STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2940

)

BRENDA SIMMONS, )

)

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 6, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: John M. Hament, Esquire

Kunkel & Hament

Suite 785, 1800 Second Street

Sarasota, Florida 34236

For Respondent: Willie Green, Representative

1917 French Street

Fort Myers, Florida 33916 STATEMENT OF THE ISSUE

Whether cause exists for the Petitioner's proposed termination of the Respondent's employment for alleged conduct occurring on Cypress Lake High School premises during and after a basketball game on January 29, 1993.

PRELIMINARY STATEMENT

Respondent Brenda Simmons was employed as a teacher's aide at the Cypress Lake High School in Fort Myers, Florida.

By letter dated March 18, 1993, the Respondent was notified that the Petitioner had determined that cause existed "to suspend you with pay from your position as a teacher's aide effective immediately." The letter stated that the Petitioner's decision "was based on your misconduct at the varsity basketball game on January 29, 1993, at Cypress Lake High School when you used profanity directed toward the Mariner High School cheerleaders and were insubordinate when questioned by your assistant principal regarding the incident.

By Petition for Termination of Employment dated April 9, 1993, the Respondent was notified of the specific misconduct allegations of which she was charged. The Respondent requested a formal administrative hearing. The matter was referred to the Division of Administrative Hearings for further proceedings.

At hearing, the Petitioner presented the testimony of nine witnesses and had exhibits numbered 1-2 admitted into evidence. The Respondent presented the testimony of three witnesses and testified on her own behalf. A prehearing stipulation filed by the parties was admitted into evidence as a Hearing Officer's exhibit.

A transcript of the hearing was filed on November 12, 1993. Subsequent to several extensions of time granted for filing proposed recommended orders, the Petitioner filed a proposed order. The Respondent filed a written closing argument. 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 5, 1991, and at all times material to this case, Respondent Brenda Simmons was employed under an annual contract as a teacher's aide, a classified employee position, by the Lee County School Board.

   
   

2. On January 29, 1993, the Cypress Lake High School women's basketball team played the Mariner High School team at the Cypress Lake gym. The Respondent was the coach of the Cypress Lake junior varsity team which played the Mariner team prior to the varsity team game.

   
   

3. During the junior varsity game, the Respondent sat with the players while coaching them. During the varsity game, the Respondent sat with her sisters next to the Mariner cheerleaders and close to the playing area.

   
   

4. The section within which the Respondent sat during the varsity game is an area where black students generally sit to watch the game. The Respondent is black. The Mariner cheerleaders who testified at the hearing are white.

   
   

5. The Respondent and her sisters apparently were annoyed that the cheerleaders would occasionally block their sight lines during cheers. During the game, the Respondent made hand gestures ridiculing the cheerleaders movements. At one point during the game, the Respondent called one cheerleader a "fucking slut." She also called one particular cheerleader a "fat ass."

   
   

6. The Mariner cheerleaders were disturbed by the Respondent's behavior and as the game was ending, notified their adviser of the situation. The adviser contacted her Cypress Lakes counterpart who identified the Respondent and informed the assistant principal of Cypress Lakes.

   
   

7. In the lobby area of the gym, the Cypress Lakes assistant principal approached the Respondent and inquired as to the situation. The Respondent became loud and angry, at which point the assistant principal suggested that the discussion should be continued on the next school day. The Respondent stated that she did not "have to take this shit" and left the gym.

   
   

8. The Respondent then went into the parking lot of the gym and confronted the Mariner cheerleaders as they were being escorted to their transportation. The Respondent threatened the cheerleaders, stating she would "kick your motherfucking asses."

9. The assistant principal, notified of the parking lot incident, went to the scene in an attempt to calm the situation. The Respondent continued to threaten the Mariner cheerleaders and to respond to the assistant principal in an angry and hostile manner.

   
   

10. The Superintendent of Schools directed that the matter be investigated. Subsequent to his inquiry, a meeting was conducted on February 5, 1993, at which time the Respondent was provided with an opportunity to respond to the allegations. The Respondent denied that she had acted inappropriately towards the Mariner cheerleaders or that she had been insubordinate to the assistant principal.

    
    

11. The Respondent claims that the complaining witnesses in this case are unable to distinguish her from her sister and that her sister was the person who acted inappropriately.

    
    

12. The evidence, which includes eyewitness identification from persons who worked with the Respondent on a daily basis fails to support her claim. Further, the Respondent's sister denied that she used such language as was alleged.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. 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).

    
    

15. The evidence establishes that on January 29, 1993, the Respondent, employed as a teacher's aide and basketball coach at Cypress Lake High School, directed profane language towards Mariner High School cheerleaders.

    
    

16. The Respondent's use of profanity directed towards students from a rival high school constitutes proper cause for dismissal.

    
    

17. The evidence establishes that on January 29, 1993, the Respondent was insubordinate when questioned by the Cypress Lakes assistant principal regarding the incident.

    
    

18. 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).

    
    

19. The anger and hostility exhibited by the Respondent towards the assistant principal during the incident demonstrates a disobedience of orders and a generally disaffected attitude towards authority. The Respondent's inappropriate behavior during the confrontation constitutes insubordination sufficient to warrant her termination.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Brenda Simmons.

DONE and RECOMMENDED this 23rd day of February, 1994, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 23rd day of February, 1994

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2940

The Respondent filed a written closing argument which included no proposed findings of fact. The following constitute rulings on proposed findings of facts submitted by the Petitioner

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

5-6. Rejected, not supported by the greater weight of credible and persuasive evidence.

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

11-12. Rejected, subordinate.

14-19, 24, 31. Rejected, unnecessary.

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

Willie Green Willie J. Battle 1971 French Street

Fort Myers, Florida 33916

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. 93-2940

)

BRENDA SIMMONS, )

)

Respondent. )

)

FINAL ORDER

THIS CAUSE came on to be heard before the School Board of Lee County, Florida upon the Respondent, Brenda Simmons, having requested a formal hearing of the School Board's action of April 13, 1993 to terminate the Respondent from employment. 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, it is thereupon ordered, considered and adjudged as follows:

1. The Recommended Order entered by the Department of Administrative Hearings dated February 23, 1994 is adopted as this agency's Final Order. A

   copy of the recommended Order is attached hereto and made a part of this Final Order as though the document were set out herein verbatim.

   
   

2. The Respondent is hereby terminated from employment with the School Board of Lee County, Florida and this case is dismissed.

   
   

3. This Final Order may be appealed to the District Court of Appeal of Florida, Second District, Post Office Box 327, 1005 East Memorial Boulevard, Lakeland, Florida 33802, telephone (813)499-2290. The appeal must be filed within thirty (30) days of the date of rendition of this Order by filing a notice of appeal with the School Board and the second copy with the District Court of Appeal.

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: 93-002940

Orders for Case No: 93-002940