STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3335

)

JANICE M. COOPER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 7, 1992, in Melbourne, Florida.

APPEARANCES

For Petitioner: Harold T. Bistline, Esquire

1970 Michigan Avenue, Building E Cocoa, Florida 32922

For Respondent: F. Michael Driscoll, Esquire

3815 North Highway One, Suite 58

Cocoa, Florida 32926 STATEMENT OF THE ISSUES

The parties' prehearing statement filed on September 25, 1992, appropriately identifies these issues for disposition:

1. Whether Respondent was given a termination conference with her supervisor wherein she was notified of the reasons for the proposed termination and given an opportunity to respond;

   
   

2. Whether the School Board of Brevard County complied with applicable law in regard to the recommended involuntary termination of Respondent from employment; and

   
   

3. Whether Respondent should be terminated for cause due to misconduct and insubordination.

PRELIMINARY STATEMENT

On November 5, 1990, Respondent was given a letter by her supervisor notifying her that her employment was terminated immediately for unsatisfactory performance.

The personnel action was placed on the School Board's agenda for January 22, 1991, in the form of a "superintendent's recommendation for termination."

As Respondent had filed a complaint with the Florida Commission on Human Relations (FCHR) and requested that the School Board's action be delayed until resolution of the other pending case, the item was tabled.

A "Notice of Determination: No Cause" was issued by the FCHR on December 23, 1991. In a letter dated April 22, 1992, Respondent requested a "formal board hearing."

At a meeting of the School Board on May 26, 1992, the matter was referred to the Division of Administrative Hearings for conduct of this formal hearing as provided in Section 120.57(1), F.S.

At the hearing, Petitioner presented the testimony of Abraham L. Collinsworth, Jerry Copeland, Margaret Lewis, Bob Barrett, Daniel Scheuerer, Patty Martin, Don Green, Lee Bailey and Flo Wilson. Petitioner's exhibits No. 1-8 and 10-15 were received in evidence. Exhibit No. 2, the FCHR report, was admitted for the limited purpose of showing the timing of the report. Exhibit

No. 9, a handwritten memo, was marked for identification but was rejected as not having been disclosed to opposing counsel as required, and as not having been identified by the author or otherwise presented as proper impeachment.

Respondent testified in her own behalf and presented the testimony of Karen Denbo, Mary Snelling, Annie Harris, George Fayson, Zoe Nawrocik, Peggy Hill, James Hulse, Bernice Cameron, and Bawanna Bostic. Respondent's exhibits No. 1-4 were received in evidence.

A transcript was filed on November 10, 1992, and the parties filed their proposed recommended orders on November 20 and 24, 1992. Petitioner also filed a post-hearing brief. The findings of fact proposed by each party are addressed in the attached appendix.

FINDINGS OF FACT

1. Respondent was employed by the Brevard County School District on January 15, 1990, as a Secretary III, Classified. She was assigned as secretary to Margaret Lewis, Director of Vocational Education.

   
   

2. Classified employees are distinguished from certified employees who are teachers or administrators who hold teaching certificates.

   
   

3. Respondent's duties included typing, handling and filing documents and correspondence, keeping budget and payroll records, copying and receiving incoming phone calls to the Department of Vocational Education.

   
   

4. For approximately six months, Respondent and her supervisor had a good working relationship. Both were new to the Brevard County School District, and Margaret Lewis felt that together they could make positive changes in the unit. Respondent's personnel evaluation dated March 15, 1990, rates her in the "exceptional high" range in every category, with the highest possible rating being given in the categories, "work attitude," "cooperativeness," "personal appearance" and "tardiness."

   
   

5. Something happened in the summer of 1990 around the time that the unit was moving from its office in Rockledge to the new district building in the Brevard County Governmental Center at Viera.

   The relationship between the two women rapidly deteriorated, a phenomenon observed by co-workers and the assistant superintendents, including Margaret Lewis' supervisor, Daniel Scheuerer. The circumstances were confusing, even to Jerry Copeland, Assistant Superintendent of Personnel Services.

   
   

6. None could pinpoint the cause of the rift, although both Ms. Cooper and Ms. Lewis offered their own theories.

   
   

   Ms. Cooper described her supervisor arriving at work one morning crying and upset over some domestic situation. She went into Ms. Lewis' office with her and urged her to go home. Ms. Lewis eventually did leave and was gone for several days. Upon her return, Ms. Cooper felt that Ms. Lewis was very cool toward her and began communicating with her through notes or through messages to other staff.

   
   

7. Ms. Lewis believes Ms. Cooper's work attitude changed radically after she was passed over for a secretarial position in the School Board attorney's office.

