vs.
Respondent.
) Case No. 00-3438
Pursuant to notice, a formal hearing was held in this case on November 2 and 3, 2000, in Fort Myers, Florida, before Carolyn S. Holified, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Victor M. Arias, Esquire
For Respondent: Robert J. Coleman, Esquire
Whether Respondent, Juanita Ascencio, engaged in the alleged misconduct and, if so, whether that misconduct
constitutes just cause for her termination as an educational paraprofessional with the Lee County School Board.
By letter dated May 16, 2000, Bruce Harter, Superintendent, School District of Lee County, notified Respondent, Juanita Ascencio, that he was suspending her with pay and benefits from her position as an educational paraprofessional, effective that day. According to the letter, the suspension with pay would continue, pending the outcome of a district investigation of allegations made against Respondent. Upon completion of the investigation, by letter dated July 20, 2000, Superintendent Harter notified Respondent that he would be recommending to the Lee County School Board that she be suspended without pay and benefits pending termination from her position as an educational paraprofessional.
On August 4, 2000, Superintendent Harter filed a Petition for Suspension Without Pay and Benefits Pending Termination of Employment (Petition), and on August 8, 2000, presented the Petition to the Lee County School Board. The Petition alleged that Respondent had various job performance deficiencies and had received poor evaluations. Moreover, the Petition alleged that in a May 15, 2000, incident, Respondent yelled or screamed at the Gateway Magnet School principal and assistant principal,
using profane language as she did so, and threw notebooks and a chair at the assistant principal.
Respondent timely challenged the suspension and the proposed termination and requested a formal hearing. On August 14, 2000, the matter was referred to the Division of Administrative Hearings, which noticed and conducted the formal hearing.
Prior to the final hearing, the parties submitted a Joint Prehearing Statement that set forth a number of stipulated facts that required no proof at hearing. At hearing, Petitioner presented the testimony of eight witnesses, including Respondent who was called as a rebuttal witness. Specified pages of Petitioner's Exhibits 1, and Petitioner's Exhibits 2, 4-9, 12- 14, and 17 were received into evidence. Respondent testified on her own behalf and presented the testimony of seven witnesses.
Respondent had 17 exhibits received into evidence.
A Transcript of the proceeding was filed on November 20, 2000. At the conclusion of the hearing, the time for filing proposed recommended orders was set for ten days after Transcript was filed. Prior to that date, Respondent filed an unopposed Motion for Extension of Time to file Proposed Recommended Orders. The motion was granted, and the time for filing proposed recommended orders was extended to December 29, 2000. Subsequently, on December 22, 2000, Respondent filed an
unopposed Second Motion for Extension of Time to File Proposed Recommended Orders (Second Motion). The Second Motion was granted and the time for filing proposed recommended orders was extended to January 5, 2001. Both parties timely filed proposed recommended orders under the extended time frame.
The Proposed Recommended Orders have been considered in preparation of the Recommended Order.
5. During the 1995-1996, 1996-1997, and 1997-1998 school year, Respondent consistently received annual performance assessments evaluating her level of performance as an education paraprofessional as "effective." This was the highest rating possible.
At all times relevant to the proceeding, Nancy Adams was the principal of Gateway Magnet School. Ms. Adams became the principal at Gateway at the beginning of the 1998-1999 school year, after serving as the assistant principal there the previous three school years.
Renee Highbaugh was the assistant principal at Gateway Magnet School for the 1998-99 and 1999-2000 school years. As assistant principal, Ms. Highbaugh was responsible for supervising all education paraprofessionals at Gateway. In carrying out this responsibility, Ms. Highbaugh was Respondent's immediate supervisor for the 1998-99 school year and until
May 16, 2000, when Respondent was suspended from her position as an education paraprofessional.
In the 1998-1999 and 1999-2000 school years, when
Ms. Highbaugh became Respondent's supervisor, she increased the time Respondent was assigned to cafeteria duty from thirty minutes to approximately one hour.
