If Ms. Thompson's actions violated the School Board's Rules, do the violations constitute just cause for termination or other disciplinary action?
The School Board employs Ms. Thompson as a School Security Monitor. By a letter dated October 5, 2010, the office of the Miami-Dade County Public Schools Superintendent advised
Ms. Thompson that it intended to recommend her suspension and termination to the School Board for violation of Rules 6GX13-4A- 1.21, 6GX13-4A-1.213, and 6GX13-5D-1.07 of the School Board. At its October 13, 2010, meeting the School Board suspended
Ms. Thompson without pay and began dismissal proceedings against her for violation of the rules.
Ms. Thompson requested a hearing to challenge that decision. On October 25, 2010, the School Board referred the matter to the Division of Administrative Hearings for conduct of the hearing. The case was set for hearing to be held
December 23, 2010. After a continuance granted at the request of the parties, the matter was set to be heard February 28, 2011. The hearing occurred as scheduled.
The School Board presented testimony from Angel Rodriguez, V.G., L.D., Roy Corley, Gregory Cooper, and Ana San Roman.
Petitioner's Exhibits 1-25 were admitted into evidence.
Ms. Thompson testified on her own behalf and did not call any other witnesses. Ms. Thompson did not offer exhibits.
The transcript was filed March 31, 2011. The parties timely filed Proposed Recommended Orders. They have been considered in the preparation of this recommended order.
The School Board is the constitutional entity charged with the duty to operate, control, and supervise the Miami-Dade County Public School System.
Ms. Thompson has worked for the School Board for ten years. Throughout her employment she has worked at Ruth Owens Kruse School (Kruse) as a full-time School Security Monitor. This is a separate day school serving students with emotional and behavioral disabilities. Ms. Thompson has been a satisfactory employee for the ten years of her employment, except for the incident involved in this proceeding. She has received only one verbal warning. Under School Board rules, the warning is not formal discipline. The incident resulting in the warning did not generate a finding of probable cause to believe that Ms. Thompson had violated School Board rules. The School Board and her principals have never disciplined her.
The basic objectives of Ms. Thompson's position include monitoring student activity "in promoting and maintaining a safe
learning environment" and ensuring that appropriate standards of conduct are followed.
Her job tasks and responsibilities include reporting serious disturbances and resolving minor altercations.
The collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (Collective Bargaining Agreement), Florida Statutes, State Board of Education rules published in the Florida Administrative Code, and the policies and procedures of the School Board govern
Ms. Thompson and establish the terms and conditions of her employment.
Ms. Thompson is an "educational support employee," as defined by section 1012.40(1)(a), Florida Statutes (2010)2 and is governed by the Collective Bargaining Agreement. The Collective Bargaining Agreement requires "just cause" for the discipline of support personnel.
The Collective Bargaining Agreement provides that:
Just cause includes, but is not limited to misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board [of Education] Rule 6B-4.009.
Rule 6B-4.009 of the State Board of Education defines incompetency, immorality, and gross insubordination. It defines willful neglect of duty continuing or constant intentional
refusal to obey reasonable orders. The rule defines misconduct in office as violations of Florida Administrative Code Rules 6B-
1.001 and 6B-1.006 "so serious as to impair the individual's effectiveness in the school system."
The Collective Bargaining Agreement affirms that the School Board and the Superintendent of Schools have exclusive management authority of the total school system. They have the exclusive right to suspend or terminate employees.
The Collective Bargaining Agreement recognizes that "special education students" may experience impaired impulse control of such severity that the use of physical restraint is necessary. It also states: "The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to 'teach the child a lesson' or as punishment."
The School Board provided Ms. Thompson its policies and procedures, including its Code of Ethics and all the rules that she is charged in this proceeding with violating.
Ms. Thompson has reviewed those policies. Knowing and abiding by them is a requirement of her job.
As a School Security Monitor at Kruse, Ms. Thompson's duties included ensuring that the school environment was safe for the employees and children. All Kruse staff members must be able to work with students having emotional and behavioral
disabilities. The staff must be able to de-escalate situations, maintain order, maintain discipline, and serve as role models for the students. If attacked, employees may defend themselves.
The School Board has provided Ms. Thompson initial training and refresher training in "Safe Crisis Management." The School Board has also provided Ms. Thompson training in appropriate physical restraint techniques.
Twelve clinicians work full-time at Kruse with students. They are clinical psychologists, clinical social workers, or art therapists. Each student has a clinician case manager. Kruse protocols require employees to call a clinician for assistance with behavioral problems the employee cannot manage.