   
   

8. On two occasions, Ms. Cooper approached Abraham Collinsworth, the Superintendent, with concerns she had about Margaret Lewis. Mr. Collinsworth referred the matter back to Dr. Scheuerer, Ms. Lewis' supervisor and the Assistant Superintendent for Instructional Services. Dr. Scheuerer told the superintendent that he had a very disruptive situation with loud conversations and people not feeling good about each other.

   
   

   During the several months period, July through September 1990, Dr.

   Scheuerer met with the women individually and together. Ms. Cooper complained that Ms. Lewis required her to make too many copies of things, that she communicated with her through yellow stickers, "post-it" notes, and that she, Ms. Lewis, would not tell her where she was going. Dr. Scheuerer counselled Ms. Cooper to adapt to her supervisor's way of doing things and also made suggestions to Ms. Lewis of ways to improve communications, for example, allowing her secretary to keep the calendar.

   
   

   The meeting he had with both women together was very unpleasant. It was obvious that there was a lot of hostility and animosity, tension and stress between the two. Generally, however, Ms. Lewis conducted herself in a professional manner.

   
   

9. Ms. Cooper kept a tape recorder that she used to play subliminal tapes. Ms. Lewis felt that she was using the tape recorder to tape their conversations. Ms. Lewis felt that Ms. Cooper spent an inordinate amount of time away from her desk and abused break periods. Ms. Cooper said that she was making deliveries or copying.

   
   

   Ms. Lewis begin writing notes of their confrontations in order to avoid getting emotionally involved. This seemed to inflame Ms. Cooper. Ms. Cooper's reaction to direction was often either a sullen shrug or a verbal retort.

   
   

   Ms. Cooper felt Ms. Lewis gave her conflicting or serial requests. She also kept notes of their interactions.

   
   

10. Early on the morning of October 8, 1990, several employees in the area of Ms. Cooper's and Ms. Lewis' office overheard a verbal confrontation between the two. Ms. Cooper had her voice raised and when Ms. Lewis asked her not to talk so loud, she replied she wanted everyone to hear. It was obvious to Daniel

    Scheuerer, who also overheard part of the confrontation, that Ms. Cooper was the one doing the yelling.

    
    

11. On October 9, 1990, Ms. Lewis gave Ms. Cooper the following written reprimand:

    
    

    This is a formal letter of reprimand as a result of your unacceptable behavior on the morning of October 8, 1990. It is being issued as a result of your intentional (you stated that you wanted to be heard by everyone when I asked you to lower your voice) vociferous and disruptive shouting at me in your work area and the disrespect which you displayed toward me as your supervisor after I had made reasonable requests. This type of behavior is unacceptable, disturbing and disruptive to the work effort of the department and the entire area.

    
    

    This is to inform you that any similar outburst of this matter will result in your immediate termination.

    
    

    CC: Personnel File

    
    

    (Petitioner's exhibit No. 5)

    
    

12. Sometime around the end of September, or early October, Karen Denbo, the district Equal Employment Opportunity Officer, had a secretarial position open that would have been a lateral transfer (same level, same pay) for Janice Cooper. She applied, and Dr. Scheuerer asked Ms. Denbo to interview Ms. Cooper. Ms. Denbo asked if he was telling her to hire Ms. Cooper. Dr. Scheuerer was given the impression by both Ms. Cooper and Ms. Denbo that they had misgivings about Ms. Cooper performing in a position requiring a lot of technical filings for which there would be no training. Ms. Cooper was not offered the transfer and no other efforts were made to find Ms. Cooper alternative employment.

    
    

13. On October 26, 1990, Ms. Lewis gave Janice Cooper a memorandum titled "Job Expectations." It informed her that her supervisor had concerns regarding job performance, relationships with other employees, work attitude and failure to follow administrative directives. It directed her to take specified times for break and it stated she must be accurate, careful, effective and courteous. It stated that her performance was not satisfactory and warned that "failure to make necessary adjustments will result in additional disciplinary action." (Petitioner's exhibit No. 6)

    
    

14. On November 1, 1990, near the end of the work week, Ms. Lewis needed some coping done and could not find Janice Cooper. She filled out a copy request form and put Ms. Cooper's name as the contact person. Ms. Cooper returned and Ms. Lewis asked if the form was completed properly. Ms. Cooper looked at it and then replied, "It if says what you want it to say, then its alright." After Ms. Lewis returned to her office, Ms. Cooper followed her in and said if she was going to use her name she needed to get her permission first. As Ms. Lewis began writing down Ms. Cooper's comments, Ms. Cooper reached across the desk, knocking off pencils and paper, and tore the paper out of her hand.

    Ms. Lewis reached for the phone and asked Dr. Scheuerer to come immediately.

    
    

15. Ms. Cooper left and did not return until November 5th, after the weekend. In the meantime, Ms. Lewis met with Dr. Scheuerer; the Assistant Superintendent of Personnel, Jerry Copeland; and the Labor Relations Director, Bob Barrett.

