STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3863

)

KATHLEEN LESLIE, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by William R. Dorsey, