchroom worker at Cottondale High School. She had been employed as a lunchroom worker since 1984. Ms. Golden's contract of employment was for one year and expired in the latter part of April, 1991. The contract was not renewed for the 1991-92 school year.

   
   

2. During the 1990-91 school year, Dorothy Golden's immediate supervisor was Dorothy Barnes. Dorothy Barnes became the Cafeteria Manager at Cottondale High School after the retirement of Lela V. Gardner in approximately 1988. Although Ms. Golden inquired about assuming the manager's position at the County office, she never submitted an application because she decided she did not want the responsibility of the job. Ms. Golden did not resent the fact that Dorothy Barnes was hired as the Cafeteria Manager at the high school.

   
   

3. Dorothy Barnes was supervised by the principal, Henry Ezell and the food service director, Ralph Harrison. Both Ms. Barnes' supervisors thought highly of Ms. Barnes because she had turned the cafeteria into a paying enterprise for the school.

   
   

4. Over time a personality conflict gradually developed between Ms. Golden and Ms. Barnes because of Ms. Barnes' dictatorial style of management. In fact, Ms. Barnes could be so overbearing that at least two lunchroom employees who worked with Ms. Barnes testified that they would resign their jobs rather than work under her supervision again. 1/ Over the years Ms. Golden and Ms. Barnes had several minor conflicts. These conflicts basically stemmed from the personality conflict between the two women and Ms. Barnes' perception that Ms. Golden was unwilling to perform the duties Ms. Barnes assigned to her and/or that Ms. Golden was not prompt in the performance of such assigned tasks. Ms. Golden tried her best to get along with Dorothy Barnes. Ms. Golden felt that she could never do enough to satisfy Ms. Barnes. Apparently, until March, 1990, none of the alleged problems between Ms. Golden and Ms. Barnes were sufficient to justify a downgraded evaluation in any particular category or a failure to recommend her for reemployment for the following year. In fact, for each of the school years 1984-85 through 1989-90, Ms. Golden received satisfactory evaluations and had her annual contract of employment renewed.

   
   

5. Given these facts and the supportive testimony of Ms. Golden's co- workers, the School Board has failed to demonstrate any cause for terminating Ms. Golden which could be attributed to the period of time prior to March 28, 1991.

   
   

6. On March 28, 1991, Ms. Golden was sick with a temperature. Even though she was ill, Ms. Golden went into work with the intention of going to see the doctor during the day. She informed Ms. Barnes that she was sick and was going to see the doctor. However, the doctor could not see Ms. Golden on March 28. Ms. Golden therefore continued to work throughout the day.

   
   

7. Near the end of the March 28 workday, Ms. Barnes instructed Ms. Golden to grind five pounds of cheddar cheese and five pounds of white cheese. The cheese was needed for the next day's meal. Because she felt so bad and had time the next day to grind the cheese, Ms. Golden asked Ms. Barnes if she could wait until the next day to grind the cheese. When Ms. Barnes did not tell her not to, she assumed she had permission to wait until the next day.

   
   

8. The next day, March 29, 1991, a Friday, Ms. Golden attempted to grind the cheese. Ms. Barnes had revised her instruction to require that Ms. Golden

   grind 45 pounds of cheese even though only 10 pounds were needed for that day's meal. Clearly, the remaining 35 pounds of cheese would have to be stored in some fashion. The usual practice was to store cheese in bulk in one large freezer bag. The practice did not include using several small used bread bags in lieu of one large freezer bag. Ms. Golden attributed the practice of using one large freezer bag to prior instructions from the health inspectors.

   
   

9. The cheddar cheese ground properly. However, Ms. Golden had difficulty grinding the white cheese because it was not frozen solid and gummed up in the grinder. Ms. Rouhlac, a co-worker of Ms. Golden, observed Ms. Golden's difficulties in grinding the white cheese and told her to get Ms. Barnes to help her. Ms. Golden said that she would rather clean the machine and try it one more time before seeking assistance from Ms. Barnes. The white cheese continued to gum up the grinder.

   
   

10. In order to come up with enough cheese for that day's meal, Ms. Golden used some other cheese which was already shredded along with the amount that she had ground. Ms. Golden placed the remaining cheese in a large bag in the refrigerator to return to later.

    
    

11. Ms. Golden continued to perform other tasks for the remainder of the day until Ms. Barnes requested her to place the cheese in smaller bread bags. Ms. Barnes' request was made ten minutes before quitting time. Ms. Golden searched for smaller bags to put the cheese in but could not find any.