    
    

16. Upon Ms. Cooper's return to work, Ms. Lewis called her in to her office. Bob Barrett was also present. She was given this letter:

    
    

    November 5, 1990

    
    

    Ms. Janice Cooper, Secretary Vocational Education Department

    
    

    Dear Ms. Cooper:

    
    

    This is to inform you that your employment with the School Board of Brevard County is terminated effective immediately, November 5, 1990. The reason for this termination is your unsatisfactory performance.

    
    

    You have been counseled and warned on several occasions regarding the need to improve your performance. On October 26, 1990, you were provided a memorandum which outlined your responsibilities and gave you direction for improving your performance. You were notified that your performance was unsatisfactory and that your failure to make the necessary adjustments would bring additional disciplinary action.

    
    

    Since October 26, 1990, your performance has continued to deteriorate to the point that your unwillingness to make the effort required to function as a Secretary III necessitates this action.

    
    

    Prior to your departure from the work site today, you should turn in any keys or other such School Board material which was issued to you to uses in your job.

    Sincerely, Margaret Lewis

    Director, Vocational Education

    
    

    (Respondent's Exhibit No. 2) (emphasis in original)

    When asked if she had anything to say, Ms. Cooper made no response and refused to acknowledge receipt of the letter. She was directed to collect her personal items and to leave the office.

    
    

17. With guidance from the State Department of Education, the Brevard County School District has a policy of discipline of all employees which it calls, "NEAT." The acronym stands for the right to "Notice," followed by "Explanation," followed by "Assistance," within a reasonable "Time."

    
    

    If the deficiencies are not corrected at the end of this process, the employee may be terminated.

    
    

18. The School Board's adopted rule 6Gx5-7.05, provides in pertinent part:

    
    

    1. Suspension/Dismissal.

       1. A certificated employee may be suspended or dismissed at any time during the work year pursuant to provisions set forth in Florida Statute 230.33(7)(h), 231.36(4)(6) and the Rules of the Educational Practices Commission.

       2. A classified employee may be dismissed for cause. The immediate supervisor shall suspend the employee and notify him/her in writing of the recommendation for dismissal, stating the cause.

    2. Termination Date.

       The effective date of any termination of employment or suspension shall be the last day on which the employee works.

       
       

       (Respondent's Exhibit No. 1)

       
       

19. In addition to the above, the School Board's administrative staff acknowledge an employee's right to a pre-termination process that gives her an opportunity to explain why she should not be terminated.

    
    

20. The record in this proceeding establishes that Janice Cooper was insubordinate on several occasions. She yelled at her supervisor, disrupting the workplace; she refused to follow instructions or was insolent; and finally, she virtually assaulted her supervisor when she grabbed the paper and tore it up.

    
    

    There is little specific evidence, however, of her poor job performance. Her only evaluation during the ten months of her employment was exceptionally positive. The "Job Expectations" memorandum was provided four days before the incident leading to Ms. Cooper's separation, which incident was plainly insubordination or misconduct, but not "poor job performance."

    
    

21. The administrative staff make no apparent distinction between "termination" and "suspension" as both are separations from employment; and they do not view Ms. Lewis' letter, therefore, as a violation of the policy described in paragraph 18 above. Practically, there is no distinction, as no separation is final until the Board takes its action. In the meantime, the employee is no longer on the payroll.

22. In Ms. Cooper's case, the time off of the payroll has been two years, most of which time has been the result of circumstances beyond the control of the School Board.

    
    

23. Neither before, nor immediately after her termination by Margaret Lewis, was Janice Cooper offered reasonable opportunity to explain why she should not be terminated. She was given the letter and asked if she had a response. The letter states that termination is a fait accompli. She did not respond, and was told to leave.

    
    

    No evidence was presented as to the need to take immediate action. Both the district and Ms. Cooper could have benefited from a brief cooling off period; the district, by taking the time to draft a letter reflecting the proper cause for its action; and Ms. Cooper, by having an opportunity to reflect on her employment jeopardy and to prepare a response.

    
    

24. The district presented evidence sufficient to support a finding of cause to terminate Ms. Cooper. It did not, however, prove that the cause was "poor performance." For that reason, and because the employee was not offered a reasonable opportunity to respond, the termination procedure was fatally flawed.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.

    
    

26. As a classified employee, Ms. Cooper may be dismissed only for cause. Her supervisor has the authority to suspend her and must notify her in writing of the recommendation for dismissal, stating the cause. Rule 6Gx5-7.05, of the School Board of Brevard County.

    
    

27. A tenured public employee has a significant property interest in her employment, which may not be deprived without notice and an opportunity to respond. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L.Ed. 2nd 494, 105 S.Ct. 1487 (1985).

