STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2937

)

KAREN E. MAROON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on October 5, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: John M. Hament, Esquire

Suite 785, 1800 Second Street

Sarasota, Florida 34236

For Respondent: Robert J. Coleman, Esquire

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 32902 STATEMENT OF THE ISSUES

Whether proper cause exists for the Petitioner to terminate the employment of the Respondent.

PRELIMINARY STATEMENT

Respondent Karen E. Maroon was employed by the Lee County School Board as a bus driver, a classified employee of the Lee County School District.

By letter dated April 1, 1993, the Respondent was notified that the Superintendent of Lee County schools had determined that cause existed to terminate the Respondent from her employment. The letter stated that the superintendent's decision was "based on your misconduct exhibited on March 5, 1993, at Bonita Springs Middle School when you were insubordinate and directed profanity towards Helen Hicks-Wiley, Assistant Principal." The letter informed the Respondent that the superintendent would recommended at the April 13, 1993 meeting of the School Board that she be dismissed from her employment.

By Petition for Termination of Employment dated April 9, 1993, the Respondent was notified of the specific misconduct allegations of which she was charged. Paragraph 6 of the Petition provides as follows:

The Superintendent has conducted an investigation of allegations made against Ms. Maroon concerning misconduct occurring at Bonita Springs Middle School on Friday, March 5, 1993, which involved insubordination and use of profanity and inappropriate language directed toward Assistant Principal Helen Hicks-Wiley. Specifically, after Ms. Maroon approached Ms. Wiley to discuss two bus referrals and was told that she (Ms. Wiley) would not be able to discuss them at that time because of the emergency fire evacuation and the boarding of students on buses, Ms.

Maroon continued to insist that Ms. Wiley address the matter immediately. Despite Ms. Wiley repeatedly telling Respondent that the matter would have to wait, and that she preferred not to discuss it in front of students, Respondent was adamant that Ms.

Wiley talk about the referrals at once. During this confrontation, Ms. Maroon blocked Ms. Wiley's movements and after Ms. Wiley tried to avoid further contact with

Respondent so as to continue with her duties, Ms. Maroon threatened: "Don't touch me. If you touch me, b---h, I will kick your a--." Ms. Maroon refused to move away or to allow Ms. Wiley to move about freely, which compelled Ms. Wiley to radio the Resource Officer for assistance.

The Respondent requested a formal administrative hearing. The matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing, the Petitioner presented the testimony of five witnesses and had exhibits numbered 1-3 admitted into evidence. The Respondent presented the testimony of four witnesses, testified on her own behalf and had exhibits numbered 1-4 and 6 admitted into evidence. A prehearing stipulation filed by the parties was admitted as a Hearing Officer's exhibit.

A transcript of the hearing was filed. Both parties, subsequent to requesting and receiving an extension of time for filing, submitted proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. From September, 1990, and at all times material to this case, Karen E. Maroon (Respondent) was employed on an annual contract as a bus driver for the Lee County School District.

   
   

2. "Bus referrals" are the method used by bus drivers to report student misconduct to appropriate school authorities. A referral consists of a multi- part form completed by the bus driver which identifies the name of the student alleged to have committed the infractions and a description of the offending behavior. The form is submitted to the school official responsible for addressing bused student misbehavior. The official reviews the report and completes the form by setting forth the action taken in response to the referral.

   
   

3. At Bonita Springs Middle School, Assistant Principal Helen Hicks-Wiley is responsible for bus referrals.

   
   

4. On March 3, 1993, the Respondent wrote several bus referrals alleging that three female students had acted improperly on the Respondent's bus. She did not turn them in at that time. The next day, the Respondent was absent from work.

   
   

5. On the morning of March 5, 1993, the Respondent turned the referrals into the Bonita Springs school office. Ms. Hicks-Wiley reviewed the referrals and wrote "see me" on them.

   
   

6. On the afternoon of March 5, 1993, the Respondent arrived at the Bonita Springs Middle School prior to 3:30 p.m. Upon her arrival, another bus driver delivered the Respondent's referral slips on which Ms. Hicks-Wiley had written "see me." The Respondent began attempting to locate Ms. Hicks-Wiley.

   
   

7. Bonita Springs Middle School students are released from class in two sections. Bus students are released first. After buses have departed, the remaining students are released.

   
   

8. At approximately 3:30 p.m., the Respondent located the school's principal and inquired of Ms. Hicks-Wiley location. He stated he did not know where she was. During that very short conversation, the Respondent was in a hurry and somewhat angry. At that time, the 3:30 bell signaling the first release of students was sounded.

   
   

9. At 3:30 p.m., Ms. Hicks-Wiley was in front of the school at the site of the bus transport staging area. It was her usual responsibility to monitor the area while the students boarded the buses.

