vs. ) Case No. 04-2060
Respondent. )
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Marathon, Florida, on August 18, 2004.
For Petitioner: Scott E. Siverson
Scott C. Black
Vernis & Bowling of the Florida Keys, P.A.
The issue is whether Petitioner may terminate Respondent's employment contract due to repeated acts of harassment, gross insubordination, and violations of Petitioner's policies.
By Administrative Complaint dated March 15, 2004, Petitioner alleged that it employed Respondent as an aid at the Stanley Switlik School. The Administrative Complaint alleges that Respondent became enraged and began yelling at her supervisors at a meeting on October 8, 2003, to address her recent acts of aggression and harassment toward coworkers. On January 6, 2004, Petitioner allegedly learned that an employee of Grace Jones School had requested a restraining order against Respondent to stop her threatening and aggressive behavior toward the employee. On February 13, 2004, Petitioner allegedly learned that Respondent was displaying aggressive behavior toward a parent and had improperly disclosed confidential student information. On March 8, 2004, Petitioner allegedly learned that a parent had requested a restraining order against Respondent.
The Administrative Complaint alleges that Respondent has engaged in repeated acts of harassment, insubordination, and violations of School Board policy during her employment with Respondent. The Administrative Complaint alleges that Respondent has perpetrated at least five documented cases of harassment of coworkers, and she has received at least three written reprimands and multiple verbal warnings concerning her improper pattern of conduct. The Administrative Complaint
alleges that Respondent has refused to sign and acknowledge Petitioner's anti-harassment policy, and she has received unsatisfactory evaluations for the 2002 and 2003 school years.
At the hearing, Petitioner called seven witnesses and offered into evidence 20 exhibits: Petitioner Exhibits 1-18 and 20-21. Respondent called three witnesses and offered into evidence two exhibits: Respondent Exhibits 1-2. All exhibits were admitted.
The court reporter filed the transcript on September 20, 2004. Petitioner filed a proposed recommended order on October 8, 2004.
Until her last day of work on March 15, 2004, Respondent had worked for over 13 years at Stanley Switlik Elementary School (Switlik) in Marathon. Switlik is a public school. For most of her career with Petitioner, Respondent worked as an aid in the exceptional student education (ESE) prekindergarten program. During the 2003-04 school year, Respondent worked as a 1:1 aid to a student in a varying exceptionalities class. At all material times, Respondent was classified as noncertified instructional staff.
For at least the past couple of years, Respondent was dissatisfied by much of what took place around her at work and in the local education community. In the past two years,
Respondent has filed complaints with three federal agencies (Department of Education, Department of Health and Human Services, and Equal Employment Opportunity Commission), two state agencies (Department of Education and Department of Children and Family Services), and one local agency (Petitioner). The 13 subjects of these complaints include two principals of Switlik, two superintendents of Monroe County Public Schools, various teachers and teacher aids, and a relative of her husband. The record discloses no basis for finding any merit whatsoever in any of these complaints.
In June 2002, Respondent walked into a classroom at the Grace Jones Day Care Center, which is a not-for-profit school in Respondent’s neighborhood, and entered a class with sleeping preschool children. Respondent approached the new director of Grace Jones and confronted her about the school's curriculum. The bewildered director spoke to Respondent for a few moments before realizing that Respondent had no children at the school.
In the ensuing weeks, Respondent continued to challenge the director about the school’s curriculum, warning her that she needed to change the curriculum or Respondent would shut down the school. One time, Respondent warned the director that “you better watch your white ass.” Seeing the director smoking a cigarette on school grounds during breaks, Respondent began
videotaping the director from the street to document what Respondent viewed as illegal behavior.
The purpose of Respondent’s actions is unclear, but does not seem to have been the betterment of the educational program at Grace Jones. When children in the custody of a relative of her husband attended Grace Jones, Respondent never volunteered to help at the school.