    
    

28. The right to a hearing does not depend on a demonstration of certain success and what is required may be something less than a full evidentiary hearing.

    
    

    "The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. [Citations deleted] To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee."

    
    

    Loudermill, 105 S.Ct., at 1495-6.

    
    

29. Ms. Cooper had neither proper notice nor an opportunity to respond prior to her termination, or "separation." The notice stated the wrong reason, poor performance, rather than insubordination or misconduct, and being invited to say something after being handed a letter of termination is not a meaningful opportunity to defend.

30. Garraghty v. Jordan, 830 F.2d 1295 (4th Cir. 1987), cited by Petitioner to support the sufficiency of the due process here, is easily distinguished. In Garraghty, the employee (a prison warden) was charged with insubordination when he refused to provide requested information after his shift ended and refused to immediately drive to a meeting one and a half hours away to discuss the problem. He did appear for a meeting called by his supervisor several days later, was told the meeting was non-adversarial, that his superiors were concerned about the incident in question, and that he should explain his conduct. At the close of the meeting, he was suspended without pay for five days.

    
    

31. That informal pre-deprivation hearing was upheld with this significant language:

    
    

    The deprivation caused by a short-term suspension, when balanced with the government's interest in expeditious and effective discipline and the administrative burden of providing a neutral decision maker for every routine suspension, does not warrant pre-deprivation proceedings before a neutral party. Realities of the work place, especially in the paramilitary environment of corrections departments, require that authority be respected and that discipline be swift.

    
    

    Garraghty, at 1302. (emphasis added)

    
    

32. The circumstances here are also distinguished from those in Simmons v. Department of Natural Resources, 513 So.2d 723 (Fla. 1st DCA 1987), also cited by Petitioner. In Simmons, the appellate court found that the employee was deprived of due process when he was not afforded a pre-termination hearing after he was deemed to have abandoned his position, but that he was not entitled to back pay when a full post-termination hearing resulted in a valid final order supporting the finding of abandonment.

    
    

33. In this case, the purported termination in November 1990 was ineffective for several reasons. Only the School Board may dismiss an employee. See, Subsection 230.23(5)(f), F.S., and Subsection 230.33(7)(e), F.S. The notice to Ms. Cooper stated the wrong reason for the action, and finally, she was not given an opportunity to respond.

    
    

34. But the proceeding here is still on-going, and final action by the Board awaits this recommended order. The Board, therefore, has the opportunity to provide relief in this administrative proceeding rather than forcing the employee to an "action at law" as suggested in Simmons, supra.

    
    

35. Neither party contends that the formal administrative hearing held in October 1992 does not meet the criteria for Loudermill due process. Prior to that formal administrative hearing, the employee was provided proper notice of the charges against her in this "Petitioner's Allegations of Fact," filed on July 10, 1992:

    
    

    * * *

    1. Respondent's performance was satisfactory until after respondent had been employed for several months. After this time respondent became complacent of her duties and hostile and insubordinate towards her supervisor, Margaret Lewis.

    2. Respondent's misconduct and insubordinate actions include:

    1. Abuse of the honor system for work breaks.

    2. Unexplained absences from her work station.

    3. Hostility and insubordinate actions towards her supervisor.

    4. Discourteous conduct towards co-workers and visitors.

    5. Disruptive and argumentative behavior in the work area.

    6. Substandard work and failure or refusal to improve performance.

    * * *

    
    

36. As discussed above, Petitioner proved the misconduct and insubordination, but not poor performance. Section 231.29(2)(a), F.S. (1989), requires that:

    
    

    [m]aterials related to work performance, discipline, suspension or dismissal must be reduced to writing and signed by a person competent to know the facts or make the judgment.

    
    

37. The only written material related to Ms. Cooper's work performance is her extraordinarily high evaluation and a very general memorandum given to her shortly before her termination.

    
    

38. Insubordination is an appropriate cause for termination. Jackson v. School Board of Dade County, 426 So.2d 1149 (Fla. 3rd DCA 1983).

    
    

39. Section 120.57 proceedings are intended to formulate final agency action, not review action taken earlier and preliminarily. McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977). With that long-established administrative law principle in mind, the hearing officer makes the recommendation below on these summary conclusions:

1. The attempted termination on November 5, 1990, was fatally flawed and a nullity.

   
   

2. Thereafter, Respondent was given notice and an opportunity to be heard, satisfying any substantive and procedural due process requirements, and "curing" the prior defects.

   
   

3. At that hearing, Petitioner proved Respondent's misconduct and insubordination as sufficient cause for termination.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the School Board of Brevard County enter its final order reinstating Janice Cooper to full back pay and benefits from November 9, 1990, until and including October 7, 1992, and approving her termination effective October 7, 1992.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January 1993.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1993.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings on the findings of fact proposed by the parties.