Room 22 at Kruse is the designated "Calm Room." It is for students who are agitated, serving detention, or serving "timeout" in the least restrictive area outside the classroom. The adjoining room, with a connecting door, is designated as the "Timeout Room or Back Room," divided into two areas. The "Timeout Room or Back Room" is a state-approved, specifically designed, and padded room for use by students at extreme behavioral levels.
On April 13, 2010, Ms. Thompson's security post was down the hall from Room 22. V.G., an 18-year-old tenth grade Kruse student, was in the "Calm Room" serving a one day
detention because she had skipped school the day before. Other students, including V.G.'s friend L.D., were in the room. The morning of April 13, 2010, Ms. Thompson had escorted V.G. to the "Calm Room."
Around noon, Ms. Thompson passed the open door of the "Calm Room." Mr. Villarreal, the teacher in the "Calm Room," asked Ms. Thompson to stay in the "Calm Room" while he stepped out for a few minutes. Ms. Thompson agreed and took a seat at a desk at the back of the room.
V.G. was sitting near the front of the room. She was talking and misbehaving. She was not doing her work. V.G. was talking loudly to her friend L.D. across the room and to other students.
There were three other School Security Guards in the room at the time. Ms. Thompson directed V.G. to turn around and be quiet. V.G. ignored her and continued talking across the room to L.D. She talked back to Ms. Thompson repeatedly and was verbally abusive. V.G. said, "Bitch, I am not doing it." V.G. continued to talk and be insulting and combative. Ms. Thompson continued to tell V.G. to be quiet and turn around.
But as Ms. Thompson grew upset, she told V.G. that she had a "fat ass." Ms. Thompson also told V.G. "that's why your boyfriend doesn't love you and that's why; you're fat." The argument continued and escalated with V.G. and Ms. Thompson
insulting each other. Each called the other a "fat bitch" and other names several times.
Ms. Thompson grew increasingly upset and walked up to
V.G. saying that she was taking V.G. to the "Back Room."
Another School Security Guard, Mr. Rojas joined Ms. Thompson to escort V.G. to the "Back Room." At any time, Ms. Thompson could have disengaged from her argument with V.G. and let Mr. Rojas and the other School Security Guards in the room handle the problems V.G. was creating. She also could have called a clinician for assistance. She did neither.
Ms. Thompson did not disengage. She continued yelling and arguing with V.G. and followed Mr. Rojas and V.G. into the "Back Room." She was upset by the insults and because students were seeing V.G. be disrespectful to her. Ms. Thompson did not need to follow V.G. and Mr. Rojas into the "Back Room."
In her anger, Ms. Thompson pushed past Mr. Rojas and punched at V.G. She grabbed V.G.'s hair, and V.G. grabbed hers. They fought until the other School Security Guards separated them. In the struggle, Ms. Thompson scratched V.G.'s face and neck, leaving light marks. She also bruised V.G.'s arms.
Ms. Thompson left the area. As she left, Ms. Thompson grabbed V.G.'s purse and threw it in the trash. Leaving the area of the "Calm Room," Ms. Thompson passed school psychologist Ana San Roman. Ms. Thompson was disheveled and visibly
agitated. As the two passed each other, Ms. Thompson said to Ms. San Roman: "I finally got that bitch." Her exclamation demonstrated that the altercation involved personal feelings about V.G. not just the professional issues presented by the events of the day.
Ms. Thompson's altercation with V.G. was not part of an effort to prevent injury to person or damage to property. It was the result of Ms. Thompson's frustration and anger and
Ms. Thompson's desire to demonstrate to V.G. that she could not show Ms. Thompson disrespect.
After the incident, Ms. Thompson completed a required form called a Student Case Management Referral. In the form Ms. Thompson stated that she attempted to perform an approved restraint on V.G. But, at the hearing, Ms. Thompson testified that V.G. attacked her. She did not claim to have attempted to perform an approved restraint. V.G.'s account of the fight on the day it occurred and at hearing are consistent, albeit more colorful in testimony. The inconsistency of Ms. Thompson's testimony with her report on April 13, the greater consistency of V.G.'s testimony with her report, and the testimony of Ms. San Roman are significant factors resulting in determining that Ms. Thompson's account is not as credible as V.G.'s.
The "Do's and Dont's [sic]" list for interventions with students at Kruse identifies the following behaviors that
escalate difficulties with students as "don'ts": raising voice, yelling, having the last word, using "put downs," and using physical force. In the course of her altercation with V.G., Ms. Thompson engaged in every one of the behaviors.
