STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD,

Petitioner,

vs.

MIRELLA HERNANDEZ,

Respondent.

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) Case No. 06-1039

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 17-19, 2007, in Sanford, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Serita D. Beamon, Esquire

Seminole County School Board Legal Service Department

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Respondent: Pamela Hubbell Miller, Esquire

Chamblee, Johnson & Haynes, P.A.

510 Vonderburg Drive, Suite 200 Brandon, Florida 33511

STATEMENT OF THE ISSUE

The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment or to otherwise

discipline her based upon the conduct alleged in the Petition

for Termination.

PRELIMINARY STATEMENT

By letter to Respondent, dated December 8, 2005, and follow-up letter to Respondent's counsel, dated February 28, 2006, William H. Vogel, the Superintendent of the Seminole County School Board ("School Board"), informed Respondent that he was recommending that the School Board suspend Respondent without pay and terminate Respondent's employment for "statements and/or demonstrated conduct" that constituted conduct unbecoming a School Board employee and a violation of School Board Policies 6.06 and 9.63. By letter, dated March 9, 2006, counsel for Respondent timely requested a formal hearing on that recommendation.

On March 22, 2006, the School Board filed a Petition for Termination (the "Petition") with the Division of Administrative Hearings ("DOAH"). The Petition requested that the Division assign an administrative law judge to conduct the hearing requested by Respondent. The hearing was initially scheduled for July 11, 2006. The School Board's uncontested motion for continuance was granted, and the hearing was rescheduled for October 11-12, 2006. The hearing convened on October 11, 2006, but insuperable discovery disputes necessitated a further continuance of the hearing. The matter was rescheduled for

November 15-17, 2006, and then continued to January 17-19, 2007, pursuant to an agreed motion for continuance. At the close of the hearing on January 19, 2007, the parties agreed to hold open the record so that the testimony of a witness who was ill could be taken telephonically by Respondent. The date for the telephonic hearing was set for April 10, 2007, but Respondent ultimately decided that the testimony of this witness was not necessary. On May 21, 2007, the parties filed a Joint Request to Close the Record, which was done by Order, dated May 23, 2007.

At the hearing, the School Board presented the testimony of Jennifer McKenzie, Raymond Williams, Kathy Dent, Kenneth Lewis, Jean Rodriguez, Ivette Sanchez, Claudia Robles, Carmen "Millie" Maldonado, and John Reichert. The School Board's Exhibits 1, 5 through 15, 18, 20, 24, 25, 27, and 39 were admitted into evidence. Respondent testified in her own behalf and presented the testimony of Carmen Padilla, Jose Galindo, Paul Sanchez, John Reichert, and Brenadette Hardy-Blake. Respondent's Exhibits 9, 21, 22, and 37 were admitted into evidence. Joint Exhibit 1, the collective bargaining agreement between the School Board and the Seminole County School Bus Drivers' Association, Inc. (the "Collective Bargaining Agreement"), was also admitted into evidence.1

Etienne Van Hissenhoven provided translation services throughout the hearing, pursuant to the translator's oath administered by the undersigned.

The two-volume Transcript of the hearing was filed with DOAH on May 30, 2007. The parties requested and were given 40 days in which to file their proposed recommended orders.

Pursuant to the parties' requests, three additional extensions of the deadline were granted. The parties timely filed their Proposed Recommended Orders on August 14, 2007. The Proposed Recommended Orders were given due consideration by the undersigned in preparing this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, and the parties' stipulations, the following findings are made:

1. The School Board is the governing body of the local school district in and for Seminole County, Florida.

2. Respondent is employed within the School Board's transportation department as a school bus driver. She has worked for the School Board for approximately seven years, and has not been subjected to discipline prior to the incidents leading to this case.

3. At all times relevant to this proceeding, the employment relationship between Respondent and the School Board

   was governed by the collective bargaining agreement between the School Board and the Seminole County School Bus Drivers' Association, Inc., dated July 1, 1997, through June 30, 2006.

4. Respondent is Hispanic. She was born in New York City, but was raised in Puerto Rico, speaking Spanish. She served as a field medic in the U.S. Army from 1980 to 1987. Respondent understands English, but is more comfortable communicating in Spanish.

5. Kenneth Lewis has been the director of the School Board's Transportation Department since November 2003. Mr. Lewis is black.

6. The Transportation Department consists of approximately 640 employees and 460 buses. Mr. Lewis is the supervising administrator and has three supervisors who report directly to him: the supervisor of routing, the supervisor of fleet services, and the supervisor of operations. Under the supervisor of operations are six area managers, each of whom is responsible for the day-to-day supervision of bus drivers and bus monitors.

7. Raymond Williams and Kathy Dent are two of the area managers in the transportation department. Mr. Williams is black. Ms. Dent is white, and is a recent breast cancer survivor. Both Mr. Williams and Ms. Dent are monolingual speakers of English.

8. Mr. Williams and Ms. Dent were Respondent's immediate supervisors during the 2005-2006 school year.

9. Jennifer McKenzie has been a bus monitor for the School Board for about six years. A bus monitor's job is to team with the driver to assist children with disabilities on the bus.

   Ms. McKenzie is Hispanic. She speaks Spanish and English, but is more comfortable conversing in Spanish. Ms. McKenzie worked as a monitor on Respondent's bus from 2003 through September 2005.

10. Early in the 2005-2006 school year, Respondent's bus was consistently running behind schedule. Ms. Dent met with Respondent about the situation. Respondent told Ms. Dent that Ms. McKenzie was arriving late to work, causing the bus to run late.

11. Ms. Dent then spoke with Ms. McKenzie, who denied that she had been late coming to work. Ms. McKenzie later reported this conversation to Respondent, who in turn denied blaming the problem on Ms. McKenzie.

12. For the next week, Respondent's bus continued to run late. Ms. Dent went onto Respondent's bus prior to the afternoon run to discuss the situation with Respondent and

    Ms. McKenzie. Ms. Dent stated that she was getting conflicting stories about the problem, and she needed to clear up matters. Ms. McKenzie stated that she had never caused the bus to be

    late. Respondent denied ever blaming Ms. McKenzie. Ms. Dent stated that Respondent had blamed Ms. McKenzie several times, most recently that morning when she came to Ms. Dent's office to state that Ms. McKenzie was the cause of the bus being late.

    Respondent continued to deny blaming Ms. McKenzie.

    
    

13. Ms. Dent concluded the meeting by emphasizing to

    
    

    Ms. McKenzie that it was very important that she and Respondent work as a team, and that she was to be on board the bus at her scheduled time in the future. Ms. McKenzie again stated that she was not the cause of the problem, but said she would be there on time. Ms. Dent got off the bus. Both Ms. McKenzie and Ms. Dent testified that Ms. Dent did not raise her voice during this meeting or call Respondent a liar or make any other disparaging comment toward Respondent.

14. After Ms. Dent left the bus, Respondent and

    
    

    Ms. McKenzie continued the conversation. Respondent told

    
    

    Ms. McKenzie that this proved her prior statements that Ms. Dent tells lies. Respondent pointed out that she had denied blaming Ms. McKenzie in front of Ms. Dent, and claimed that Ms. Dent never liked Hispanic people. Respondent stated that when

    Ms. Dent underwent chemotherapy, it had been applied to her brain rather than her breast and turned her brain to shit, which was why everything she spoke was shit.