    
    

12. Ms. Golden asked Ms. Rouhlac about bags in her area. Ms. Rouhlac looked for some small bags but could not find any. Consequently, Ms. Golden placed the cheese back in the refrigerator until she could get some bags. Ms. Golden suspected that Ms. Barnes was responsible for the bags disappearing based on Ms. Barnes' previous practice of playing little tricks on employees by hiding things.

    
    

13. The search for the small bags took up the remainder of the work day. Ms. Golden was not allowed to stay after normal working hours and she left for the weekend.

    
    

14. On Monday, April 1, 1991, Ms. Golden was washing lettuce in prepartion for making a green salad. Ms. Golden was using one half of a double sink to wash the lettuce. The other half of the sink had dirty utensils soaking in it. Ms. Golden had previously been instructed that the side of the sink with the utensils in it was for the cook and not to use that side of the sink. Ms. Barnes told Ms. Golden to wash the sink. Ms. Barnes intended the word "sink" to refer to both sides of the double sink being used by Ms. Golden. Ms. Golden understood the word "sink" to mean one side of the double sink. She washed the side of the sink she was working in. A short time later, Ms. Barnes again told Ms. Golden to wash the sink. Ms. Golden told her that she had already washed her sink. After a brief discussion on this issue between the two women and Ms. Barnes made her intent clear, Ms. Golden washed both sides of the sink in accordance with Ms. Barnes' instructions.

    
    

15. Later that evening, Mrs. Golden attended a meeting of food service workers at which there was a discussion about how to get along with someone at work who was difficult to deal with. The advice given was to simply "turn the other cheek" and be silent so as not to exacerbate the problem. Mrs. Golden decided to take this approach with Mrs. Barnes in the hope that it would avoid further instances of Mrs. Barnes "jumping down her throat" for no apparent reason.

16. On Tuesday, April 2, 1991, Ms. Golden, following the advice she had received the night before, did not reply verbally to Ms. Barnes when she was greeted the next morning. She simply went about her work in silence, avoiding Ms. Barnes where possible to avoid a controversy. During this time, Ms. Barnes instructed Ms. Golden to refill the milk shake machine. Having performed this task many times before, Ms. Golden knew exactly what to do and simply verified which day of the week it was to determine which flavor of milk shake mix to put in the machine. To avoid conflict with Ms. Barnes, Ms. Golden directed these questions to her fellow employees. Ms. Barnes, angry over her perceived rebuke when she greeted Ms. Golden, chastised Ms. Golden for her inquiry. The evidence indicates that Ms. Barnes apparently misheard some of Ms. Golden's inquiry. 2/

    
    

17. On Wednesday, April 3, 1991, Ms. Golden came to work and began preparing a salad. Ms. Barnes came in and angrily slammed the cheese from the cooler down in front of her and shouted "Stop what you are doing right now and bag this cheese." Ms. Golden had inadvertently forgotten about the cheese in the refrigerator. She said she would bag the cheese if there were some small bags available. When she went to look for bags, there were plenty of small bags in the place where such bags are normally kept, but which was empty the previous Friday. When Ms Golden discovered the return of the small bags she said to the other employees present "These bags must have walked back."

    
    

18. Following the discovery of the small bags and within a few seconds of Ms. Barnes slamming down the cheese, Ms. Christmas, a co-worker of Ms. Golden, came over and helped Ms. Golden bag the cheese in small bags. During the bagging of the cheese a shouting match erupted between Ms. Golden and Ms. Barnes. When they were finished bagging the cheese, Ms. Golden went to Ms. Barnes' office to ask her whether she wanted the cheese in the cooler or in the freezer. The shouting match continued. Ms. Barnes was on the phone talking to someone whom Mrs. Golden assumed was Ralph Harrison because Mrs. Barnes was always threatening to call Ralph Harrison out to the school as a means of intimidating Ms. Golden. Later, Ms. Golden realized from comments made by Ms. Barnes that it was the Principal, Henry Ezell, to whom she was talking.

    
    

19. During the conversation, Ms. Golden asked Ms. Barnes to permit her to tell her side of the story when she was through. Ms. Barnes became very angry and stated that "Here she is again telling me what to do," and threw the phone down, bouncing it off the floor.

    
    

20. Later, both Ms. Barnes and Ms. Golden met separately with Mr. Ezell and Mr. Harrison.

    
    

21. During Ms. Barnes' meeting, Ms. Barnes stated essentially that she had had enough of Ms. Golden and that something must be done about Ms. Golden or she would not continue to work in the cafeteria.

    
    

22. During Ms. Golden's meeting, Ms. Golden answered the questions asked of her. When she was asked whether she would comply with Ms. Barnes' instructions Ms. Golden stated that she was doing everything she could to comply with Mrs. Barnes' directives. She told them that she felt that nothing she could do seemed to satisfy Ms. Barnes, but that she would continue to try and get along with Mrs. Barnes and to do her job as she had been. Mr. Ezell and Mr. Harrison interpreted Ms. Golden's response to mean that she did not believe there was a problem between her and Ms. Barnes and that she would not follow Ms. Barnes' directives. Ms. Golden meant just the opposite by her statements.

