vs. ) Case No. 97-0639
Respondent. )
A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, in Sanford, Florida, on May 21, 1997. The following appearances were entered:
For Petitioner: Ned N. Julian, Jr., Esquire
For Respondent: Anthony D. Demma, Esquire
Whether the Respondent’s conduct of December 10, 11, and 12, 1996, on the Rosenwald Exceptional Education Center campus constitutes insubordination, conduct unbecoming a school board employee, and just cause for termination/discipline.
This matter arose when the Respondent was notified by letter, dated December 13, 1996, from the Superintendent that he would recommend to the School Board that Respondent be terminated for insubordination, and other violations of work rules.
Respondent requested an administrative hearing on the Superintendent's recommendation on December 20, 1996. A Petition for Termination was filed on February 7, 1997, and this matter was referred to the Division of Administrative Hearings on February 13, 1997. Discovery ensued and a formal hearing was held on May 21, 1997.
At the hearing, Petitioner called ten witnesses to testify and offered eleven exhibits in evidence. Respondent called four witnesses, testified in his own behalf, and offered two exhibits in evidence. Two exhibits were received as joint exhibits. A transcript was prepared and was filed on July 3, 1997. Following a Motion for Extension of Time to File Proposed Recommended Orders, Petitioner filed its proposals on July 28, 1997, and Respondent filed his proposals on July 24, 1997. Both proposals have been given careful consideration and are adopted where appropriate.
The Respondent, James Byrd, is employed by the Petitioner, Seminole County School Board, as an instructional
assistant at Rosenwald Exceptional Education Center.
The employment relationship between the school board and the Respondent is subject to the terms and conditions of collective bargaining agreement between the school board and the Seminole Educational Clerical Association (SECA), for the period July 1, 1995-June 30, 1998, as amended August 14, 1996.
The applicable collective bargaining agreement does not require progressive discipline as a predicate to termination.
Respondent had been employed by Petitioner since August 25, 1991. There were no incidents of discipline involving Petitioner prior to his arrival at Rosenwald.
Respondent received satisfactory ratings in his performance evaluations during his employment with the Petitioner, including his current supervising teacher, Annette Hill.
On September 30, 1996, Respondent had engaged in a dispute with another employee, LaCeina Walker, in the presence of a student.
Respondent also engaged in inappropriate conduct regarding John Wyatt, a teacher at Rosenwald, relating to the incident regarding Respondent and Walker on September 30, 1996.
At a meeting held by Dr. Michael Kahn (Kahn) with Respondent to discuss the incident of September 30, 1996, the Respondent became quite agitated and aggressive. Respondent accused Kahn of being racially unfair regarding the letter of
reprimand.
Kahn is the administrator in charge of the Rosenwald Exceptional Education Center.
Respondent received a Letter of Concern for conduct relating to the September 30, 1996, incident from Kahn. The Letter contained a directive not to engage in verbal disputes with employees in the presence of students and that he was to make an effort to get along with other staff members.
Walker was also given a similar letter.
On December 10, 1996, Respondent received a two-day suspension for an incident involving Margie Robinson, which was a violation of the September 30, 1996, Letter and directive.
The two-day suspension did not require school board action.
The incident underlying the two-day suspension involved a dispute between Robinson and Respondent concerning a student’s point sheet.
As a part of Rosenwald’s behavior management program, students earn points for certain positive behavior. The points are then used to earn rewards. Robinson thought that the Respondent had given a student points when they had not been earned. Upon meeting with the two employees, Robinson and the Respondent, Kahn concluded that the dispute was the result of a misunderstanding, primarily on the part of Respondent. Kahn resolved the misunderstanding and sent Robinson and Respondent on
their way.
After leaving Kahn’s office, Respondent became verbally abusive of Robinson. Respondent’s verbal confrontation of Robinson was a direct violation of the September 30th directive.
On December 12, 1996, when Kahn attempted to discuss the incident concerning Robinson with Respondent, Respondent came to Kahn’s office. He refused to discuss the matter and then, without permission to leave, exited Kahn’s office and went to his classroom.