15. On September 7, 2005, it began to rain just as Respondent's bus was starting its route. Ms. McKenzie had difficulty closing the roof hatches, and Respondent stopped the bus to help her. Respondent then proceeded to drive the bus into a subdivision under construction, despite Ms. McKenzie's warning that there was no exit, and took several minutes driving through the narrow roads before she could find a way out.

16. The dispatcher, Ronnie Dubose, called Respondent to ask why she was late. Respondent told Mr. Dubose it was because her monitor could not close the roof hatches. This angered

    Ms. McKenzie because the closing of the hatches had taken much less time than the trek through the subdivision. Ms. McKenzie asked Respondent why she blamed the monitor. Respondent denied having blamed Ms. McKenzie.

17. Ms. McKenzie told Respondent that she heard her tell Mr. Dubose that it was Ms. McKenzie's fault the bus was late. Respondent insisted that Ms. McKenzie had misunderstood, and Ms. McKenzie was just as insistent that she had understood very well. In an effort to change the subject, Respondent began to denigrate Mr. Dubose, stating that "this stupid nigger" didn't even know what he was asking.

18. Ms. McKenzie was upset about the entire situation, and especially about having been blamed once again for the bus running late. Immediately after the bus route was completed,

    Ms. McKenzie went looking for Ms. Dent to explain what had happened, but could not find her. She spoke to Mr. Williams about the situation, and asked him to explain her version of events to Ms. Dent.

19. The next day, September 8, 2005, Ms. McKenzie was able to meet with Ms. Dent and Mr. Williams after the morning bus run was completed. She explained that the main reason the bus was late on the previous day was Respondent's getting lost in the subdivision construction. Ms. McKenzie indicated to Ms. Dent that there were other issues bothering her regarding Respondent. Ms. McKenzie told Ms. Dent that Respondent had called Mr. Dubose a "nigger," and that Respondent had said not to trust Ms. Dent and that Ms. Dent's chemotherapy had turned her brain to shit.

20. Ms. McKenzie stated that this was not the first time she had heard Respondent call a black co-worker a "nigger." About a week earlier, Respondent had approached Mr. Williams to ask for more time to complete her route, and Mr. Williams declined to do so before checking his route sheet. When Respondent returned to the bus, she called Mr. Williams a "stupid nigger" in the presence of Ms. McKenzie.

21. Ms. McKenzie told Ms. Dent and Mr. Williams that Respondent had referred to Euletha Byrd-Campbell, a black dispatcher, as a "nigger." Respondent also called Mr. Lewis a "stupid nigger" after he refused to allow Respondent to post a

    flyer about a Hispanic Christmas party for transportation personnel. Ms. McKenzie stated that "nigger" was Respondent's common term for black people, and that she called white people "rednecks."

22. Mr. Williams and Ms. Dent convened a meeting with Ms. McKenzie and Respondent on September 9, 2005. The meeting

    was conducted in English. At this meeting, Respondent admitted to making the alleged remarks about Ms. Dent's chemotherapy.

    When Mr. Williams asked if she had ever referred to a fellow employee as a "nigger," Respondent initially denied using that term. Then she stated that she had used the term in reference to Mr. Williams, but only in repeating what another bus driver, Claudia Robles, had said about him. According to Respondent, Ms. Robles became upset and called Mr. Williams a "nigger" when she learned that Mr. Williams had used a gift card she had given him for Christmas to buy pizza at the mall.

23. During the meeting, Respondent gave no indication that she was unaware of the English meaning and usage of the word "nigger."

24. At the conclusion of the meeting, Mr. Williams directed Ms. McKenzie and Respondent to submit written statements summarizing their versions of the facts.

    Ms. McKenzie submitted her statement on September 13, 2005. Respondent never submitted a written statement.

25. Later on September 9, 2005, Mr. Williams and Ms. Dent met with Claudia Robles. Ms. Robles denied being angry with Mr. Williams about the gift card and denied ever calling him a "nigger." At the request of Mr. Williams, Ms. Robles submitted a written statement on September 14, 2005.

26. At some point during this initial investigation, Ms. Dent learned from another Hispanic bus driver, Jean

    Rodriguez, that Respondent had made statements about Ms. Dent's condition on a separate occasion from that described by

    Ms. McKenzie. In the transportation department's compound, there are picnic tables at which the employees sit during the work day. Ms. Rodriguez sometimes sat at the tables with Respondent, and heard Respondent claim to have told Ms. Dent "that the cancer she had on her breast went to her head and it turned like shit." Ms. Rodriguez told Respondent she was wrong and walked away from the table, while Respondent laughed.2

27. Mr. Williams and Ms. Dent advised Julie Murphy, the supervisor of operations in the transportation department, of the matters discussed at the meetings of September 8 and 9, 2005. Ms. Murphy passed the information along to Mr. Lewis, the director of the transportation department.

28. After learning the details of the allegations,

    
    

    Mr. Lewis decided to conduct an investigation of the matter. He spoke to John Reichert, the School Board's director of human

    resources and professional standards, and to Brenadette Hardy- Blake, the School Board's equity coordinator, to inform them of his intention to conduct an investigation. Mr. Reichert and Ms. Hardy-Blake agreed that Mr. Lewis should investigate.3

29. Ms. Dent and Mr. Williams each provided Mr. Lewis with a written statement summarizing the results of the interviews conducted on September 8 and 9, 2005.

30. Mr. Lewis set up a series of interviews, commencing with the complainants, Ms. Dent and Mr. Williams. At the time of these interviews, Mr. Lewis had in hand the written statements filed by all the witnesses, including those of

    Ms. Dent and Mr. Williams.

    
    

31. Mr. Lewis first interviewed Ms. Dent. He noted that she was very upset about Respondent's statements. Ms. Dent stated her intention to file a formal complaint against Respondent. At the hearing, Ms. Dent testified that Respondent's actions interfered with Ms. Dent's ability to act as Respondent's supervisor, because it was clear that Respondent had no respect for her. Ms. Dent felt personally violated by Respondent's comments about her cancer. Further, Ms. Dent believed that Respondent had undercut her authority with the other employees, particularly the black employees, who would not look at the white supervisors with the same respect knowing that Respondent was using the term "nigger" with impunity.

32. Mr. Lewis next interviewed Mr. Williams. The two men discussed Mr. Williams' conduct of the earlier meetings.

    Mr. Williams stated that he wanted to pursue a formal complaint against Respondent. Mr. Williams did not believe he could continue to supervise Respondent knowing how she felt about him. He believed that Respondent's actions created a hostile work environment and fostered an environment of disrespect for his authority. Finally, Mr. Williams told Mr. Lewis that he could not be confident as to Respondent's treatment of children of color riding on her bus.

33. On September 21, 2005, Mr. Lewis interviewed Respondent.4 At the outset of the interview, Mr. Lewis explained that Respondent had been accused of referring to Mr. Williams as a "nigger" in conversations with other transportation department employees, of making derogatory references to Ms. Dent's chemotherapy, and of telling the other employees not to trust Ms. Dent.