Petitioner's Proposed Findings

1. Adopted in Paragraph 1.

2. Adopted in Paragraph 3.

3. Adopted in Paragraph 4.

4. Adopted in substance in Paragraph 7.

5. Adopted in substance in Paragraph 10.

6. Adopted in substance in Paragraph 8.

7. Adopted in substance in Paragraph 10.

8. Adopted in substance in Paragraph 11.

9. With the exception of the October 26, 1990 memo, the facts proposed here are rejected as unsupported by the weight of evidence. Poor performance was not proven, nor was it proven that Respondent was taping conversations, rather than playing her own "subliminal tapes."

10. Adopted in substance in Paragraph 14.

11. Adopted in substance in Paragraph 16.

12. Rejected as irrelevant and immaterial. Moreover, there was some mention of a grievance, but no evidence of what this process was or whether it was actually filed and withdrawn.

13. Adopted in Paragraph 17.

14. Rejected as contrary to the weight of evidence, as to unsatisfactory job performance, which is distinguished, according to the School Board's witness, from "insubordination" or misconduct. (Transcript, p. 70-71)

15. Rejected as contrary to the weight of evidence.

Respondent's Proposed Findings

1. Adopted in Paragraph 1.

2. Adopted in substance in Paragraph 16.

3. Adopted in Paragraph 18.

4-8. Rejected as argument or conclusions, or summary of testimony rather than discrete findings of fact. Some of those arguments and conclusions have been adopted in the conclusions of law herein.

COPIES FURNISHED:

Harold T. Bistline, Esquire Building E

1970 Michigan Avenue

Cocoa, Florida 32922

F. Michael Driscoll, Esquire Suite 58

3815 North Highway One Cocoa, Florida 32926

Abraham L. Collinsworth, Superintendent Brevard County School Board

2700 St. Johns Street Melbourne, Florida 32940-6699

Betty Castor, Commissioner Department of Education The Capitol

Tallahassee, Florida 32399-0400

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 ten 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.

================================================================= FINAL ORDER ON REQUEST FOR FEES

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3335

)

JANICE M. COOPER, )

)

Respondent. )

)

FINAL ORDER ON REQUEST FOR FEES PURSUANT TO SECTION 120.57(1)(B)5.

In his proposed recommended order, Counsel for Respondent has asserted her entitlement to fees and expenses pursuant to Section 120.57(1)(b)5., F.S.

Nothing in the record of this proceeding supports a finding of "improper purpose" for any "pleading, motion or other paper," which finding is required for the imposition of sanctions suggested by Respondent.

No further proceeding is required for determination of this issue. See, The Corporation of the President of the Church of Jesus Christ of the Latter Day Saints v. St. Johns River Water Management District and City of Cocoa, 13

F.A.L.R. 1014 (DOAH 1991), and the abundant authority cited therein.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of January 1993.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1993.

COPIES FURNISHED:

Harold T. Bistline, Esquire Building E

1970 Michigan Avenue

Cocoa, Florida 32922

F. Michael Driscoll, Esquire Suite 58

3815 North Highway One Cocoa, Florida 32926

Abraham L. Collinsworth, Superintendent Brevard County School Board

2700 St. Johns Street Melbourne, Florida 32940-6699

Betty Castor, Commissioner Department of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

=================================================================

AGENCY FINAL ORDER

================================================================= BEFORE THE SCHOOL BOARD OF BREVARD COUNTY, FLORIDA

BREVARD COUNTY SCHOOL BOARD,

Petitioner, DOAH CASE NO. 92-3335

vs.

JANICE M. COOPER,

Respondent.

/

FINAL ORDER

This matter coming on to be heard before the SCHOOL BOARD OF BREVARD COUNTY, FLORIDA, on April 14, 1993, for the entry of a final order in this cause, and the Board having reviewed the complete record of the Division of Administrative Hearings administrative proceeding, including the Recommended Order and the Exceptions timely filed by Petitioner, and having further heard argument of counsel for both the Petitioner and Respondent, and after due and careful deliberation of the record in this cause, the Board enters its Final Order as follows:

FINDINGS OF FACT

1. Respondent was employed by the Brevard County School District on January 15, 1990, as a Secretary III, Classified. She was assigned as secretary to Margaret Lewis, Director of Vocational Education.

   
   

2. Classified employees are distinguished from certified employees who are teachers or administrators who hold teaching certificates.

   
   

3. Respondent's duties included typing, handling and filing documents and correspondence, keeping budget and payroll records, copying and receiving incoming phone calls to the Department of Vocational Education.

   
   

4. For approximately six months, Respondent and her supervisor had a good working relationship. Both were new to the Brevard County School District, and Margaret Lewis felt that together they could make positive changes in the unit. Respondent's personnel evaluation dated March 15, 1990, rates her in the "exceptional high" range in every category, with the highest possible rating being given in the categories, "work attitude", "cooperativeness", "personal appearance" and "tardiness".

