STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

)

Petitioner, )

)

vs. ) CASE NO. 95-6148

)

SUSAN E. BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida on April 17, 1996, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County Schools

301 4th Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942

For Respondent: Lydia S. Castle, Esquire

641 First Street South

St. Petersburg, Florida 33701 STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Respondent's employment with the Pinellas County Schools should be suspended with pay and then terminated because of the matters alleged in the Superintendent's letter to her dated November 20, 1995.

PRELIMINARY STATEMENT

By letter dated November 20, 1995, Dr. J. Howard Hinesley, Superintendent of the Pinellas County Schools, advised Respondent, Susan E. Brown, that she was, effective that date, suspended with pay until the School Board meeting scheduled for December 13, 1995, at which time he would recommend she be dismissed because on November 10, 1995, she allegedly entered the office at her son's elementary school, used profanity toward the office staff, went to her child's classroom contrary to the direction of the office staff, used profanity there toward the students, threatened and battered the classroom teacher, and thereafter used profanity toward other school personnel, in violation of written School Board policy. Respondent thereafter, through counsel, requested a formal hearing on the allegations and proposed action, and this hearing ensued.

At the hearing, Petitioner presented the testimony of Michelle Robinson, Respondent's son's teacher at Lynch Elementary School and the teacher allegedly threatened and battered; Jeanine M. McLaughlin, another teacher at Lynch; Ashley Marie Jones, a student in Ms. Robinson's 3rd grade class at Lynch and a classmate of Respondent's son; Caroline Lemos, a data preparation clerk at Lynch and part of the office staff; James M. Barker, administrator in the Office of Professional Standards at the Pinellas County School Administrative Center; Sandra Mills, an intervention specialist at Lynch; and Kathleen May Proper, principal at Lynch Elementary School. Petitioner also introduced Petitioner's Exhibits 1 and 2.

Respondent testified in her own behalf and offered the testimony of E.R.C., J.A.W., M.K.S., P.C.N., J.D.L., M.J.M., and K.M.B., all students in Ms.

Robinson's classroom and classmates of Respondent's son; and Terry L. Morris, plant operator at the 16th Street Middle School and Respondent's duty supervisor. Respondent also introduced Respondent's Exhibit A.

A transcript of the proceedings was furnished. Subsequent to the receipt thereof, both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, (Board), was responsible for operating the public schools in Pinellas County, Florida. Respondent, Susan E. Brown, was employed as a plant operator at the 16th Street Middle School in St. Petersburg, a school operated by the Board. She had a son enrolled in Lynch Elementary School, operated by the Board.

   
   

2. On or about November 9, 1995, Respondent's son, V.B., was sent home at the end of the regular school day with a referral slip, signed by Ms. Proper, the principal, which reflected that the child had used inappropriate language to a female student in the class that day. The language was, "Suck my dick." The alleged incident was discussed in a class meeting and the matter was referred to the principal as the result of a recommendation by the class. The referral slip was not enclosed in an envelope. The child's teacher had had prior conferences with Respondent regarding her child's academics and behavior.

   
   

3. Mrs. Brown was very much upset by this referral, not only from the standpoint that such language was attributed to her son, but also because the referral slip was not enclosed in an envelope. As a result, early the next day, November 10, 1995, she arrived in the office at Lynch Elementary where she was met by Ms. Lemos, the data preparation clerk, at the front counter. Respondent loudly demanded to speak with the principal. When informed by Ms. Lemos that the principal was in an awards ceremony at the time but would be back shortly and would see her upon her return, Respondent nonetheless insisted on seeing the principal immediately. She also demanded to speak with the teacher involved. She was upset about the referral slip a teacher has written regarding her son. When informed that the offending teacher was in class and could not be interrupted at the time, Respondent said, "I'll interrupt her," and left the office, heading for the classroom. Ms. Lemos immediately used the intercom system to forewarn the teacher and also immediately called the intervention specialist.