34. Respondent denied calling Mr. Williams a "nigger." She stated that the word was not a part of her vocabulary, and denied even knowing the meaning of the word.

35. Respondent admitted making comments about Ms. Dent, but told Mr. Lewis that she had only said that Ms. Dent's chemo had gone to her brain.

36. Mr. Lewis asked Respondent if she could name anyone to corroborate her version of events. At first she said she could not, but thought more about it and gave Mr. Lewis the names of Ivette Sanchez and Millie Maldonado, two fellow bus drivers.

37. Mr. Lewis interviewed the two bus drivers referenced by Respondent. Ivette Sanchez recalled Respondent telling her not to trust Ms. Dent, but was not sure whether she had heard Respondent make the comments about chemotherapy turning

    Ms. Dent's brain to shit. Ms. Sanchez was certain she had not heard Respondent refer to anyone as a "nigger." Mr. Lewis did not ask Ms. Sanchez to submit a written statement.

38. Carmen "Millie" Maldonado told Mr. Lewis that she did not recall Respondent making the comments about Ms. Dent's chemotherapy, but that she might have heard Respondent make them at the picnic tables. Ms. Maldonado was similarly hazy regarding Respondent's use of the word "nigger." She might have heard Respondent say the word, but Respondent never said it directly to Ms. Maldonado. Mr. Lewis did not ask Ms. Maldonado to submit a written statement.

39. At the hearing, Ms. Maldonado clarified that the only time she could recall hearing Respondent use the term "nigger" was in describing the controversy and investigation that is the subject of this case. Ms. Maldonado never heard Respondent refer to another person as a "nigger" or a "redneck."

40. On September 22, 2005, Mr. Lewis interviewed

    
    

    Ms. McKenzie, questioning her about the items included in her written statement, which included Ms. McKenzie's version of Respondent's statements about Ms. Dent's chemotherapy and Respondent's references to Mr. Williams as a "nigger."

    Ms. McKenzie confirmed to Mr. Lewis that she had heard Respondent make the comments about Ms. Dent's chemotherapy turning her brain to shit and had heard Respondent refer to Mr. Williams, Mr. Dubose, and Mr. Lewis5 as "niggers" in conversations with her.

41. Mr. Lewis asked Ms. McKenzie if she could have misheard Respondent using the Spanish term "negro" when she thought Respondent said "nigger." Ms. McKenzie stated that she knew the difference between the two words. She and Respondent spoke to each other mostly in Spanish, and there is no Spanish word for "nigger." Ms. McKenzie was positive that "nigger" was the word used by Respondent.

42. Also on September 22, 2005, Mr. Lewis interviewed

    
    

    Ms. Robles, the bus driver whom Respondent claimed to have been quoting when she used the word "nigger" in relation to

    Mr. Williams. Ms. Robles denied ever calling Mr. Williams a "nigger," or even becoming angry over Mr. Williams' use of the gift card to buy pizza. She also told Mr. Lewis that she had

    heard Respondent refer to Mr. Williams and other black employees as "niggers."

43. At the hearing, Ms. Robles testified that, after the Latin Christmas party in 2004, Respondent complained to her that the disc jockey had played nothing but "nigger music."

    Ms. Robles also testified that she heard Respondent say, "What does that nigger think he is, he's new," after Mr. Lewis refused her request to post the Latin Christmas party flyer. Ms. Robles testified that it was simply part of Respondent's vocabulary to call black people "niggers."

44. Throughout the investigation, Mr. Lewis kept

    
    

    Mr. Reichert and Ms. Hardy-Blake apprised of his findings. At the conclusion of his investigation, Mr. Lewis was convinced that Respondent had made the offensive statements of which she stood accused.

45. Mr. Lewis wrote a memorandum summarizing his investigation and concluding as follows:

    In summary, based upon the input and/or statements that were received from various persons who had knowledge of the incidents under investigation, it is determined that the driver, Ms. Mirella Hernandez, did:

    
    

    • Refer to Mr. Ray Williams as nigger, violating District policy creating a hostile environment.

      
      

    • Use the term nigger while referring to Ms. Euletha Byrd-Campbell, violating

      District policy creating a hostile environment.

      
      

    • Use the term nigger while referring to Mr. Ronnie Dubose, violating District policy creating a hostile environment.

      
      

    • Made the statement as described by

      Ms. Jennifer McKenzie, while referring to Ms. Kathy Dent, violating District policy creating a hostile environment.

      
      

    • Tell other employees not to trust their Administrator violating rules of ethics, creating a hostile environment.

      
      

      It should also be noted that Ms. Hernandez has previously received less than satisfactory rating on previous assessments related to her ability to maintain a professional relationship and attitude toward colleagues and subordinates.

      
      

46. Mr. Lewis submitted his report and copies of all written statements to Mr. Reichert, Ms. Hardy-Blake, Ms. Dent, Mr. Williams, and Respondent. Ms. Dent and Mr. Williams met with Ms. Hardy-Blake, and submitted witness affidavits for her file.

47. After the report was submitted, Mr. Lewis and

    
    

    Mr. Reichert had a lengthy meeting with Deputy Superintendent George Kosmac. At the conclusion of the discussion, Mr. Kosmac concurred with Mr. Lewis' recommendation that Respondent's employment with the School Board should be terminated.

48. Mr. Lewis drafted a letter to Respondent, dated October 7, 2005, which was hand-delivered to Respondent on

    October 10, 2005, along with Mr. Lewis' report and all of the witness statements collected during the investigation. The letter stated, in relevant part:

    Ms. Julie Murphy, Supervisor of Operations, reported to me that you had made disparaging and racist comments to other transportation employees concerning Area Managers Kathy Dent and Ray Williams, and other personnel, within the transportation community. It was also stated that you were heard telling employees not to listen to Kathy Dent, circumventing her ability to carry out her duties as an Area Manager.

    
    

    I spoke to you on Wednesday, September 21, 2005, inquiring about the allegations lodged against you. You admitted saying to other employees in reference to Ms. Dent, "the chemo went straight to her head," but denied saying, as alleged by others that, "Kathy's chemo, instead of being to her breast, they applied it to her brain and that is why her brain was burnt and the only thing left was shit in her brain and that is why she only speaks shit." You also denied ever referring to Ray Williams, Euletha Byrd- Campbell, Ronnie Dubose and Kenneth Lewis6 as "niggers," as alleged. You also denied telling other employees not to listen to

    Ms. Dent.

    
    

    In conversations with Area Managers, Kathy Dent and Ray Williams, they confirmed that you did in fact openly admit to the allegations lodge [sic] against you and went on to state that you made the admissions without remorse. They also said that you admitted, in the presence of Ms. Jennifer McKenzie, to the allegations lodged against you. In conversation with Ms. Jennifer McKenzie, Ms. Claudia Robles, and Mr. Jose Romero on September 21st, 22nd, and

    October 4th, they all confirmed that they heard you, at some point in time, make one

    or all of the statements alleged, in reference to the aforementioned parties.

    
    

    As a result of the facts found during our inquiry, it is determined that you knowingly made disparaging statements to other employees in reference to Kathy Dent, Ray Williams, Euletha Byrd-Campbell, Ronnie Dubose and Kenneth Lewis. Your actions constitute conduct that is unbecoming of an employee of the School Board of Seminole County, Florida, and further represents a violation of School Board policies 6.06—- Employee Nondiscrimination and 9.63-— Civility and Conduct of Parents, Other Visitors to Schools and School District Facilities, and District Employees.