    Based on the above interpretation and to satisfy Ms. Barnes, the entire blame

    for the perceived problems Ms. Barnes was having with Ms. Golden was placed on Ms. Golden. Ms. Golden was told, by Mr. Harrison, that either the manager had to go or she had to go. Later, Ms. Golden was informed that she was suspended with pay pending a recommendation of dismissal. Written documentation to that effect followed.

    
    

23. The evidence in this case, demonstrated that Ms. Barnes and Ms. Golden were not very good at communicating with each other. The difficulty in communication resulted not so much from disliking each other as from an imbedded inability in each women's personality and social skills to relate their meaning to each other. Ms. Barnes' failure was her overquick perception that she was not being obeyed, lack of pateince with Ms. Golden because of her perceptions about her and her lack of flexibility in manner of performance for a given task. Ms. Golden's failure was that she was somewhat slow in understanding and lacked flexibility in performing her functions because of her slowness. The evidence relating to the specific incidents outlined above clearly demonstrates that there was no failure on the part of Ms. Golden to perform her functions in the cafeteria. In each instance, there was never a refusal to comply with Ms. Barnes' directives but simply a failure to understand the directive or a disagreement about what was necessary to accomplish the task. All tasks were eventually performed once a meeting of the minds was achieved. None of the incidents outlined above warrant the early termination of Ms. Golden since she essentialy successfully and satisfactorily performed her job as a lunchroom worker during the time period from March 28, 1991-April 3, 1991.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

25. The evidence did not disclose any rules or policies governing the employment of non-instructional employees. Section 231.36, Florida Statutes, relates only to instructional employees. 3/ Specific grounds for dismissal or discipline of non-instructional employees is simply not addressed in the Florida Statutes. Section 230.33, Florida Statutes does grant the superintendant the authority to suspend school employees until the next regular or special meeting of the School Board, when authorized, serve notice on a suspended employee and recommend employees for dismissal to the School Board. Only the School Board may suspend without pay or dismiss an employee from employment. See School Board of Bay County v. Culbert, DOAH Case # 87-5501. Given these general provisions and the lack of any Board policy or rules, the issue in this case is governed by the terms of Ms. Golden's contract of employment and the common law relating to dismissal of employees.

    
    

26. In this case, Dorothy Golden was employed under a contract for a definite duration. An employee retained under a contract for a definite term can only be discharged during the term of that contract for cause. Bacon v. Carr 139 So.2d 166 (Fla. 2d DCA 1962); Video Electronics, Inc. v. Tedder, 470 So.2d 4 (Fla. 1st DCA (1985); Maines v. Davis, 491 So.2d 1233 (Fla. 1st DCA 1986); and Raytheon Subsidiary Support Co. v. Crouch, 548 So.2d 781 (Fla. 4th DCA 1989).

    
    

27. In order to justify the discharge of an employee engaged for a definite term, the employer must show that the employee breached an expressed or implied provision of the employment contract and that the breach was sufficiently substantial to justify discharging the employee. Hairman C.

    Gundersheimer, 177 So. 199 (Fla. 1937); and Jimarye, Inc. v. Pipkin, 181 So.2d 669 (Fla. 1st DCA 1966). Such job performance must be based on the contract and where the employer, as in this case, does not expressly reserve the right to determine whether an employee's job performance is satisfactory, evaluation of the employee's performance is based on a reasonable person standard. Video Electronics, supra; and Jimarye, Inc. c. Pipkin, 181 So. 2d 669 (Fla. 1st DCA 1966). On the other hand, the employer can waive its right to discharge an employee for particular conduct or breaches by condoning the conduct. 2 Fla Jur. 2d Agency & Employment Section 132.

    
    

28. Since Ms. Golden's contract does not contain any relevant provisions relating to performance the issue in this case is whether Ms. Golden breached her implied duty to follow and obey all the reasonable rules, orders and instructions of the employer as alleged in the Administrative Complaint. Santa Rosa Island Authority v. F. Rust Smith & Sons, Inc. 303 F2d 576 (5th Cir. 1962). Willful disobediance of such employer rules, orders or instructions constitute just cause for an employee's termination. Hairman, supra

    
    