   
   

4. Ms. Robinson, the teacher in question, heard Ms. Lemos' warning over the intercom system and within a few seconds, Respondent burst into the

   classroom, waived a sheet of paper, later determined to be the offending referral sheet, in her face and said, "I don't want this shit again", along with other obscene words including the word, "fucking."

   
   

5. Ms. Robinson asked Respondent to leave the classroom, but she refused. Respondent asked for "that ass-hole, Jonathan." Jonathan is another child in the class who, Respondent believed, is the one who made the offensive comment attributed to her son. Respondent's actions were upsetting the children. Some were screaming and others were crying. Ms. Robinson claims that even Respondent's son called for her to stop, but she did not. Respondent stated to the teacher, "If I have to come back, I'll kick someone's ass." Ms. Robinson continued to try to get the Respondent to leave the room and managed to get herself and Respondent out of the room and into the hall. At this point, Ms. Robinson tried to go back into the classroom and close the door with Respondent out in the hall, but Respondent forestalled this, slapping Ms. Robinson's hands away from the door. At one point in the altercation, apparently in the classroom or nearby but in sight of some of the children, Respondent pushed Ms. Robinson away from the door, using both hands to the teacher's upper arms or torso.

   
   

6. As a result of the Respondent's actions, Ms. Robinson was emotionally and mentally affected. She was afraid for her life at the time of the incident because the Respondent appeared very angry and was physical with her. The teacher's professional and family life has been affected by this assault. She was afraid to go back into the classroom and missed several days work because of it. She did not seek psychological counselling or a physician and she has now returned to the classroom, but this incident has affected her teaching and she still has trouble sleeping at times. Based on what happened, Ms. Robinson would not want to work in the same school with the Respondent.

   
   

7. The altercation involving the Respondent and Ms. Robinson was heard by another third grade teacher, Ms. McLaughlin, who had come to the third grade pod of four classrooms to get another student. As she walked toward the pod she heard someone using profanity, including the words, "Shit. How dare you write this?" After going into her own classroom to get the student she wanted, Ms. McLaughlin came out to see Ms. Robinson pinned with her back to the open door facing away from the classroom, and a parent, identified as the Respondent, up close to her face. She saw Respondent, who was very loud, push Ms. Robinson with both hands Ms. McLaughlin did not hear Ms. Robinson say anything but noted she was trying to close the classroom door. As Ms. McLaughlin watched, the intervention specialist, Ms. Mills came up and took control.

   
   

8. Ms. Mills went to the room as a result of the request by Ms. Lemos. As she approached the pod, she heard loud yelling and saw Ms. Robinson with her back to the door and Respondent yelling at her, facing her. Ms. Mills yelled at the Respondent directing her to return to the office. At this point, Respondent turned toward her and yelled that some "shit had been written on [her] baby's paper." She wanted to talk with the principal and, according to Ms. Mills, threatened to "mess them all up." As the two women were walking toward the office, Respondent also allegedly called the staff "fucking crackers", and when advised by Ms. Mills to keep her voice down because children were present, said she didn't care. Ms. Mills claims some children were present as they went toward the office.

   
   

9. As Ms. Mills and Respondent arrived at the school office the Respondent was still yelling. Ms. Mills directed her to leave the campus but she refused and continued to demand to see the principal. At this point, Ms. Mills advised

   the office staff to call the police. Upon the arrival of the principal, Ms. Mills left the office and returned to the classroom where she found the children frightened and upset.

   
   

10. When the principal, Ms. Proper, arrived at the front office she told the Respondent to go into her private office because she was yelling so loud. Ms. Proper could hear Respondent from down the hall. When Proper got the Respondent into her office, she asked what was wrong and in response, Respondent waived the referral slip. Ms. Proper took it and looked at it and this had the effect of calming the Respondent down somewhat. However, when Ms. Proper explained why the referral had been written, Respondent exploded again and Ms. Proper told her to leave the campus. Before she could do so, the police arrived.