    
    

    Therefore, I am recommending to the Superintendent that you be suspended from your duties, and further that your employment with the Seminole County Public Schools Transportation Services, be terminated for the reasons and violations referenced above.

    
    

49. After Mr. Lewis' recommendation and accompanying materials were delivered to Respondent, Mr. Reichert met with William Vogel, the School Board's superintendent, to discuss the termination recommendation. Dr. Vogel concurred in the recommendation and directed Mr. Reichert to draft a letter, to be issued over Dr. Vogel's signature, suspending Respondent from her duties and recommending to the School Board that Respondent be terminated from her position.

50. Dr. Vogel's letter, dated December 8, 2005, stated in relevant part:

    I have received a copy of the letter that you received from Mr. Kenneth Lewis, Director of Transportation Services wherein he has recommended that you be suspended from your duties, and further that your employment be terminated. His recommendation is based upon the fact that you made statements and/or demonstrated conduct that constitutes conduct unbecoming of an employee of the Seminole County Public Schools, and is a violation of School Board policy 6.06 and 9.63. After a careful and lengthy review of the facts surrounding this recommendation, which is supported by the information contained in [the] investigation completed by Mr. Lewis, be advised that I have accepted the recommendation as submitted by Mr. Lewis.

    
    

    Therefore, pursuant to applicable Florida Statutes, be advised that you are suspended with pay effective at the close of business on December 9, 2005. Additionally, be advised that I will file a recommendation with the School Board of Seminole County at their regularly scheduled meeting to be held on Tuesday, January 10, [2006], that you be suspended from your duties without pay effective January 11, 2006, for the reason referenced above. . . .

    
    

    Further be advised that I will file an additional recommendation with the School Board of Seminole County, Florida that your employment be terminated for the reasons and violations identified above. . . .

    
    

51. Mr. Lewis handed Mr. Vogel's letter to Respondent on December 9, 2005. A few days later, Paul Sanchez, Executive Director of the Umbrella Organization for the unions representing non-management employees such as Respondent, contacted Mr. Reichert on Respondent's behalf. Mr. Sanchez and

    another union representative met with Mr. Vogel, Mr. Reichert, and Mr. Kosmac.

52. Mr. Sanchez contended that the entire matter was a misunderstanding centered on Respondent's difficulty with English. He also contended that the investigation was flawed because Mr. Lewis, Mr. Williams and Ms. Dent were intimately involved despite the fact that they were the alleged victims of Respondent's derogatory comments and racial slurs. Mr. Sanchez believed that the investigation became very emotional, and that the situation could be resolved by transferring Respondent.

    Dr. Vogel agreed to place a hold on his recommendation pending an inquiry by the School Board's legal staff into the issues raised by Mr. Sanchez.

53. Following the legal staff's review of the investigation, Dr. Vogel decided to move forward with his recommendation that Respondent be suspended without pay and terminated as a School Board employee. By letter, dated February 28, 2006, Dr. Vogel informed Respondent's representatives of his intention.

54. At the final hearing, several of Respondent's co- workers testified on her behalf. Jose Romero, an area manager who acted as translator during Ms. McKenzie's interview with

    Mr. Lewis, testified that he has known Respondent as a co-worker

    for over four years and never heard her use the word "nigger" or "redneck."

55. Mr. Lewis' report contained the following paragraph:

    
    

    During the interview with Ms. McKenzie,

    Mr. Jose Romero accompanied her to translate or explain anything she did not understand. When the question of the use of the word nigger was asked to Ms. McKenzie, Mr. Romero said that Ms. Hernandez uses the term when referring to Ray Williams, Euletha Byrd- Campbell and Ronnie Dubose. He heard her use it at the table where many of the Hispanics congregate in front of the dispatch office.

    
    

56. At the hearing, Mr. Romero flatly denied making the statements attributed to him in Mr. Lewis' report. Mr. Lewis was not questioned about this contradiction. Mr. Romero testified that he knew Respondent and Ms. McKenzie as co- workers, and considered Ms. McKenzie to be his friend.

    Mr. Romero attended the meeting in Mr. Lewis' office at the request of Ms. McKenzie, who did not trust the other translators proposed by Mr. Lewis, because they were all friends of Respondent. Ms. McKenzie testified that she trusted Mr. Romero. Ms. McKenzie's testimony allays any suspicion that Mr. Romero changed his testimony to protect Respondent. It appears more likely that Mr. Lewis' report incorrectly attributed the quoted statements to Mr. Romero.7 Mr. Lewis did not request a written statement from Mr. Romero.

57. Carmen Padilla, a bus monitor who worked on Respondent's bus for a little more than one month, testified that she never heard Respondent use the term "nigger."

58. Jose Galindo, a bus driver who shared a household with Respondent for ten years, testified that it is "impossible" that the word "nigger" could be part of Respondent's everyday vocabulary. Mr. Galindo testified that he has never heard Respondent use the word. Respondent and he socialized with black friends, and she never called them "niggers." Mr. Galindo did not recall ever hearing Respondent use the term "redneck."

59. Respondent testified on her own behalf at the hearing.

    
    

    Respondent's version of the incident on the school bus was different from that of Ms. Dent and Ms. McKenzie. According to Respondent, Ms. Dent did not appear interested in hearing what happened to make the bus run late. Ms. Dent had already met with Ms. McKenzie and apparently accepted Ms. McKenzie's version of events. Respondent testified that Ms. Dent told her she lacked common sense and called her a liar, and that it was her anger at being so labeled that caused Respondent to lash out with her comment that the "chemo went up to her head" after

    Ms. Dent left the bus. Respondent also recalled telling Ms. McKenzie that what Ms. Dent had said was "bullshit."

60. Respondent testified that, at the meeting with

    
    

    Ms. Dent, Mr. Williams, and Ms. McKenzie, she told Ms. Dent that

    she meant no harm by her comments, that she was merely striking out in anger. Respondent tried to explain that the source for "the comment about her chemo going to her head" was a "very famous [Latino] song" with a lyric that says "the bilirubin goes up to your head."8 Ms. Dent was screaming at Respondent, telling her that if she had said she was sorry, Ms. Dent would have forgiven her. Respondent testified, "How can you say that you're sorry to a person that is screaming, that is agitating things, and that I see there are lies?" Respondent could not remember ever telling people not to trust Ms. Dent.

61. At the meeting, Respondent felt cornered. She testified that she was never informed that she was entitled to have a union representative present. Respondent could not recall who they said was accusing her of using the word "nigger," but Respondent brought up the name Claudia Robles.

    Mr. Williams asked Respondent if she had ever called him a "nigger," and Respondent denied having done so. Respondent told Mr. Williams that she had used the word when translating a letter for another bus driver. The letter apparently described a situation involving Mr. Williams and this other driver, and referred to Mr. Williams as a "nigger."