During the 1998-99 school year, Ms. Highbaugh had concerns about Respondent's job performance. Ms. Highbaugh raised and discussed these job performance issues with Respondent in meetings held at the school. Ms. Adams, the principal, and Pat Houseman, the union representative, usually attended these meetings.
Despite Ms. Highbaugh's concern about Respondent’s job performance throughout the 1998-1999 school year, she took no formal disciplinary actions against Respondent that school year.
Ms. Highbaugh completed Respondent's performance assessment evaluation for the 1998-1999 school year on or about April 1, 1999, and later discussed the assessment with Respondent. The performance assessment listed eighteen areas of responsibility. Of these areas, Ms. Highbaugh noted that one of the designated areas was "not targeted for assessment." With regard to the other seventeen areas, Ms. Highbaugh marked two as "effective," five as "inconsistently practiced," and ten as "unacceptable levels of performance." The performance assessment also included some positive comments to reflect Respondent's compliance in one area.
At or near the end of the 1998-1999 school year,
Ms. Highbaugh contacted Gail Williams, the Director of Personnel for the School Board, discussed Respondent's performance assessment, and asked what was the next step that should be taken regarding Respondent.
At Ms. William's direction, Respondent was issued an employment contract for the 1999-2000 school year.
Ms. Highbaugh observed little or no improvement in Respondent's job performance during the 1999-2000 school year. Consequently, throughout the school year, Ms. Highbaugh met with Respondent to discuss specific job performance issues. After these meetings, if Ms. Highbaugh later determined that Respondent did not improve or the problems resurfaced, she issued verbal warnings to Respondent. If those areas still did not improve, Ms. Highbaugh issued letters of reprimand to Respondent.
Prior to April 2000, Ms. Highbaugh issued three written reprimands to Respondent. Respondent grieved at least one of these reprimands and was successful in having it withdrawn.
Ms. Highbaugh completed Respondent's performance assessment for the 1999-2000 school year on or about March 30, 2000. The performance assessment listed eighteen areas in which the employee was to be rated. Of the eighteen areas,
Ms. Highbaugh marked two areas as "not targeted for assessment," one area as "effective," ten areas as "inconsistently practiced," and five areas as "unacceptable level of performance."
On March 31, 2000, Respondent declined to go over the performance assessment with Ms. Adams, the principal, and
Ms. Highbaugh, opting instead to review the assessment when a union representative could be present.
On April 6, 2000, Ms. Highbaugh prepared a written reprimand to Respondent for "failure to complete production of materials in a timely fashion."
On April 7, 2000, Ms. Highbaugh prepared a written reprimand to Respondent "for failure to communicate with appropriate people and in the appropriate manner."
Both the April 6, 2000, and April 7, 2000, written reprimands indicated that any continuation of the action referred to in the reprimands "may result in further disciplinary action up to and including your dismissal." The reprimands also advised Respondent that she could respond to the letters in writing within five days and that copies of her responses would be placed in her personnel file.
Respondent and the union representative met with Ms. Highbaugh on April 12, 2000, to review Respondent's 1999-2000 performance appraisal. At some point during the
meeting, Ms. Highbaugh gave Respondent the April 6, 2000, and April 7, 2000, written reprimands. This was the first time Respondent had seen these written reprimands.
At the April 12, 2000, meeting or soon thereafter, Ms. Highbaugh informed Respondent that she would not be recommended for reappointment for the 2000-2001 school year.
Respondent believed that Ms. Highbaugh and Ms. Adams were treating her unfairly with regard to her work performance and told them that the performance assessment was dishonest and unfair.
Respondent wrote separate responses to the 1999-2000 performance appraisal, the April 6, 2000, written reprimand, and the April 7, 2000, written reprimand. In each response, Respondent stated that the accusations or statements made in the appraisal and written reprimands were false and that she disagreed with those statements.
Respondent filed a grievance on or about May 11, 2000, regarding the decision to not reappoint her for the 2000-2001 school year. This grievance was pending as of May 16, 2000, and had not been resolved as of the date of this proceeding.