   
   

5. Something happened in the summer of 1990 around the time that the unit was moving from its office in Rockledge to the new district building in the Brevard County Governmental Center at Viera.

   
   

   The relationship between the two women rapidly deteriorated, a phenomenon observed by coworkers and the assistant superintendents, including Margaret Lewis' supervisor, Daniel Scheuerer. The circumstances were confusing, even to Jerry Copeland, Assistant Superintendent of Personnel Services.

   
   

6. None could pinpoint the cause of the rift, although both Ms. Cooper and Ms. Lewis offered their own theories.

   
   

   Ms. Cooper described her supervisor arriving at work one morning crying and upset over some domestic situation. She went into Ms. Lewis' office with her and urged her to go home. Ms. Lewis eventually did leave and was gone for several days. Upon her return, Ms. Cooper felt that Ms. Lewis was very cool toward her and began communicating with her through notes or through messages to other staff.

   
   

7. Ms. Lewis believes Ms. Cooper's work attitude changed radically after she was passed over for a secretarial position in the School Board attorney's office.

8. On two occasions, Ms. Cooper approached Abraham Collinsworth, the Superintendent, with concerns she had about Margaret Lewis. Mr. Collinsworth referred the matter back to Dr. Scheuerer, Ms. Lewis' supervisor and the Assistant Superintendent for Instructional Services. Dr. Scheuerer told the superintendent that he had a very disruptive situation with loud conversations and people not feeling good about each other.

   
   

   During the several months period, July through September, 1990, Dr.

   Scheuerer met with the women individually and together. Ms. Cooper complained that Ms. Lewis required her to make too many copies of things, that she communicated with her through yellow stickers, "post-it" notes, and that she, Ms. Lewis, would not tell her where she was going. Dr. Scheuerer counselled Ms. Cooper to adapt to her supervisor's way of doing things and also made suggestions to Ms. Lewis of ways to improve communications, for example, allowing her secretary to keep the calendar.

   
   

   The meeting he had with both women together was very unpleasant. It was obvious that there was a lot of hostility and animosity, tension and stress between the two. Generally, however, Ms. Lewis conducted herself in a professional manner.

   
   

9. Ms. Cooper kept a tape recorder that she used to play subliminal tapes. Ms. Lewis felt that she was using the tape recorder to tape their conversations. Ms. Lewis felt that Ms. Cooper spent an inordinate amount of time away from her desk and abused break periods. Ms. Cooper said that she was making deliveries or copying.

   
   

   Ms. Lewis begin writing notes of their confrontations in order to avoid getting emotionally involved. This seemed to inflame Ms. Cooper. Ms. Cooper's reaction to direction was often either a sullen shrug or a verbal retort.

   
   

   Ms. Cooper felt Ms. Lewis gave her conflicting or serial requests. She also kept notes of their interactions.

   
   

10. Early on the morning of October 8, 1990, several employees in the area of Ms. Cooper's and Ms. Lewis' office overheard a verbal confrontation between the two. Ms. Cooper had her voice raised and when Ms. Lewis asked her not to talk so loud, she replied she wanted everyone to hear. It was obvious to Daniel Scheuerer, who also overheard part of the confrontation, that Ms. Cooper was the one doing the yelling.

    
    

11. On October 9, 1990, Ms. Lewis gave Ms. Cooper the following written reprimand:

    
    

    This is a formal letter of reprimand as a result of your unacceptable behavior on the morning of October 8, 1990. It is being issued as a result of your intentional (you stated that you wanted to be heard by everyone when I asked you to lower your voice) vociferous and disruptive shouting at me in your work area and the disrespect which you displayed toward me as your supervisor after I had made reasonable requests. This type of behavior is unacceptable, disturbing and disruptive to the work effort of the department and the entire area.

    This is to inform you that any similar outburst of this matter will result in your immediate termination.

    
    

    CC: Personnel File (Petitioner's exhibit No. 5)

12. Sometime around the end of September, or early October, Karen Denbo, the district Equal Employment Opportunity Officer, had a secretarial position open that would have been a lateral transfer (same level, same pay) for Janice Cooper. She applied, and Dr. Scheuerer asked Ms. Denbo to interview Ms. Cooper. Ms. Denbo asked if he was telling her to hire Ms. Cooper. Dr. Scheuerer was given the impression by both Ms. Cooper and Ms. Denbo that they had misgivings about Ms. Cooper performing in a position requiring a lot of technical filings for which there would be no training. Ms. Cooper was not offered the transfer and no other efforts were made to find Ms. Cooper alternative employment.