    
    

11. According to Ms. Proper, Respondent's actions upset the awards ceremony, a teacher was made upset and required a substitute, the office staff was upset, and she had to spend several hours with the police. In addition, at least one parent has called the school and expressed concern about the incident. This was the parent to whose daughter the obscene comment was allegedly made by V.B., Respondent's son.

    
    

12. At the time of the incident neither Ms. Proper nor anyone else involved knew that the Respondent worked for the school system. Respondent did not identify herself as a school employee nor was she wearing any kind of uniform which identified her as a Board employee.

    
    

13. All of the children who testified at the hearing, whether for the Board or for the Respondent, indicated they had, to some degree or another seen and heard the incident. There is no doubt that Respondent physically battered Ms. Robinson at the doorway to the classroom. Whether she intended to injure her is doubtful, however. Respondent clearly used profanity in front of the children, but it is equally clear she did not address the profanity toward them. By the same token, it does not appear that Respondent threatened the children in any way. Though she denies having done so, it is found she did refer to one child, Jonathan, as an ass-hole, but she did not direct that comment to him directly.

    
    

14. Respondent has worked as a plant operator, (janitor), for the school system for four years, starting at the 16th Street Middle School only shortly before the incident in issue. Her hours are from four in the afternoon to midnight. She has one child, V.B., who attended Lynch Elementary at the time in issue.

    
    

15. Respondent recalls that on November 9, 1995, V.B. came home from school with a referral which was not in an envelope nor was it folded over.

    When she saw it she was upset over the way it was written. She felt that her son's alleged language could have been more discreetly put and she also felt the slip should have been put in an envelope for transmittal.

    
    

16. The referral did not require her to come to school, but she went anyway to see why the slip had been written and transmitted as it was. She also wanted to know why she wasn't called about it. Consequently, on the morning of November 11, 1995 she went to the school office and spoke with the lady at the front desk. Respondent admits to using the word "shit" to describe the referral but denies she cursed anyone in the office. When she asked to speak with the principal she was told that she was in a ceremony and to come back later. Nonetheless, Respondent insisted on speaking with the principal but cannot

    recall what she said next. She remembers having the impression that the office staff did not want to see the referral, so she decided to go to her son's classroom to speak with the teacher about it.

    
    

17. Respondent claims the office staff did not tell her not to go to the classroom. When she got there she asked the teacher why she sent the referral home without it being in a sealed envelope. When the teacher merely shrugged in reply, Respondent repeated the question and admits to again using the word, "shit". With that the teacher asked her to leave the classroom and she claims she started to do so with the teacher behind her. Respondent admits to using the word "shit" a third time but denies calling the teacher a bitch, and most specifically, she denies having cursed at any of the students. It has been found that she did not curse at the student.

    
    

18. As she and the teacher were departing the classroom, Respondent indicates she again asked the teacher, in a voice louder than normal, why she had sent the referral home as she did. In doing so, she admits to holding the referral up in front of the teacher's face and claims that the teacher then pushed her hand out of the way. The teacher allegedly pulled on the door to close it and told Respondent to leave. Respondent claims she then turned away and pushed the door but denies having ever come into contact with the teacher. The overwhelming weight of the evidence indicates, however, that she pushed the teacher at least once, and it is so found.

    
    

19. Respondent also admits to having used the word "shit" in front of the second lady who came to the room in a query about the referral. It was this individual, Ms. Mills, with whom Respondent walked back to the office. However, she denies having threatened her or stating that she or anyone else would be "messed up", and further denies having referred to Ms. Mills or anyone else as a "fucking cracker." She also denies having used the word "shit" with the principal, though it is clear she did. She claims, however, that the principal neither asked her to come into the private office nor gave her a reason for the referral. This is irrelevant, however.

    
    

20. Respondent admits she was on her way back to the classroom from the office a second time but before she could do so, the police arrived and she talked with them. Respondent did not think she was frightening the children by her actions, but it is clear she was. She did not intend to do so. All she wanted was an answer to her question. She admits she was angry when she went to the office and when she went to the classroom. She admits to entering the classroom without knocking or without an invitation because the door was open even though the class was in session. However, she justifies her conduct as a result of having been upset.