62. Respondent testified that Ms. Dent threatened her, saying that "we're gonna take this all the way . . . I'm going to make sure that you get suspended, I'm going to do everything

    possible to get you suspended." From this statement, Respondent surmised that she would have a meeting with Mr. Lewis in the near future, after which she would be fired. Respondent denied that Mr. Williams or Ms. Dent ever asked her to submit a written statement.

63. Respondent testified that, after the meeting with

    
    

    Ms. Dent, Mr. Williams, and Ms. McKenzie, she went to the picnic tables where the transportation department employees gathered between shifts. Everyone at the table knew something was going on, and people asked Respondent why she had been called in for a meeting with her supervisors. Respondent then told them she was being accused of using the word "nigger," and of making the comments concerning Ms. Dent's chemotherapy.

64. Respondent could not remember who called her in to meet with Mr. Lewis on September 21, 2005. She walked into the room and saw that Mr. Lewis, Ms. Dent, and Mr. Williams were already there. She was not told that she could bring a union representative to the meeting, and was not offered a translator. Mr. Lewis first questioned Respondent about her driving, then asked about the "nigger" and chemotherapy comments. Respondent testified that she read from a letter she was composing, to make Mr. Lewis "see my culture, where I come from, something like that." Respondent never finished the letter and did not submit it to Mr. Lewis.

65. Respondent told Mr. Lewis that she didn't know the meaning of the word "nigger," and at the hearing, claimed she was not sure if she knew it was a racial slur at the time of the meeting with Mr. Lewis.9 She testified that during seven years in the Army, she never heard anyone say the word. She lived in Alabama, Georgia, and Texas, and never heard anyone say "nigger."

66. Respondent testified that she later had a second meeting with Mr. Lewis regarding allegations by Ms. Robles that Respondent was harassing her. Respondent testified that during this meeting, Mr. Lewis asked her if she had called him a "nigger." Respondent denied the allegation, and tried to make Mr. Lewis understand that Ms. Robles was the person who used the word "nigger."

67. Respondent testified that Ms. Robles used the word "nigger" several times, on social occasions away from work. Respondent stated that Ms. Robles' pronunciation was so poor that the word was unintelligible. Respondent understood what Ms. Robles was saying only when another woman chastised

    Ms. Robles for using the word. Respondent testified that Ms. Robles also used the word "redneck."

68. Respondent testified that she never referred to any transportation department employee as a "nigger." The word is not part of her day-to-day vocabulary. Respondent uses the

    Spanish word "negro" "all the time, because that's the word I was raised with." The term simply denotes color, and does not carry the derogatory meaning of "nigger."

69. Respondent's testimony is not persuasive as to the issue of her use of the word "nigger." The greater weight of the evidence supports the finding that Respondent did refer to Mr. Williams, Ms. Byrd-Campbell, Mr. Dubose, and Mr. Lewis as "niggers," that she did so because the word "nigger" was simply her manner of referring to black people when they angered her and were not present to hear, and that she knew the derogatory meaning of the word.

70. Respondent's changing story as to when she learned the meaning of the word did not enhance her credibility. She initially denied ever having used the term "nigger," then admitted to using the word when quoting Ms. Robles, then later claimed not to have known the meaning of the word.

71. The fact that several employees claimed not to have heard her use the term does not establish that Respondent never used the term. At most, it establishes that there were some fellow Hispanic employees with whom Respondent did not feel comfortable in indulging her use of the word.

72. Respondent's testimony, as well as that of her supportive witnesses, does raise questions about the investigative process employed by Mr. Lewis. Respondent

    testified that Mr. Lewis never asked her to submit a written statement, testimony that is somewhat corroborated by the fact that Mr. Lewis did not ask Ms. Sanchez, Ms. Maldonado, or

    Mr. Romero to submit written statements. Further, Mr. Romero credibly denied having made the statements attributed to him in Mr. Lewis' report.

73. Taken together, these facts establish that Mr. Lewis' report functioned more as a brief for the prosecution than as an even-handed investigative summary. Nonetheless, the ultimate finding that Respondent called various employees "niggers" rests on the credibility of Ms. McKenzie and Ms. Robles as against Respondent, which is unaffected by any flaws in the investigative process. All of the relevant witnesses testified in person at the hearing, and the undersigned was able to make an independent judgment as to their veracity and credibility, without reliance upon Mr. Lewis' report.

74. School Board Policy 6.06, adopted July 19, 2005, is titled "Employee Nondiscrimination Policy." Its stated purpose is as follows:

    The Seminole County School Board is committed to providing educational and work environments free of all forms of harassment or discrimination. No employee or applicant for employment shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination or harassment in any program, activity, employment, or conditions of employment in

    Seminole County Public Schools on the basis of race, color, national or ethnic origin, gender, disability, marital status, age, religion, political or religious beliefs, or any other basis prohibited by law. Nor shall any person be subjected to retaliation for reporting or complaining of alleged discrimination or harassment or participating in any way in the investigation of such allegations. The employees of Seminole County Public Schools shall not engage in such discrimination or harassment, and such conduct is also prohibited for any third party while participating in any activity sponsored by Seminole County Public Schools.

    
    

75. The definition of "racial harassment" is set forth at School Board Policy 6.06 II.B. as follows:

    Racial harassment is verbal (oral or written) or nonverbal (physical or graphic) conduct that degrades or shows hostility or aversion toward any employee based upon race, color or national origin when such conduct substantially interferes with the employee's job performance or the terms and conditions of his/her employment, or creates an intimidating, hostile, or offensive work environment.

    
    

    Racial harassment, as defined above, may include but is not limited to the following conduct:

    
    

    1. Epithets and slurs;

    2. Negative stereotyping;

    3. Threatening, intimidating, or hostile acts; or

    4. Written or graphic material that shows hostility or aversion toward an individual or group.

    
    

76. There can be little question that "nigger" constitutes a racial epithet and/or slur, and that Respondent's verbal

    conduct in using the term degraded or showed hostility toward fellow employees based upon race.10

77. The more difficult question is whether Respondent's verbal conduct created "an intimidating, hostile, or offensive work environment." Respondent never used the term "nigger" directly against the persons at whom the epithet was directed, and she was not in a supervisory capacity as to those persons, two factors that militate against terming Respondent's actions "intimidating" in the common workplace sense of the term.

78. However, the testimony of Mr. Williams as to the hostile and offensive work environment created by Respondent's verbal conduct is persuasive. Mr. Williams credibly believed that his effectiveness as a supervisor was undermined by Respondent. He felt hurt and disrespected, and did not think he could continue to work with Respondent. The testimony of

    Ms. Dent was also persuasive. Though she was not the target of the racial epithet, Ms. Dent credibly believed that her authority over and respect from the department's black employees could only be undermined if she allowed Respondent to use the term "nigger" openly and with impunity.11 It is found that Respondent's verbal conduct constituted "racial harassment" as defined in School Board Policy 6.06 II.B.

79. Employee and student training procedures are set forth in School Board Policy 6.06 IV., as follows:

    IV. Training

    
    

    1. All employees and students shall receive training each year to insure that the entire education community understands this policy, what constitutes prohibited harassment, discrimination, or retaliation and the consequences for engaging in such conduct.

       
       

    2. Each principal and cost center supervisor shall ensure that this policy is specifically reviewed with employees, including administrators, instructional personnel, and noninstructional personnel, with volunteers, and with students on an annual basis. It is the responsibility of each supervising administrator in the school system to ensure that this policy is reviewed with all other employees over which he/she directly or indirectly has supervisory authority.