On May 15, 2000, Ms. Highbaugh and Ms. Adams went to the production room to discuss performance issues with Respondent.
After entering the production room, Ms. Adams or Ms. Highbaugh shut the door and also closed the door of the small storage room inside the production room. Ms. Highbaugh then talked to Respondent about leaving cafeteria duty early
that day. Ms. Highbaugh also told Respondent that she had been leaving campus early, misrepresenting her departure time on the school log, and inaccurately recording information in a notebook Respondent maintained to document her activities at work.
Respondent believed that Ms. Highbaugh's tone during the May 15, 2000, meeting was accusatory and disrespectful. Furthermore, Respondent testified that when she attempted to explain the reason she left the cafeteria two minutes early, Ms. Highbaugh accused her of lying.
During the course of the May 15, 2000, meeting, as Ms. Highbaugh talked, Respondent became angry and agitated. Respondent jumped up from her chair, put her face close to
Ms. Highbaugh's face and yelled at her. In fact, Respondent was so close that her hair brushed Ms. Highbaugh's face.
Respondent was yelling and screaming at Ms. Highbaugh, saying that she was tired of being accused of things she had not done and of Ms. Highbaugh's being on her back all year. While Respondent was yelling and screaming, it was sometimes difficult to understand everything that she was saying. However, during
this episode, Respondent used profane language such as "shit," "damn," "ass," and "hell."
At one point during the May 15, 2000, incident, Respondent stepped back from Ms. Highbaugh, grabbed two or three vinyl notebooks from the table and threw them at Ms. Highbaugh. One of the notebooks hit Ms. Highbaugh on the arm and the other one or two fell on the floor.
Ms. Adams attempted to calm Respondent down. However, Ms. Adams was unsuccessful in doing so, and Respondent continued yelling and screaming at Ms. Highbaugh.
At the time of the May 15, 2000, incident, Heather Gosnell, a parent volunteer, and Gay Wilkensen, a clerk/typist at Gateway, were working in the storage room
adjacent to and inside the production room. When Ms. Gosnell and Ms. Wilkenson completed their work, they opened the door to the storage room, exited the storage room, and walked through the production room.
As they were exiting, Ms. Wilkensen and Ms. Gosnell heard Respondent yelling at Ms. Highbaugh and using vulgar and profane language as she did so.
As she exited the storage room, Ms. Gosnell not only heard Respondent yelling at Ms. Highbaugh, but she also observed that Respondent was about three feet from Ms. Highbaugh, making
a shaking motion with her fists as she screamed at Ms. Highbaugh.
As Ms. Wilkenson exited the storage room and went through the production room, she observed that Respondent appeared angry as she screamed and yelled at Ms. Highbaugh.
Respondent continued screaming at Ms. Highbaugh, picked up a chair, adjusted it in her hand, and threw it toward Ms. Highbaugh. Ms. Highbaugh stepped back, and the chair hit the corner of a table or desk and fell on the floor.
From the front office, Barbara Burnside, a data entry clerk at Gateway Magnet School, heard screaming and yelling from the production room. She then went to the area outside of the production room. As Ms. Burnside approached the area, she continued to hear loud screaming and yelling, and also heard Respondent say that she was "tired of all this shit going on in this building."
While sitting in the interoffice area at her desk, Deanne Whittamore, Ms. Adams' secretary, heard loud screaming coming from the production room. She could hear the screaming even though there were two walls separating her desk from the hallway that led to the back area where the production room was located. Upon hearing the screaming and loud noises in the back, Ms. Whittamore went to the area outside the production room. As Ms. Whittamore approached the area, she observed a
child in the clinic holding her hands over her ears, in an apparent attempt to shut out the loud noise coming from the production room. The school clinic is located right outside the production room.
Ms. Adams continued to try to calm Respondent down and then directed her to get her purse, leave the school, and go home. After Respondent refused to leave, Ms. Adams again told her to go home and warned her that she would call the police if Respondent did not leave the school. Respondent still refused to leave.