However unclear the purpose of Respondent’s actions, their effect was to frighten the director, the teachers, and the students and disrupt the educational process at the school. The director eventually obtained a judicial order prohibiting Respondent from trespassing onto the Grace Jones grounds.
Respondent repeatedly involved herself with the education of the two children who were in the custody of a relative of Respondent's husband. When one of the children was later attending Switlik, while Respondent was employed at the school, Respondent telephoned the child’s guardian and informed her that the child had been misbehaving in school. When the guardian called the principal, the principal stated that the child had not been misbehaving. Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion directly to the child’s guardian.
Later, in January 2004, Respondent informed the guardian and the guardian’s sister, who is the biological mother
of the children, that Switlik was failing one of the children. Again, Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion. Despite receiving a warning from the principal not to disclose confidential student information, Respondent continued to try to obtain educational information about these children, even though she had no right to such information.
Frustrated that the guardian would not remove one or both of the children from Switlik, Respondent threatened to call the Department of Children and Family Services and inform them that the guardian was engaged in illegal drug use. Although she may never have followed through on this threat, she did call the Department of Children and Family Services and inform them that the children’s biological mother was residing with them and the guardian, evidently in violation of some sort of prohibition against this living arrangement. The record permits no findings as to whether the guardian was engaged in illegal drug use or the biological mother was residing with her children and the guardian, but the record permits the finding that, in both cases, the intention of Respondent in threatening to call or calling the authorities was not to correct an intolerable situation, but was to coerce the guardian to accede to Respondent's demands.
While employed at Switlik, Respondent had numerous confrontations with numerous employees, including superiors. Two of the more prominent confrontations involved Respondent’s confrontation with a school bus driver, who occupied a managerial role at Switlik as to transportation, and two aids,
who worked in a Head Start prekindergarten classroom at Switlik. These incidents occurred during the 2002-03 school year.
The problem with the school bus driver began in 2002.
Escorting one or more children to or from the school buses, as was her responsibility, Respondent entered a bus loaded with children and began directing them to sit down. When the bus driver, who was on the bus, told Respondent to leave the bus, Respondent angrily accused the bus driver of failing to discharge her duty to protect the safety of the children. After receiving complaints from the driver about Respondent and from Respondent about the driver and the students standing in the bus, the principal met with Respondent and told her not to interfere with the bus driver and her supervision of the students already on the bus.
Despite the warning, Respondent later engaged in a nearly identical confrontation during the 2002-03 school year. When the principal sided again with the bus driver, Respondent demanded a meeting with the superintendent to discuss her problems with the bus driver and, now, the principal. Ignored
by the superintendent, Respondent contacted a school board member and asked for a meeting.
Obtaining no satisfaction from the school board member, Respondent contacted the United States Department of Education, Civil Rights Office, and Florida Department of Education with her complaints about the bus driver and the refusal of Petitioner's representatives to resolve the situation.
The problem with the Head Start aids initially involved their choice of classroom attire. They wore shorts, which Respondent considered to be cut too short. Possibly arising out of Respondent's frustration at not being allowed to wear a head scarf at school, Respondent complained to the principal that the two women were allowed to wear shorts. A picture of the shorts revealed that they were not suggestive or inappropriate in length or style. To the contrary, shorts permitted the aids to perform the physical activity imposed upon them in working with young children.
After Respondent complained about the aids' shorts, the aids began to lock the classroom door to prevent Respondent from taking a short-cut through the room when students were present. Respondent complained about this, but, again, the principal sided with the aids and directed Respondent to stop
cutting through the occupied classroom--a directive that Respondent repeatedly ignored.
Twice bested by the aids, Respondent pressed her complaints about them to higher authorities. Respondent informed the Monroe County director of Head Start of the problem. When the county director referred Respondent back to the principal, Respondent threatened to contact the Southeast Director of Head Start in Atlanta and government representatives in Washington.