       
       

    3. Employees must clearly understand that conduct believed by them to constitute harassment should be reported to the principal, supervising administrator, or the District Equity Coordinator. They also must clearly understand that if an employee complains to them regarding alleged harassment, they should immediately refer that employee to the principal, the supervising administrator, or the District Equity Coordinator for appropriate action under this policy.

       
       

    4. Any personnel who may be called upon to conduct investigation must clearly understand how to do so, including the circumstances in which immediate or interim measures are necessary or appropriate.

       
       

    5. All employees, as well as students and volunteers, also must clearly understand that they and others supporting them will not suffer any retaliation or recrimination on account of their reporting of any alleged

    harassment or on account of participating in an investigation of any alleged harassment.

    
    

80. Respondent contends that the annual in-service training sessions provided to transportation department employees by the School Board were inadequate to place Respondent fully on notice as to the meaning of "racial harassment."

81. Respondent admitted that she attended such a training session on July 25, 2005, of which a videotape was admitted into evidence. The "training session" was a small part of a two-hour transportation department general meeting to prepare for the 2005-2006 school year. Mr. Lewis presided over the meeting, and recognized some drivers for perfect attendance and gave out safe driving awards. Mr. Vogel and Mr. Kosmac addressed the assembly. Other School Board employees gave presentations on issues including road closings, field trips, payroll and union negotiations, training, care for exceptional students, the employee assistance program and employee benefits.

82. After all of these presentations, Mr. Lewis announced that a video was about to be shown dealing with sexual and racial harassment and fraternization. He told the assembly that "we are required" to show the video, and that each employee present would be required to sign a document verifying that he or she had watched the video.

83. The video was started without further introduction. A title on the screen indicated that it was a taped School Board training session from April 2005 on the topic of sexual and racial harassment and fraternization.12 The presenter identified herself as Sally Jenkins from the professional training department.

84. Ms. Jenkins commenced her presentation with a discussion of sexual harassment, setting forth the definition and examples of "quid pro quo" sexual harassment and "hostile environment" sexual harassment. As Ms. Jenkins was going through examples of what constitutes "hostile environment" sexual harassment, the tape abruptly jumped into the middle of her discussion of racial harassment. Lost in this jump was any discussion of examples of racial harassment. It was unclear whether the jump was caused by a problem in duplicating the tape that was presented into evidence, or whether this was actually what was shown to the assembly on July 25, 2005.13

85. Respondent complains that the "training" provided by the School Board was entirely inadequate to meet the requirements prescribed in School Board Policy 6.06 IV. The entire presentation was in English, and no examples of what constitutes a "hostile environment" or "racial harassment" was provided in the video presentation. Respondent contends that the presentation was not designed to ensure that Spanish-

    speaking employees "clearly understand" what constitutes prohibited harassment or discrimination.

86. Respondent correctly observes that this taped training presentation was treated in a pro forma manner at the July 25, 2005, assembly. If the videotape in evidence correctly conveys what was shown to the assembly, much of Ms. Jenkins' presentation on racial harassment was not shown. However, these objections would give rise to a defense only if Respondent could plausibly claim that she relied on the training for her knowledge of the matters giving rise to this case.

87. In other words, Respondent would have to claim she was unaware that "nigger" was a racial epithet or that promiscuous use of the term "nigger" in the workplace would be deemed hostile and offensive by her co-workers, and that she was completely reliant on the School Board's training to be made aware of these matters. Respondent's contention that she did not know the meaning of "nigger" has been rejected. Whatever the inadequacies of the training provided at the July 25, 2005, assembly, Respondent cannot plausibly claim them as a defense in this case.

88. The guidelines for School Board investigations of harassment or discrimination are set forth at School Board Policy 6.06 VI., as follows, in relevant part:

    1. Guidelines for Investigations

       
       

       1. At any time, the District Equity Coordinator may, in his/her discretion, appoint an appropriate person to investigate a report of harassment or discrimination. All such investigators will be appropriately trained in how to conduct an investigation pursuant to this policy and will not be persons alleged to have any involvement in the situation at issue.

          
          

89. As found above, Mr. Lewis was the district equity coordinator prior to becoming director of transportation. As district equity coordinator, Mr. Lewis received extensive training in the substantive areas of harassment and discrimination and in the proper procedures for conducting investigations. Aside from his status as one of the persons whom Respondent allegedly called a "nigger," there is no question that Mr. Lewis was "an appropriate person to investigate" the allegations brought to him by Ms. Dent and Mr. Williams.14

90. The relevant portion of School Board Policy 6.06 VII, relating to the School Board's grievance procedure, is as follows:

    1. Grievance Procedure

    
    

    The following steps will be followed if an employee feels that he/she has experienced prohibited discrimination or harassment at work or during an activity sponsored by Seminole County Public Schools:

    Level I: If the employee believes that he/she has been discriminated against or harassed, the employee should file a written complaint with his/her building principal, supervising administrator, or the District Equity Coordinator. If the building principal or supervising administrator is allegedly involved, the complaint should be filed directly with the District Equity Coordinator. If the complaint is filed with the principal or supervising administrator, he/she shall immediately forward a copy to the District Equity Coordinator. The principal, the administrator, or the District Equity Coordinator must then schedule a conference with the employee to find out more about the complaint and explore possible resolutions. The conference should be held as soon as possible in light of the nature of the allegations and, in any event, must be held within five (5) working days of the date of filing. (Emphasis added)

    
    

91. Respondent contends that the underscored language should have required Mr. Lewis to recuse himself from the investigation due to his personal involvement in the allegations against Respondent. Ms. Hardy-Blake testified that the School Board's interpretation of the quoted language is that a supervisor should not conduct the investigation only where he or she is the alleged perpetrator of the harassment or discrimination. Nothing in the policy prevented Mr. Lewis from conducting the investigation.

92. As suggested above, many of Respondent's complaints about the process would have been rendered nugatory had

    Mr. Lewis stepped aside upon learning that Respondent was

    alleged to have called him a "nigger." Mr. Lewis credibly testified that the allegation had no effect on his conduct of the investigation, but Ms. Hardy-Blake or Mr. Reichert should have considered the appearance of allowing the alleged subject of an inflammatory racial epithet to continue as the lead investigator.

93. However, as found above, the ultimate finding that Respondent called various employees "niggers" rests on the credibility of Ms. McKenzie and Ms. Robles as against Respondent, which is unaffected by any flaws in the investigative process. This finding is based on the sworn testimony and demeanor of the witnesses at the final hearing, not on the statements in Mr. Lewis' report.

94. Respondent's comments about Ms. Dent, though outrageous and cruel, were not violative of the policy against racial harassment. The School Board has alleged that Respondent's conduct violated School Board Policy 9.63, titled "Civility and Conduct of Parents, Other Visitors to Schools and School District Facilities, and District Employees." The policy provides as follows, in relevant part:

    The School Board recognizes that education of children is a process that involves a partnership between a child's parents, teacher, school administrators, and other school and School Board personnel. The School Board recognizes that parental participation in their child's educational

    process through parent/teacher conferences, classroom visitation, serving as a school volunteer (Dividend), serving as a field trip chaperone, PTA participation, and other such service is critical to a child's educational success. For that reason the School Board welcomes and encourages parental participation in the life of their child's school.