Respondent testified that she refused to leave because she was afraid that she would be accused of abandoning her job and wanted to contact her union representative.
Instead of leaving the school as she was directed to do, Respondent went to the cafeteria and attempted to call the union office for a representative. Meantime, the school resource officer, who had been contacted by a school official shortly after the incident, arrived on the school campus and spoke with Ms. Adams and Ms. Highbaugh. He directed them, along with others, to write statements as to what they witnessed.
After or near the time Ms. Adams, Ms. Highbaugh, and others gave statements regarding the incident, Respondent returned to the production room and was arrested.
Respondent was arrested for felony battery on a school official. However, in the final court disposition of the matter, Respondent pled no contest to a charge of misdemeanor battery and adjudication of guilt was withheld.
The May 15, 2000, incident, occurred during the regular school day and while students were still at school.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Subsection 120.57(1), Florida Statutes.
The Superintendent of the Lee County School District has the authority to suspend and recommend the dismissal of School Board employees as prescribed in Subsection 230.33(7)(e), Florida Statutes.
Subsection 230.23(5)(f), Florida Statutes, authorizes the Lee County School Board to suspend, dismiss, or return to annual contract instructional staff or other school employees.
Respondent is an education support employee within the meaning of Subsection 231.3605(1)(a), Florida Statutes. Accordingly, disciplinary actions taken against employees in this category must comport with the requirements of that provision.
Subsection 231.3605(2), Florida Statutes, provides that upon successful completion of the probationary period, an
educational support employee's status continues from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement or in district school board rules if no collective bargaining agreement exists.
In this case, there is a collective bargaining agreement (Agreement or Collective Bargaining Agreement) between the Lee County School Board and the Support Personnel of Lee County. Pursuant Article 7, Section 7.094 of the Agreement, "any discipline during the contract year, that constitutes a reprimand, suspension, demotion or termination shall be for just cause."
"Just cause" includes, but is not limited to "misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." Subsection 231.36(1)(a), Florida Statutes.
The Petition filed in this case charged Respondent with misconduct in office as a result of the incident that occurred on May 15, 2000. Moreover, in the Joint Pre-Hearing Stipulation, the parties agreed that this was the charge against Respondent.
Specifically, the Petition alleges that during a meeting at Gateway Magnet School with the principal and assistant principal, Respondent did the following: (1) threw two
or three vinyl 3-ring binders at the assistant principal, hitting her on the arm; (2) picked up a chair and threw it at the assistant principal; and (3) shouted or screamed at the assistant principal and used profane language while doing so.
By virtue of the Petition and the Joint Pre-Hearing Stipulation, the charge in this case is that Respondent committed misconduct in office as a result of the incident that occurred on May 15, 2000. Therefore, the factual allegations in the Petition relating to Respondent's failure to meet job performance standards are irrelevant in this proceeding and need not be addressed or proven.
In order to prevail, the School Board must prove the charges against Respondent by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990); and Dileo v. School Board of Dade County, 569 So. 2d (Fla. 3rd DCA 1990). The Lee County School Board has met its burden of proof in this case.
The preponderance of evidence established that on May 15, 2000, during a meeting with the principal and assistant principal, Respondent, indeed, became angry and, while in this emotional state, (1) threw two or three vinyl notebooks at the assistant principal, hitting her on the arm; threw a chair at the assistant principal; and yelled and screamed at the assistant principal, using profane language while doing so.
Respondent's actions during the May 15, 2000, meeting constitute misconduct in office. This misconduct is just cause for the School Board to terminate Respondent from her position as an education paraprofessional.
RECOMMENDED that the Lee County School Board enter a final order dismissing Respondent, Juanita Ascencio, from her position as an educational paraprofessional.
CAROLYN S. HOLIFIELD
Dr. Bruce Harter Superintendent
Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue
Robert J. Coleman, Esquire Coleman & Coleman
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.