After Respondent left Kahn’s office, Kahn followed Respondent to his classroom in an attempt to deliver the Letter of Suspension. Respondent refused to respond to Kahn’s statement, and Kahn then left the letter on Respondent’s desk in front of Respondent. Kahn then left the room.
Respondent has engaged in disrespectful or confrontational conduct with other Rosenwald employees after joining the Rosenwald staff and before December 13, 1996.
Respondent’s conduct on December 11 and 12, 1996, was insubordinate and conduct unbecoming a school board employee.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1) and 120.569, Florida Statutes.
The burden of proof is on the Petitioner to establish
by a preponderance of the evidence that the disciplinary action it proposes is justified. Dileo vs. School Board of Dade County,
569 So. 2d 883 (Fla. 3rd DCA 1990); Allen vs. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990); and McNeill vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996).
The Respondent may be terminated or otherwise disciplined for conduct unbecoming a school board employee or insubordination, provided that just cause is present. Article VII, Section 5, Collective Bargaining Agreement Between The School Board of Seminole Educational Clerical Association, Inc.,
July 1, 1995 - June 30, 1998, as amended August 14, 1996
(Jt. Ex. 1).
Insubordination is a lower level of misconduct than “gross insubordination.” Muldrow vs. Board of Instruction of Duval County, Florida, 189 So. 2d 414 (Fla. 1st DCA 1966).
Insubordination may be shown by a single act of disrespect on the part of a noninstructional employee for the authority of supervisors or managerial employees employed by a school board. Jacker vs. School Board of Dade County, Florida,
426 So. 2d 1149 (Fla. 3rd DCA 1983), Muldrow, supra, and Ford vs. Southeast Atlantic Corporation, 588 So. 2d 1039 (Fla. 1st DCA 1991). Insubordination may be a simple as an act which constitutes a violation of a previously given order to refrain from identified conduct. Johnson vs. School Board of Dade County, Florida, 578 So. 2d 387 (Fla. 3rd DCA 1991).
Conduct unbecoming a public employee constitutes a ground for termination or discipline. Seminole County Board of County Commissioners vs. Long, 422 So. 2d 938 (Fla. 5th DCA 1982).
Conduct unbecoming a public employee is conduct which falls below that level of conduct which a public agency has the right to expect from its employees.
Just cause for discipline is a reason which is rationally and logically related to an employee’s conduct in the performance of the employee’s job duties and which is concerned with inefficiency, delinquency, poor leadership, lack of role modeling or misconduct. State ex rel Hathaway vs. Smith,
35 So. 2d 650 (Fla. 1948).
Just cause for termination/discipline regarding a non- administrative noninstructional employee of the school board is not limited by the exemplar list of offensive conduct set forth in Article VII, Section 5, of the collective bargaining agreement. Dietz vs. Lee County School Board, 647 So. 2d 217 (Fla. 2nd DCA 1994).
Respondent’s prior acts of misconduct towards Wyatt and Walker may be considered in determining the existence of just cause for termination/discipline, C. F. Industries, Inc., vs. Long, 364 So. 2d 864 (Fla. 2nd DCA 1978) and Johnson vs. School Board of Dade County, Florida, supra.
The Respondent’s verbal confrontations with LaCeinta
Walker, Marcie Robinson, and Michael Kahn, his supervisor, were not isolated incidents of poor judgment on Respondent’s part.
They took place in the presence of other school board employees or students, and evidenced a lack of respect for a school administrator. They were not the result of provocation. The verbal confrontations constitute insubordination, conduct unbecoming a school board employee and just cause for discipline, including termination. Suluki vs. Unemployment Appeals Commission, 644 So. 2d 552 (Fla. 5th DCA 1994), Stahl vs. Florida Unemployment Appeals Commission, 502 So. 2d 78 (Fla. 3rd DCA 1987), and Hines vs. Department of Labor And Employment Security,
455 So. 2d 1104 (Fla. 3rd DCA 1984). Compare with Benitez vs. Girlfriday, Inc., 609 So. 2d 665 (Fla. 3rd DCA 1992) (profanity not a ground for denial of unemployment compensation because use was isolated and directed to a supervisor outside of the presence of other persons), and Johnson vs. Florida Unemployment Appeals Commission, 513 So. 2d 1098 (Fla. 3rd DCA 1987) (profanity was not part of a pattern of behavior, statements were made in private and not in the presence of other employees or customers, and was not a personal attack upon the supervisor or an attempt to undermine his authority.)