After investigating the incident, the office of the Miami-Dade County Public Schools Superintendent advised
Ms. Thompson, by letter dated October 5, 2010, that it intended to recommend her suspension and termination to the School Board for violation of Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07 of the Miami-Dade County School Board. At its
October 13, 2010, meeting the School Board suspended
Ms. Thompson without pay and began dismissal proceedings against her for violation of the rules. The School Board's October 15, 2010, letter advising Ms. Thompson of the decision stated that it was "for just cause, including, but not limited to" violation of School Board Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07.
School Board Rule 6Gx13-4A-1.21 provides in relevant
part:
All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
School Board Rule 6Gx13-5D-1.07 provides in relevant
part:
The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement.
In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending upon the severity of the misconduct.
School Board Rule 6Gx13-4A-1.213, Code of Ethics, provides in part:
As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001):
* * *
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
* * *
Each employee agrees and pledges:
To abide by this Code of Ethics, making the well-being of the students and the
honest performance of professional duties core guiding principles.
To obey local, state and national laws, codes and regulations.
To support the principles of due process to protect the civil and human rights of all individuals.
To treat all persons with respect and to strive to be fair in all matters.
To take responsibility and be accountable for his or her actions.
To avoid conflict of interest or any appearance of impropriety.
To cooperate with others to protect and advance the District and its students.
To be efficient and effective in the delivery of job duties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to sections 120.569, 120.57(1), and 1012.40(2)(c), Florida Statutes.
The superintendent of the school district has the authority to make recommendations for dismissal regarding school employees pursuant to section 1012.27(5).
The School Board has the authority to dismiss employees pursuant to sections 1001.42(5) and 1012.22(1)(f).
The School Board has the burden of proof in this employee dismissal proceeding and must meet that burden by a preponderance of the evidence. See McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2nd DCA 1996); Sublett v.
Sumter Cnty. Sch. Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995).
District school boards have authority to "adopt rules governing personnel matters." See § 1012.23(1), Fla. Stat.
The School Board's Proposed Recommended Order argues that Ms. Thompson also violated School Board Rule 6Gx13-4.108. This rule provides that threatening behavior or violence against students will not be tolerated. The Pre-Hearing Stipulation, the letter advising Ms. Thompson of the recommended disciplinary action, and the School Board's letter advising of her suspension and initiation of the termination proceedings do not mention that rule.
Section 1012.40(2)(c) requires a superintendent and a school board to provide written notice of the reasons for termination. Since Ms Thompson never received written notice of the School Board's intent to rely upon Rule 6Gx13-4.108, it will not be considered as a ground for disciplinary action. Cf. Klein v. Dep't. of Bus. and Prof'l Reg., 595 So. 2d 966, 967 (Fla. 2nd DCA 1993).
Ms. Thompson's fight with V.G. violated the prohibition of corporal punishment in School Board Rule 6Gx13- 5D-1.07. Her aggression, including punching at V.G., pulling her hair, and scratching her, was prohibited corporal punishment.
School Board Rule 6Gx12-4A-1.213 requires employees to treat all persons with respect. Ms. Thompson did not treat V.G. with respect when she repeatedly cursed and ridiculed her and eventually attacked her.
Among other things, School Board Rule 6Gx12-4A-1.21 prohibits "use of abusive and/or profane language in the workplace . . . ." Ms. Thompson violated this rule.
Ms. Thompson's violation of the School Board Rules establishes just cause for disciplinary action. These were not accidental or minor violations. Ms. Thompson's actions were deliberate and personal. The altercation was eminently avoidable. Ms. Thompson could have enlisted the assistance of other security guards in the room. Once Mr. Rojas became engaged Ms. Thompson could have ended the event by walking away. Ms. Thompson could have contacted a clinician. Instead she chose to continue and escalate the altercation.
The violations also relate directly to Ms. Thompson's duties as a Security Monitor. In a job that requires promoting appropriate conduct, she demonstrated a sustained willingness to engage in highly inappropriate conduct. In a job that requires maintaining a safe learning environment, she engaged in and escalated a dispute that made the learning environment less safe. Her job required reporting serous disturbances and resolving minor altercations. Instead Ms. Thompson escalated a
minor altercation to a serious disturbance. Ms. Thompson's actions, especially since they occurred before a number of students, were so serious as to impair her effectiveness.
These factors make termination an appropriate action, even in light of the difficulty of the situation, the challenges inherent in Ms. Thompson's position, and Ms. Thompson's