   
   

10. At the 3:30 p.m. first release bell, approximately 500 students began exiting the building on their way to their buses. At approximately 3:31 p.m., the school fire alarm sounded. Smoke, from what was subsequently determined to be an overheated water cooler, was visible in one hallway.

    
    

11. As the fire alarm sounded, the bus-riding students, already in the hallways and exiting the building, were joined by the evacuation of approximately 200 additional students.

12. As the students became excited, the fire alarm compounded the typical confusion expected at the close of the middle school day. The students were more noisy than usual. The fire alarm continued to ring. Some of the buses, engines running, were waiting to depart.

    
    

13. At about 3:32 p.m., the Respondent approached Ms. Hicks-Wiley in front of the school and inquired as to the "see me" notation on the referrals.

    
    

14. Because Ms. Hicks-Wiley was otherwise occupied with the evacuation of students from the facility, she declined to discuss the referrals at that time and directed the Respondent to contact her on Monday.

    
    

15. The Respondent was apparently dissatisfied with Ms. Hicks-Wiley's response and attempted to continue the conversation. Ms. Hicks-Wiley repeatedly declined to discuss the matter in front of the milling children and directed the Respondent to contact her on Monday.

    
    

16. Ms. Hicks-Wiley's manner in declining to discuss the matter at that time was to use the "broken record method" during which she simply repeated again and again her direction to contact her on Monday.

    
    

17. Ms. Hicks-Wiley attempted to walk past the Respondent so as to continue her supervision of the bus loading area. As Ms. Hicks-Wiley walked, the Respondent placed her hand on Ms. Hicks-Wiley's arm.

    
    

18. The evidence is insufficient to establish that Ms. Maroon blocked Ms. Hicks-Wiley's movements.

    
    

19. Ms. Hicks-Wiley lost her temper, throwing her hands into the air and stating "Don't touch me. Don't ever touch me."

    
    

20. Ms. Hicks-Wiley's fingernails are exceptionally long. The Respondent, having lost her temper and apparently feeling threatened by the length of Ms. Hicks-Wiley's nails, threw her hands into the air and stated "Don't touch me.

    If you touch me, bitch, I will kick your ass."

    
    

21. Beyond the Respondent's touching of Ms. Hicks-Wiley's arm, there is no evidence that either woman touched the other.

    
    

22. Ms. Hicks-Wiley then directed the Respondent to get on her bus and complete her job duties. Ms. Hicks-Wiley, who was equipped with a portable transmitter radio also contacted the school's Resource Officer. He arrived at the site but was not required to intervene.

    
    

23. The Respondent, upset by the situation, returned to her bus, and departed from the school with her load of students.

    
    

24. The Lee County Superintendent of Schools directed an investigation of the incident. On March 10, 1993, a conference was held at which time the Respondent was provided an opportunity to respond to the allegations. She denied the allegations.

    
    

25. On March 10, 1993, the Respondent was suspended with pay from her employment as a bus driver.

    CONCLUSIONS OF LAW

    
    

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

    
    

27. The employment of a non-instructional, classified employee of the school board may be terminated for proper cause. Sections 230.23(5)(f) and 447.209, Florida Statutes. In order to prevail, the Petitioner must establish by a preponderance of the evidence that the Respondent's actions constitute proper cause for termination. Allen v. Dade County School Board, 571 So.2d 568 (Fla. 3rd DCA 1990).

    
    

28. The evidence establishes that on Friday, November 5, 1993, the Respondent turned in bus referral slips related to an incident on the bus which had happened two days earlier. The referrals were returned with "see me" written on them by the school's Assistant Principal. During a confusing and potentially emergency situation, the Respondent confronted the Assistant Principal who declined to discuss the matter and directed the Respondent to wait until the following Monday. The Respondent ignored the directive to wait and demanded that the matter be discussed immediately. When the Assistant Principal attempted to walk away from the situation, the Respondent touched the Assistant Principal on the arm at which time the confrontation between the women escalated.

    
    

29. The focus of the Assistant Principal during the brief period of the confrontation was properly to get the children safely loaded into the buses and away from the school. Under the circumstances, her request to delay the conversation until the following work day was reasonable.

    
    

30. The evidence fails to establish any credible reason for the Respondent's inability or refusal to comply with the Assistant Principal's direction to delay the conversation. The incidents reported in the bus referrals occurred two days prior to the referrals being turned in to the school authorities. Had the Respondent complied with the Assistant Principal's directive, no confrontation would have occurred.

    
    

31. Insubordination has been defined as a disobedience of orders, infraction of rules, or a generally disaffected attitude towards authority. It is generally synonymous with contumacious, which indicates persistent, willful or overt defiance of authority and obedience. Muldrow v. Board of Public Instruction of Duval County, 189 So.2d 414 (Fla. 1st DCA 1966). It is separate and distinguishable from the "gross insubordination" as defined in Rule 6B- 4.009, Florida Administrative Code, which constitutes grounds for termination of instructional personnel.