29. In this case, the Petitioner has not proven that the Respondent was guilty of gross insubordination or any insubordination because the evidence does not support a conclusion that the Respondent was guilty of materially failing to perform any specific duty requested of her. Likewise, the Petitioner has not established that the Respondent was guilty of neglecting her duty because the evidence does not establish that Respondent neglected to perform any acts which materially affected her contractual obligations to obey the directives of Ms. Barnes. The evidence demonstrated that Ms. Barnes was either not clear in her instructions to Ms. Golden or that Ms. Golden did not understand Ms. Barnes' instructions and would proceed with her work utilizing past practices in the cafeteria. Additionally, Ms. Barnes' instructions sometimes conflicted with past instructions given by Ms. Barnes or earlier authorities such as health officials. Ms. Barnes would over react to Ms. Golden's perceived failure to follow her instructions and would escalate the situation because she believed she was being thwarted. Ms. Golden did not maintain such an intent, but was simply slow in understanding Ms. Barnes and not particularly flexible in the performance of her duties. None of the incidents described during the hearing amounted to a breach of Ms. Golden's employment contract. Nor do these incidents constitute a breach of that contract which would be sufficient to justify the early termination of that contract.

    
    

30. In this case, reinstatement would not be an appropriate remedy since the School Board elected not to renew Ms. Golden's annual contract. The decision not to renew the contract may be for any reason and does not require a showing of cause for the nonrenewal. Moreover, there was insufficient evidence to demonstrate that the Board had any policy regarding or restricting its decision over continuing a non-instructional employee's contract once the term of the contract had expired. However, since Ms. Golden was terminated prior to the end of her annual contract without just cause she is entitled to backpay for the time period she would have worked until its termination and the decision not to renew her contract was made by the School Board.

RECOMMENDATION

It is accordingly, recommended that the School Board of Jackson County enter a Final Order awarding Respondent backpay for the period of time from her suspension until the School Board's action not to renew her contract.

RECOMMENDED this 28th day of February, 1992, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1992.

ENDNOTES

1/ Both Mrs. Wright and Mrs. Corbin informed Ralph Harrison of their prior unpleasant experience with Mrs. Barnes after they had learned that Mrs. Golden had been suspended and recommended for termination due to her conflict with Mrs. Barnes. They did so because they wanted Mr. Harrison to understand that there was another side to the story and that Mrs. Barnes was not necessarily a "perfect" supervisor as Mr. Harrison believed. Mr. Harrison told them that they could say all the good things that they wanted about Mrs. Golden, but they "better not have anything bad to say about Dorothy Barnes."

2/ Ms. Barnes is hearing impaired.

3/ Smith v. School Board of Leon County, 405 So. 2d 183 (Fla. 1st DCA 1981), does not stand for the proposition that Section 231.36, Florida Statutes, applies to non-instructional employees. In Smith, the non-instructional employee was charged with conduct utilizing the language of the statute. The court looked to the statute and rules defining the terms contained in the statute as guidance for the meaning of the charges against Smith. In this case, the Administrative Complaint does not use the formal terminology of Section 231.36, Florida Statutes. However, the Administrative Complaint does utilize language which which essentially matches the definitions of gross insubordination and willful neglect of duty referred to in Smith. Therefore, given the language of the Administrative Complaint, Smith is instructive in resolving the issue in this case.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4625

1. The facts contained in paragraphs 1, 2, 4 and 5 of Petitioner's Findings of Fact are adopted in substance, insofar as material.

   
   

2. The facts contained in the first two parts of finding number 4 of Petitioner's Proposed Findings of Fact were not shown the evidence. The first sentence of the third part of finding number four of Petitioner's Proposed Findings of Fact is subordinate. The remainder of the third part is adopted. The fourth, fith and sixth parts of finding number 4 of Petitioner's Proposed Findings of Fact are adopted. The fourth sentence of part seven of finding number 4 of Petitioner's Proposed Findings of Fact was not shown by the evidence. The remainder of part seven is subordinate.

3. The facts contained in the first three sentences of paragraph 3 of Petitioner's Proposed 'Findings of Fact are adopted. The remainder of the paragraph was not shown by the evidence.

4. The facts contained in paragraphs 1, 2, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15,

16, 17, 18, 22, 23, 24, 25 and 26 of Respondents' Proposed Findings of Fact are adopted in substance, insofar as material.

5. The facts contained in paragraphs 3, 7, 19, 20 and 21 of Respondents' Proposed Findings of Fact are subordinate.

COPIES FURNISHED:

H. Matthew Fuqua, Esquire Post Office Box 854 Marianna, FL 32446

Thomas W. Brooks, Esquire 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, FL 32302

Honorable Betty Castor Commission of Education The Capitol

Tallahassee, FL 32399-0400

Bill Peacock, Esquire Jackson Co. School Board

301 N. Jefferson Street Marianna, FL 32446

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-004625

Orders for Case No: 91-004625