    
    

    However, from time to time parents and other visitors to schools and District facilities sometimes act in a manner that is disruptive to a school or other District facility and which is threatening and/or intimidating to school and District employees.

    
    

    The purpose of this policy is to provide rules of conduct for parents, other visitors to schools, and District employees which permit and encourage participation in school or District activities, while at the same time enabling the School Board to identify and deal with those behaviors which are inappropriate and disruptive to the operation of a school or other District facility.

    
    

    It is the intent of the School Board to promote mutual respect, civility, and orderly conduct among district employees, parents, and the public. It is not the intent of the School Board to deprive any person of his or her right to freedom of expression. The intent of this policy is to maintain, to the greatest extent reasonably possible, a safe, harassment-free workplace for teachers, students, administrators, other staff, and parents and other members of the community. In the interest of presenting teachers and other employees as positive role models, the School Board encourages positive communication and discourages disruptive, volatile, hostile, or aggressive communications or actions.

    1. Expected Level of Behavior

       
       

       1. School and School District personnel will treat parents and other members of the public with courtesy and respect.

          
          

       2. Parents and other visitors to schools and District facilities will treat teachers, school administrators, other school staff, and District employees with courtesy and respect.

          
          

    2. Unacceptable/Disruptive Behavior

       
       

       Disruptive behavior includes, but is not necessarily limited to:

       
       

       1. Behavior which interferes with or threatens to interfere with the operation of a classroom, an employee's office or office area, areas of a school or facility open to parents/guardians and the general public and areas of a school or facility which are not open to parents/guardians and the general public;

          
          

       2. Using loud and/or offensive language, swearing, cursing, using profane language, or display of temper;

          
          

       3. Threatening to do bodily or physical harm to a teacher, school administrator, school employee, or student regardless of whether or not the behavior constitutes or may constitute a criminal violation;

          
          

       4. Damaging or destroying school or School Board property;

          
          

       5. Any other behavior which disrupts the orderly operation of a school, a school classroom, or any other School Board facility; or

          
          

       6. Abusive, threatening, or obscene e- mail or voice mail messages.

95. The remaining sections of the policy deal with the procedure by which a parent may file a complaint as to a staff member's behavior, the authority of school personnel to direct disruptive persons to leave school or School Board premises, the authority of School Board personnel to deal with members of the public who are verbally abusive, and the procedure by which School Board employees should deal with abusive, threatening or obscene e-mail or voice mail messages.

96. Respondent correctly observes that School Board Policy

    
    

    9.63 makes no mention of employee discipline for failure to abide by its provisions. Read as a whole, the Civility Policy seems generally directed at the interactions of School Board personnel with the public, and more particularly at protecting School Board personnel from abusive language and behavior by members of the public. Absent some clearly defined enforcement mechanism as to employees, the Civility Policy appears to be an aspirational rather than a formal disciplinary standard.

97. This finding, however, begs the question of whether Respondent's conduct toward Ms. Dent may be cause for discipline under the general heading of "conduct unbecoming" a School Board employee, pursuant to case law precedent. In that sense, School Board Policy 9.63 II may be read as setting forth examples of behavior that fall into the category of "conduct unbecoming" a School Board employee, thereby giving the employee notice that

    such behavior is unacceptable and subject to discipline. This issue is resolved in the Conclusions of Law below.

    CONCLUSIONS OF LAW

    
    

98. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and Subsections 120.57(1), and 1012.40(2)(c), Florida Statutes (2007), and Article IX, Section 4.E. of the Collective Bargaining Agreement.

99. The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining Respondent. See, e.g., McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County

    School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

100. Subsection 1012.40(2)(b), Florida Statutes (2007),

     provides that non-probationary educational support employees such as Respondent may be terminated only "for reasons stated in the collective bargaining agreement."

101. Article IX, Section 4.A. of the Collective Bargaining Agreement provides that an employee such as Respondent "shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause." Article IX, Section 4.C.

     of the Collective Bargaining Agreement provides, in relevant part:

     An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present:

     1. Violation of School Board Policy.

     2. Violation of work rules. . . .

102. Conduct unbecoming a public employee is a ground for termination of employment. Seminole County Board of County Commissioners v. Long, 422 So. 2d 938, 940 (Fla. 5th DCA 1982). Conduct unbecoming a public employee is conduct that falls below a reasonable standard of conduct prescribed by the employer.

     Id.

     
     

103. 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 v. Smith, 35

     So. 2d 650 (Fla. 1948); In re: Grievance of Towle, 665 A. 2d 55 (Vt. 1995). See also Seminole County School Board v. Robinson, Case No. 02-0075 (DOAH May 24, 2002).

104. In Jacker v. School Board of Dade County, 426 So. 2d 1149 (Fla. 3d DCA 1983), the court affirmed a school board's order of dismissal of a non-instructional employee for failure to show proper respect for the authority of supervisory employees. In particular, the employee in question made

     "disparaging racial remarks concerning a supervisor" while on the job and in the presence of co-workers, which "threatened proper supervisory discipline and employee harmony." Id. at 1151.

105. The court found that "notwithstanding the absence of a specific rule of conduct requiring that employees show proper respect for their employers 'as a matter of common sense if not [of] common law,' such a requirement is inherent in the employment relationship . . . and the right of a public employer to discipline an employee for 'proper cause,'. . . embodies, without the need for separate delineation, the right to discipline for failure to show proper respect to the employer

     . . ." Id. (Citations omitted)

106. In the instant case, Respondent was not charged in so many words with "failure to show respect" to her supervisors, but the gravamen of the School Board's allegations is the same. Respondent was charged with "statements and/or demonstrated conduct" that constituted conduct unbecoming a School Board employee and a violation of School Board Policies 6.06 and 9.63. Her conduct was found to have undermined the authority of her supervisors and workplace harmony. Her acts of racial harassment violated the specific provisions of School Board

     Policy 6.06 II.B. Respondent's repeated comments about Ms. Dent violated no School Board Policy that carries a specific disciplinary penalty, but certainly trespassed against the civility standards set forth in School Board Policy 9.63, by threatening to disrupt the orderly operation of the transportation department. It cannot be seriously contended, "as

     a matter of common sense," that the absence of a specific penalty could reasonably have led Respondent to believe that it was acceptable to make cruel and taunting remarks about her supervisor's breast cancer, on the job and in the presence of her co-workers.

107. This is a de novo proceeding, not an appeal of a decision by the School Board or its staff. See Subsection 120.57(1)(k), Florida Statutes (2007). The findings that Respondent used the term "nigger" repeatedly against certain supervisors and co-workers, and that Respondent on more than one occasion stated that Ms. Dent's chemotherapy went from her breast to her brain and turned her brain to shit, were based on the testimony elicited at the final hearing. The discrepancies in Mr. Lewis' report, and the fact that Mr. Lewis should have recused himself from the investigation, were noted above, but had no bearing on the ultimate findings that Respondent committed the acts of which she was accused in the Petition.