    
    

13. On October 26, 1990, Ms. Lewis gave Janice Cooper a memorandum titled "Job Expectations". It informed her that her supervisor had concerns regarding job performance, relationships with other employees, work attitude and failure to follow administrative directives. It directed her to take specified times for break and it stated she must be accurate, careful, effective and courteous. It stated that her performance was not satisfactory and warned that "failure to make necessary adjustments will result in additional disciplinary action." (Petitioner's exhibit No. 6)

    
    

14. On November 1, 1990, near the end of the work week, Ms. Lewis needed some copying done and could not find Janice Cooper. She filled out a copy request form and put Ms. Cooper's name as the contact person. Ms. Cooper returned and Ms. Lewis asked if the form was completed properly. Ms. Cooper looked at it and then replied, "It if says what you want it to say, then its all right." After Ms. Lewis returned to her office, Ms. Cooper followed her in and said if she was going to use her name she needed to get her permission first.

    As Ms. Lewis began writing down Ms. Cooper's comments, Ms. Cooper reached across the desk, knocking off pencils and paper, and tore the paper out of her hand.

    
    

    Ms. Lewis reached for the phone and asked Dr. Scheuerer to come immediately.

    
    

15. Ms. Cooper left and did not return until November 5th, after the weekend. In the meantime, Ms. Lewis met with Dr. Scheuerer; the Assistant Superintendent of Personnel, Jerry Copeland; and the Labor Relations Director, Bob Barrett.

    
    

16. Upon Ms. Cooper's return to work, Ms. Lewis called her in to her office. Bob Barrett was also present. She was given this letter:

    
    

    November 5, 1990

    
    

    Ms. Janice Cooper, Secretary Vocational Education Department

    Dear Ms. Cooper:

    
    

    This is to inform you that your employment with the School Board of Brevard County is terminated effective immediately, November 5, 1990. The reason for this termination is your unsatisfactory performance.

    
    

    You have been counseled and warned on several occasions regarding the need to improve your performance. On October 26, 1990, you were provided a memorandum which outlined your responsibilities and gave you direction for improving your performance. You were notified that your performance was unsatisfactory and that your failure to make the necessary adjustments would bring additional disciplinary action.

    
    

    Since October 26, 1990, your performance has continued to deteriorate to the point that your unwillingness to make the effort required to function as a Secretary III necessitates this action.

    
    

    Prior to your departure from the work site today, you should turn in any keys or other such School Board material which was issued to you to uses in your job.

    Sincerely, Margaret Lewis

    Director, Vocational Education

    
    

    (Respondent's Exhibit NO. 2) (emphasis in original)

    
    

    When asked if she had anything to say, Ms. Cooper made no response and refused to acknowledge receipt of the letter. She was directed to collect her personal items and to leave the office.

    
    

17. With guidance from the State Department of Education, the Brevard County School District has a policy of discipline of all employees which it calls, "NEAT". The acronym stands for the right to "Notice", followed by "Explanation", followed by "Assistance", within a reasonable "Time".

    
    

    If the deficiencies are not corrected at the end of this process, the employee may be terminated.

    
    

18. The School Board's adopted Rule 6Gx5-7.05, provides in pertinent part:

    
    

    1. Suspension/Dismissal.

       1. A certificated employee may be suspended or dismissed at any time during the work year pursuant to provisions set forth in Florida Statute 230.33(7)(h), 231.36(4)(6) and the

          Rules of the Educational Practices Commission.

       2. A classified employee may be dismissed for cause. The immediate supervisor shall suspend the employee and notify him/her in writing of the recommendation for dismissal, stating the cause.

    2. Termination Date.

    The effective date of any termination of employment or suspension shall be the last day on which the employee works.

    
    

    (Respondent's Exhibit No. 1)

    
    

19. In addition to the above, the School Board's administrative staff acknowledge an employee's right to a pretermination process that gives her an opportunity to explain why she should not be terminated.

    
    

20. The record in this proceeding establishes that Janice Cooper was insubordinate on several occasions. She yelled at her supervisor, disrupting the workplace; she refused to follow instructions or was insolent; and finally, she virtually assaulted her supervisor when she grabbed the paper and tore it up. The evidence also showed Ms. Cooper has been notified repeatedly, both orally and in writing, that her insubordinate behavior and failure to follow directives constituted unsatisfactory performance which was cause for termination.

    
    

21. The administrative staff made no apparent distinction

    between "termination" and "suspension" as both are separations from employment; and they do not view Ms. Lewis' letter, therefore, as a violation of the policy described in paragraph 18 above. Practically, there is no distinction, as no separation is final until the Board takes its action. In the meantime, the employee is no longer on the payroll.

    
    

22. In Ms. Cooper's case, the time off of the payroll has been two years, most of which time has been the result of circumstances beyond the control of the School Board.