    
    

32. The continued refusal of the Respondent to comply with the directives of the Assistant Principal during the incident demonstrates a disobedience of orders and a persistent, willful and overt defiance of authority. The Respondent's inappropriate behavior during the confrontation constitutes insubordination sufficient to warrant her termination.

    
    

33. The Respondent introduced evidence regarding the allegedly poor relationship between the Assistant Principal and several bus drivers who deliver children to and from the facility. Although the evidence indicates that the

working relationship between the Assistant Principal and some bus drivers is poor, such does not justify or excuse the Respondent's behavior during this incident.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Karen E. Maroon.

DONE and RECOMMENDED this 17th day of February, 1994, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 17th day of February, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2937

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

5. Rejected, as to how the Principal "felt," irrelevant.

8. Rejected as to location of parties during incident, not supported by greater weight of credible and persuasive evidence.

1. Rejected, irrelevant.

2. Rejected as to the extent of the explanation as to the reason the discussion would have to be postponed, irrelevant. It would have been obvious as to the reason.

14-15, 17, 19. Rejected, subordinate.

20-21. Rejected, not supported by greater weight of credible and persuasive evidence.

22. Rejected, irrelevant.

25. Rejected, not supported by greater weight of credible and persuasive evidence.

27. Rejected, subordinate.

28, 33-34. Rejected, unnecessary.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

6-7. Rejected, unnecessary. The referral was addressed on the day it was turned in to the school office. Unusual circumstances at around 3:30 p.m. on that day prevented the appropriate school official from discussing the matter with the Respondent.

1. Rejected, unnecessary.

2. Rejected, as to the alarm not being cause for concern, contrary to the greater weight of credible and persuasive evidence.

11-13. Rejected, restatement of testimony is not appropriate finding of fact.

14. Rejected, subordinate.

15-21. Rejected, restatement of testimony is not appropriate finding of fact, contrary to the greater weight of credible and persuasive evidence.

23-26. Rejected, unnecessary.

1. Rejected, contrary to greater weight of credible and persuasive evidence which fails to establish the precise location of parties during incident.

2. Rejected, irrelevant.

3. Rejected, testimony of other bus drivers is not found to be credible or persuasive except as otherwise set forth herein.

30-31. Rejected, contrary to the greater weight of credible and persuasive evidence.

COPIES FURNISHED:

Bobbie D'Alessandro, Superintendent School Board of Lee County

2055 Central Avenue

Fort Myers, Florida 33901-3988

Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue

Fort Myers, Florida 33901-3988

John M. Hament, Esquire Kunkel & Hament

Suite 785, 1800 Second Street

Sarasota, Florida 34236

Robert J. Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 32902

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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. CASE NO. 93-2937

KAREN E. MAROON,

Respondent.

/

FINAL ORDER

THIS CAUSE came on to be heard before the School Board of Lee County, Florida upon the Respondent, Karen E. Maroon, having requested a formal hearing of the School Board's action of April 13, 1993 to dismiss the Respondent. The School Board, having been fully advised in the premises, and having reviewed the complete record below, including the Hearing Officer's Recommended Order and the transcript of the hearing, and having heard oral argument, it is thereupon ordered, considered and adjudged as follows:

1. The Findings of Fact and the Conclusions of Law in the Recommended Order entered by the Department of Administrative Hearings dated February 17, 1994 are adopted within this agency's Final Order. A copy of the Recommended Order is attached as Exhibit "A" and the pertinent parts are made a part of this Final Order as though the document were set out herein verbatim.

   
   

2. In its judgment and discretion, the School Board has decided to reduce the Recommended Penalty of the Hearing Officer. This decision is based upon a complete review of the record and a finding that Ms. Maroon was a three year employee with no prior reprimands.

   
   

3. The Recommended Penalty of the Hearing Officer is hereby reduced from termination to allow Ms. Maroon to re-enter the system for the 1994-95 school year in a position to be determined by the Superintendent on the condition that she successfully completes a behavior modification program as approved by the Superintendent at no cost to the District. Further, Ms. Maroon will remain on suspension without pay and benefits until she re- enters the system and will not be entitled to any back pay or benefits.

4. The Petitioner hereby withdraws those Exceptions which were filed on March 11, 1994.

   
   

5. This case is hereby dismissed and the Respondent is entitled to those terms and conditions of reinstatement which are set forth herein.

   
   

6. As a condition for the reduction in penalty, the Respondent has agreed on the record to waive any right to appeal this Final Order.

ENTERED in an open meeting of the School Board of Lee County, Florida this 5th day of May, 1994.

THE SCHOOL BOARD OF LEE COUNTY, FLORIDA

By: Margaret Sirianni, Chairman

Docket for Case No: 93-002937

Orders for Case No: 93-002937