     
     

108. Respondent relies on Seminole County School Board v. Brinkman, Case No. 01-0248 (DOAH April 20, 2001) for the proposition that "[i]solated racial comments are not severe or

     pervasive enough to create what a reasonable person would objectively find to be a hostile or abusive work environment." See Brinkman, ¶ 38 and cases cited therein.15

109. Accepting the quoted principle does not avail Respondent, due to the factual distinctions between this case

     and Brinkman. In Brinkman, a teacher angered at his principal's refusal of a request to get his paycheck a day early blurted out that she was a "black bitch" in the presence of another teacher,

     who immediately reported the statement to the principal. The

     initial statement was heard only by the other teacher. There was no evidence of a general awareness, in the school system or the community at large, that the teacher had made the statement.

     This was an isolated incident for which the teacher accepted full responsibility and offered apology. The Administrative Law Judge recommended dismissal of the charges and reinstatement of the teacher with back pay.

110. In the instant case, Respondent's racial epithets were not isolated, but habitual. Respondent never admitted to making the racial epithets, though she did admit to a modified version of the comments about Ms. Dent. Respondent's statements as to Ms. Dent appeared to be common knowledge among her co-

     workers, though fewer were aware of her racial slurs. These facts substantially contrast with those of Brinkman, and were sufficient to establish that a hostile work environment was created by Respondent's conduct.

111. The School Board met its burden to prove that it has "just cause" to terminate Respondent's employment for conduct unbecoming a School Board employee. The facts found above establish that Respondent's conduct constituted racial harassment

     as that term is defined in School Board Policy 6.06 II.B. and

     conduct unbecoming a School Board employee through her violations of School Board Policies 6.06 and 9.63.

112. Article IX, Section 4.C. of the Collective Bargaining Agreement allows for termination of employment if there is just cause to believe that Respondent has violated School Board policy. The undersigned would be inclined to recommend a lesser penalty, such as suspension without pay and diversity training, had Respondent acknowledged her actions, accepted responsibility for them, and attempted to make amends for the harm she caused in the workplace. However, under all the facts and circumstances

discussed above, termination is appropriate in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner, the Seminole County School Board, issue a final order that terminates the employment of Respondent, Mirella Hernandez.

DONE AND ENTERED this 16th day of November, 2007, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2007.

ENDNOTES

1/ This exhibit was originally marked as School Board Exhibit 39.

2/ At the hearing, Ms. Rodriguez confirmed her conversation with Ms. Dent. Ms. Rodriguez also testified that she had never heard Respondent use the terms "nigger" or "redneck."

3/ Prior to accepting the position of transportation director in November 2003, Mr. Lewis had served as the School Board's equity coordinator for three years. As equity coordinator, Mr. Lewis performed investigations and wrote reports when issues of sexual harassment and racial discrimination arose regarding School Board employees. Ms. Hardy-Blake was aware of Mr. Lewis' background and experience when she agreed that he should perform the investigation of Respondent.

4/ At Mr. Lewis' request, Mr. Williams sat in on the interviews of Respondent, Ms. McKenzie, Millie Maldonado, and Ivette Sanchez, and Ms. Dent sat in on the interviews of Respondent, Ms. McKenzie, Ms. Maldonado, and Claudia Robles. Neither

Mr. Williams nor Ms. Dent interacted with the interviewees in any way.

5/ In none of the interviews did Mr. Lewis solicit information as to whether Respondent had referred to him as a "nigger." Ms. McKenzie volunteered this information, which Mr. Lewis did not pursue further.

6/ Mr. Lewis testified that he included his own name in the report in the interest of completeness, because some of the persons interviewed had volunteered that Respondent had referred to Mr. Lewis as a "nigger." Mr. Lewis credibly testified that he had no personal animus against Respondent. His concern was with the impact Respondent's behavior was having on the organization, especially on the ability of Ms. Dent and

Mr. Williams to perform their supervisory duties. Mr. Lewis never contemplated filing a complaint against Respondent.

7/ The School Board made no effort to rebut Mr. Romero's testimony on this point. The presence of the quoted paragraph in Mr. Lewis' report is puzzling, though it is difficult to ascribe ill motive to Mr. Lewis' error, as it was very obvious and very easily corrected by Mr. Romero. Mr. Lewis testified that he took handwritten notes during the interviews, which he later typed up for his report. Mr. Lewis testified that he shredded his handwritten notes of the various interviews after completing his report, thus eliminating a possible contemporaneous corroboration of the report's paragraph concerning Mr. Romero.

8/ Respondent's reference was to the song, "Me sube la bilirrubina" by Juan Luis Guerra, which employs a sustained metaphor that the love felt by the singer is poisonous, causing his bilirubin to soar and make his face yellow.

9/ This testimony contradicted Respondent's deposition testimony, in which she admitted that someone identified as "Mrs. Hayes" had used the word and explained its meaning to her several years prior to these events. At the hearing, Respondent claimed that she must have misunderstood the deposition question. However, the question was clear and Respondent's answer was a precise recollection.

10/ The term "redneck" is a different matter. There was no evidence of any specific occasion on which Respondent used that term, and no evidence that any fellow employee ever took offense at the term. Respondent credibly testified that some of her white fellow employees had bumper stickers with "redneck" jokes on their personal vehicles.

11/ There was evidence that the controversy adversely affected employee morale and relations between black and Hispanic employees of the transportation department. Ms. Maldonado, who was in charge of the 2005 Latin Christmas party, testified that the situation caused many black employees to decline to purchase tickets for the party.

12/ The video was projected onto a large screen in front of the assembly. The tape presented as evidence in this proceeding was a recording made via a camera aimed at the large screen, and is therefore of poor quality.

13/ Also unclear is whether the course materials referenced by Ms. Jenkins were provided to the transportation department employees who watched the tape on July 25, 2005.

14/ At the time Mr. Lewis told Ms. Hardy-Blake of his intention to conduct the investigation, he was unaware of any allegations that Respondent had called him a "nigger." As found above,

Mr. Lewis made no effort to pursue this allegation and did not file a complaint against Respondent.

15/ The Administrative Law Judge in Brinkman drew on state and federal law in discrimination cases to establish criteria for what constitutes a "hostile" or "abusive" situation in the workplace, based on the similarity between the language of Florida Administrative Code Rule 6B-1.006 and the federal and state laws in question. Florida Administrative Code Rule 6B-

1.006 sets forth the "Principles of Professional Conduct for the Education Profession in Florida," which are not binding on educational support employees. The legal principle cited in Brinkman is nonetheless sound and applicable to this case. However, the dissimilarity in facts between Brinkman and the instant case makes the former's conclusion inapposite to this analysis.

COPIES FURNISHED:

Serita D. Beamon, Esquire Seminole County School Board Legal Service Department

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Pamela Hubbell Miller, Esquire Chamblee, Johnson & Haynes, P.A.

510 Vonderburg Drive, Suite 200 Brandon, Florida 33511

Ned N. Julian, Jr., Esquire Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Thomas Johnson, Esquire Chamblee, Johnson & Haynes, P.A.

510 Vonderburg Drive, Suite 200 Brandon, Florida 33511

Dr. Bill Vogel, Superintendent Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Honorable Jeanine Blomberg Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 06-001039

Orders for Case No: 06-001039