    
    

23. Janice Cooper was given a pretermination hearing by her supervisor on November 5, 1990, at which time she was given written notice of the reasons for her proposed termination; was given an explanation of the District's evidence to sustain the reasons for the proposed termination; and was given an opportunity to respond and present her side of the story which she declined to do of her own volition.

    
    

24. The District presented sufficient evidence to support a finding of cause for termination of Ms. Cooper for insubordination, disruptive and insolent behavior, failure to follow instructions and virtually assaulting her supervisor, which actions constitute unsatisfactory performance. Respondent was given a lawful pretermination hearing and the termination procedure was in accordance with School District policy and rule.

    
    

    CONCLUSIONS OF LAW

    
    

25. The SCHOOL BOARD OF BREVARD COUNTY, FLORIDA, has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.

26. As a classified employee, Ms. Cooper may be dismissed only for cause. Her supervisor has the authority to suspend her and must notify her in writing of the recommendation for dismissal, stating the cause. Rule 6Gx5-7.05, of the School Board of Brevard County.

    
    

27. A tenured public employee has a significant property interest in her employment, which may not be deprived without notice and an opportunity to respond. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L.Ed. 2nd 494, 105 S.Ct. 1487 (1985)

    
    

    The right to a hearing does not depend on a demonstration of certain success and what is required may be something less than a full evidentiary hearing.

    
    

    "The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. [Citations deleted] To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee."

    
    

    Loudermill, 105 S.Ct., at 1495-6.

    
    

28. Ms. Cooper was notified on several occasions prior to her termination that her insubordinate behavior and failure to follow directives constituted unsatisfactory job performance which would lead to termination if not corrected. Ms. Cooper was provided a proper pretermination hearing on November 5, 1990, which satisfied the requirements set forth in Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985).

    
    

29. The evidence in the record establishes that Ms. Cooper was insubordinate and committed misconduct on the job. Misconduct and insubordinate behavior constitutes unsatisfactory performance and is grounds for termination from employment of the Brevard County School District.

    
    

30. Even if the pretermination procedure employed by Ms. Cooper's supervisor was flawed, the Sec. 120.57 formal administrative hearing conducted in this case established that Ms. Cooper was properly terminated for unsatisfactory performance which constitutes cause for termination.

    
    

31. Because Ms. Cooper was properly terminated for cause, she is not entitled to an award of back pay and benefits for the period between the day of termination on November 5, 1990, and the day of the formal administrative hearing on October 7, 1992. Simmons v. Department of Natural Resources, 513 So.2d 723 (Fla. 3rd DCA 1987). This is particularly so in this case because the almost two (2) year period between Ms. Cooper's termination by her supervisor and the formal administrative hearing was due to Ms. Cooper's request that the School Board's action on her termination be delayed until the resolution of her complaint with the Florida Commission on Human Relations.

It is thereupon,

ORDERED that the Recommended Order of the Hearing Officer is adopted in part and rejected in part.

Paragraphs 20, 23 and 24 of the Recommended Order are rejected as not being supported by substantial competent evidence in the record. Paragraphs 20, 23 and 24 of this Final Order are substituted therefore as being supported by substantial competent evidence in the record.

The Conclusions of Law contained in paragraphs 28, 29, 30, 31 and 33 of the Recommended Order are rejected in so far as the Hearing Officer finds that the Respondent's misconduct and insubordination do not constitute unsatisfactory performance and that the Respondent was not provided a proper pretermination conference on November 5, 1990. The School Board specifically concludes that Respondent's misconduct and insubordination constitutes unsatisfactory performance and cause for termination from employment with the Brevard County School District. The Board also concludes that even if the pretermination was flawed, the Sec. 120.57 formal administrative hearing conducted in this matter established that Respondent was properly terminated for cause and that Respondent is not entitled to back pay and benefits from November 5, 1990 until October 7, 1992.

Accordingly, Respondent's employment with the Brevard County School District is terminated effective November 5, 1990.

This confirming Final Order was signed on behalf of the Board this 16th day of April, 1993.

THE SCHOOL BOARD OF BREVARD COUNTY, FLORIDA

By: Chairman

Filed with the Clerk in the Office of the Superintendent this 16th day of April, 1993.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the School Board of Brevard County, Florida and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, Fifth District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

I HEREBY CERTIFY that a true copy of this Final Order is furnished by U.S. Mail to HAROLD T. BISTLINE, attorney for the Superintendent, Post Office Box 8248, Cocoa, Florida 32924-8248 and F.Michael Driscoll, attorney for Respondent, Suite 58, 3815 North Highway One, Cocoa, Florida 32926, this 16th day of April, 1993.

WILLIAM C. WALIER, JR.

School Board Attorney

Docket for Case No: 92-003335

Orders for Case No: 92-003335