On October 8, 2003, the principal and other of Respondent's employees, including the Human Relations Director, participated in a meeting requested by Respondent to discuss her concerns about events that had taken place at Switlik over a period of time. At some point, the principal warned Respondent about her disruption of the school environment and her confrontational behavior. The principal warned that Respondent's unprofessional behavior would lead to termination. Respondent became belligerent and loudly denounced the Human Relations Director as a liar. Two days later, Respondent refused to sign a memorandum outlining what had taken place at the meeting.
The above incidents are largely drawn from Respondent's testimony. However, there were numerous other confrontations, such as with an office manager who asked that
Respondent wait a moment before the woman could get her paycheck or repeated abuse of school email to hector Petitioner's employees. There were also numerous other examples of insubordination, such as Respondent's refusal to sign a statement acknowledging Petitioner's anti-harassment policy and her refusal to sign her evaluation at the end of the 2002-03 school year, which warned that her noncompliance with Petitioner's policies was disrupting school operations.
Dissatisfied with the resolution of all of these matters, Respondent also filed complaints with the Department of Health and Human Services and Equal Employment Opportunity Commission about at least some of them.
Two principals over several years have tried patiently to counsel Respondent regarding her strident, uncooperative behavior. At meetings, Respondent routinely took the offensive, yelling and denouncing the participants by, among other things, claiming that the current principal was not doing her job. An endless pattern of complaints about problems perceived by no one but Respondent preceded complaints about never-commenced or incorrectly resolved investigations. The disruption upon the educational process was evident and substantial.
Respondent has not been chastened by less severe job actions than termination. When Petitioner suspended Respondent for three days from April 30 to May 2, 2003, Respondent's
response, upon her return to work, was to file a complaint about the principal and, after a month of inaction on her complaint, to email the superintendent and demand to know the status of his investigation of her complaint. Failing to obtain a satisfactory response from the superintendent, Respondent submitted complaints about the principal and superintendent to the Florida Department of Education. Finally, on August 14, 2003, Respondent emailed the School Board members and asked for a meeting about this problem.
By undated letter in February or March 2004, Petitioner's superintendent advised Respondent that she was suspended with pay until the School Board meeting of April 1, 2004, at which he would recommend termination. The letter states that Respondent has violated Sections 1012.27(5) and 1012.33, Florida Statutes, The Code of Ethics for Education Professionals, and Petitioner's policies 6.37, 6.38, 2.70, 3.40, and 5.70.
By letter dated March 22, 2004, Petitioner's superintendent advised that he would recommend at the April 1 School Board meeting that it convert Respondent's suspension with pay to a suspension without pay, pending final action on his recommendation to terminate Respondent's employment.
Petitioner's policy 6.37 provides that Petitioner's superintendent may suspend an employee until the next meeting of
the School Board. The policy provides a hearing under Chapter 120, Florida Statutes, to any employee who has a property interest in his or her job.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2004).
Section 1012.01(2), Florida Statutes, provides that educational paraprofessionals, such as Respondent, are "instructional personnel."
Section 1012.33(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(4) authorize the termination of an employment contract for "gross insubordination," which is defined by the rule as: "as a constant or continuing intentional refusal to obey a direct order, reasonable in nation, and given by and with proper authority."
Petitioner has the burden of proving the grounds for termination by a preponderance of the evidence. McNeil v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996).
Petitioner has proved that Respondent has repeatedly refused to obey direct orders, essentially to allow the school system to function as an educational resource, free from her harassment of other employees trying to do their jobs.
Respondent continually chose to defy these directives, and Petitioner consequently terminated her employment.
RECOMMENDED that Petitioner enter a final order terminating Respondent's employment.
DONE AND ENTERED this 25th day of October, 2004, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2004.
Daniel J. Woodring, General Counsel Department of Education
Scott E. Siverson Vernis & Bowling of the
Florida Keys, P.A.
Scott C. Black
Vernis & Bowling of the Florida Keys, P.A.
15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