    
    

21. Respondent's work supervisor has never heard Respondent use profanity to her co-workers, to teachers or to students while on the job or otherwise. He has never received a complaint about her behavior from either students or teachers. He has heard other employees use profanity from time to time, but never in a direct confrontation with each other or in front of students or teachers.

    
    

22. Mr. Morris has never disciplined any of his workers for using curse words but would do so for inappropriate conduct. He is aware of the Board's sexual harassment rule, but other than this is unaware of any Board rule which prohibits the use of curse words. Based on his limited experience with the Respondent, he has no concern over her working in an environment where she might come into contact with middle school students or teachers. When he hired her he

    knew of no record of prior discipline regarding the Respondent and apparently there is none. He agrees it is important not to use profanity around students and that students should feel safe in the school setting. In that regard, if he were to know that an employee did what Respondent is alleged to have done, he would feel that person should not be employed as a plant operator.

    
    

23. James M. Barker, an administrator with the Board's Office of Professional Standards, investigated the allegations against the Respondent and concluded that they were accurate and constituted various violations of Board Policy 6Gx52-5.31 which outlines in writing offenses and penalty ranges for employee misconduct. He interviewed the teachers involved but not the students, and when he interviewed the Respondent, she denied all of the allegations. She admitted she was upset by the comments contained on the referral slip but denied either touching a teacher or using threatening language. Notwithstanding, Mr. Barker's investigation indicated to him that Respondent had improperly harassed a student, used inappropriate or disparaging remarks to students, improperly interacted with colleagues, and committed misconduct in office, all in violation of Subsections (l), (n), (p) and (v) of the policy.

    
    

24. The aforementioned sections list not only the conduct which is considered actionable, but also suggests a penalty range for the imposition of discipline when misconduct is found to exist. In each case, the suggested penalty ranges from either a caution or a reprimand to dismissal. Section 3 of the same policy outlines aggravating or mitigating factors which may be considered when determining the appropriate penalty. In this case, Mr. Barker recommended dismissal of the respondent because he could find no factors in mitigation but did find aggravation in the severity of the offenses committed, the involvement of students, the potential for damage to the public and the actual emotional damage imposed upon Ms. Robinson and the students. Even though the Board's policy and general practice is to impose discipline progressively, here he recommended dismissal immediately because of Respondent's comments before students and her aggression toward Ms. Robinson.

    
    

25. Mr. Barker is aware that Respondent has been employed by the Board for only a relatively short time and that she was not employed at the school where her misconduct occurred. He is also aware that Ms. Robinson did not seek medical of psychological help as a result of her contact with Respondent but does not know if any member of the public was involved. He considers Ms. Robinson and the staff at Lynch to be coworkers of the Respondent even though they are not employed at the same school and they did not know Respondent was a Board employee at the time of the incident. This is an overly broad interpretation.

    
    

26. Mr. Barker's recommendation was based on his determination that the Board does not consider it appropriate for any employee of a public or private school to act as Respondent did in this instance. Teachers should not have to fear assault in class and students should not have to be exposed to conduct like that alleged here.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

28. The Board seeks to discipline the Respondent for several alleged violations of its policy 6Gx52-5.31, which defines as actionable misconduct the

    use by a Board employee of disparaging remarks to or about students or the exposure of students to unnecessary embarrassment or disparagement, (1)(n); inappropriate interactions with colleagues, (1)(p); and misconduct or misconduct in office, (1)(v).

    
    

29. The burden is on the Board to establish Respondent's misconduct by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3DCA 1990; Accord v. School Board of Dade County, 571 So.2d 568 (Fla. 3DCA 1990).