Respondent’s public conduct of berating LaCeinta Walker and Marcie Robinson and his contumacious treatment of his supervisor, Dr. Michael Kahn, constitutes conduct unbecoming a school board employee.
As Respondent had previously been disciplined and warned not to conduct himself in an inappropriate manner when dealing with employees or students, his actions of December 10, in confronting Marcie Robinson; his disrespect of Michael Kahn during their meeting of December 11; and his contumacious behavior towards Michael Kahn on December 12, 1996, clearly constitute insubordination.
Respondent’s generalized claim of frustration with other staff members and the administration of Rosenwald Exceptional Education Center does not constitute provocation or, at best, provocation sufficient to excuse Respondent’s conduct on December 10 through 12, 1996. See generally Garguilo vs. Florida Unemployment Appeals Commission, 642 So. 2d 784 (Fla. 2nd DCA 1994) (appellant’s act was in response to aggressive behavior of a coworker, although behavior may have justified dismissal, it did not justify denial of unemployment compensation benefits), Anderson vs. Florida Unemployment Appeals Commission, 517 So. 2d 754 (Fla. 2nd DCA 1987) (although appellant’s behavior may have justified dismissal, as appellant was not the initial aggressor, it did not justify denial of unemployment benefits) Lucus vs. Unemployment Appeals Commission, 664 So. 2d 1043 (Fla. 2nd DCA 1995) (action of appellant consisting of a single act of loss of self-control was provoked by coworker’s aggressive acts), and Davis vs. Florida Unemployment Appeals Commission, 472 So. 2d 800 (Fla. 3rd DCA 1984) (terminated employee’s conduct provoked by
fellow employee’s unjustified physical and verbal harassment.)
The Petitioner’s decision to terminate the Respondent is the result of the unacceptable and intense manner in which the Respondent chooses to communicate his disagreement and dissatisfaction with other staff members at Rosenwald Exceptional Education Center and his contumacious treatment of Dr. Michael Kahn, his supervisor.
The September 30, 1996, dispute with LaCeinta Walker was de minimus in its content. Both he and Walker were given reprimands and directed not to repeat the conduct. That should have ended the dispute. However, in December the same conduct with others repeated itself on the part of Respondent. The dispute over point sheets was minor and probably the result of an honest misunderstanding. Kahn dealt with it appropriately. The matter should have ended then. Unfortunately, Respondent sought to confront Marcie Robinson in a hostile manner for the purpose of berating her for taking the matter of their dispute to Kahn. Respondent’s action was a direct violation of the September 30, 1996, reprimand and letter of direction.
When, after having met with Respondent concerning the incident with Robinson, Kahn attempted to deliver his disciplinary decision to Respondent, Respondent “blew him off.” The Respondent chose not to present himself to Kahn’s office when so directed, and chose not to acknowledge delivery of the letter. Although Respondent had a reason for his conduct, he did not
communicate that reason until the time of the hearing.
Basically, the Respondent displayed a pattern of contempt for his fellow employees and his supervisor.
RECOMMENDED that the Respondent’s action on the Rosenwald Exceptional Education Center on December 10, 11, and 12, 1996, constitutes insubordination and conduct unbecoming a school board employee, and that Respondent’s conduct constitutes just cause for termination.
RECOMMENDED this 4th day of September, 1997, at Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1997.
Ned N. Julian, Jr., Esquire Seminole County Public School Educational Support Center
Ronald G. Meyer, Esquire Anthony D. Demma, Esquire Meyer and Brooks
Dr. Paul J. Hagerty, Superintendent Seminole County School Board Educational Support Center
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