    
    

30. Under the provisions of Section 230.33(7)(e), Florida Statutes, the superintendent of the school district has the authority to suspend or recommend for dismissal any School Board employee whose conduct violates the terms of the statute. By the same token, the School Board has the authority to suspend or dismiss the employee so recommended consistent with the provisions of Section 230.23(5)(f), Florida Statutes, and, pursuant to Section 230.22(1), Florida Statutes, the authority to determine policies and programs considered by it to be necessary for the operation of the school system.

    
    

31. Consistent with this authority, the Board promulgated policy 6Gx52-

    5.31 which proscribes certain misconduct by school employees and outlines a system of progressive discipline for use in dealing with employees. Though the Board's policy calls for the application of a system of progressive discipline, the facts and circumstances of a particular situation, including matters in aggravation or mitigation of the offense, may justify a deviation from the normal progressive application.

    
    

32. The evidence of record clearly indicates that the Respondent, who was at the time a Board employee but not of Lynch Elementary School, though not on duty at the time of the incident, came to Lynch where her son was enrolled seeking a confrontation with her son's teacher and the school principal. When she found the principal was otherwise occupied at the time, contrary to the instructions of the office staff, she went to her son's classroom and engaged in an altercation with her son's teacher. This altercation included her use of profanity within the hearing of the young students, creating a disruption, assaulting and battering the teacher in sight of the students, and making disparaging remarks about, if not to, a particular student. All of this was emotionally traumatic to the students and their teacher.

    
    

33. In addition to the above, Respondent was loud and abusive in the school office, and to the intervention specialist, Ms. Mills, who came to take her away from the classroom. It matters not whether Respondent actually made a credible threat to injure Ms. Mills or any other staff member. She clearly physically assaulted Ms. Robinson and demonstrated the potential and anger sufficient to convince other personnel that they faced the potential of physical harm from the Respondent. In addition, she clearly comported herself in a manner inconsistent with a Board employee under any circumstances, and especially in a school setting, even though the school was not the one at which she was employed.

    
    

34. Respondent claims that because Respondent's actions were outside the scope of her employment, was not directed at "colleagues or co-workers" and was not violative of the Board's disciplinary guidelines, she is not guilty of any misconduct and is entitled top re-instatement and full back pay. This argument is disingenuous and clearly without merit. The language used by the respondent here clearly justifies official sanction, especially in the case of a Board employee who should be even more sensitive to the special needs and standards of

employee behavior. Though Respondent did not work at Lynch, and though the employees at that school were in one sense not her colleagues or co-workers, they were co-employees of the same Board and were entitled to be treated with due deference and civility in the performance of their duties. In any event, Respondent's behavior regarding the use of profanity in the circumstances here involved, and the physical assault on a teacher, clearly constitute actionable misconduct, which, in this case, merits deviation from the Board's progressive discipline policy and mandates immediate suspension and termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a Final Order affirming the temporary suspension of Respondent with pay and her termination from employment with the Board as of December 14, 1995.

DONE and ENTERED this 29th day of May, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 29th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-6148

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. & 2. Accepted and incorporated herein.

3. - 14. Accepted and incorporated herein.

1. Accepted and incorporated herein, except for the allegation that the Respondent pointed her finger at the students.

2. - 33. Accepted and incorporated herein.

34. & 35. Accepted but not probative of any fact in issue.

Respondent's Proposed Findings of Fact.

1. - 6. Accepted and incorporated herein.

7. & 8. Accepted

1. Rejected as contra to the weight of the evidence.

2. Rejected as contra to the weight of the evidence.

COPIES FURNISHED:

Keith B. Martin, Esquire Pinellas County Schools

301 4th Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942

Lydia S. Castle, Esquire

Gulfcoast Legal Services, Incorporated 641 First Street South

St. Petersburg, Florida 33701

Dr. J. Howard Hinesley Superintendent

Pinellas County Schools

301 4th Street Southwest Post Office Box 2942 Largo, Florida 34649-2942

Frank T. Brogan Commissioner of Education The Capitol

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 95-006148

Orders for Case No: 95-006148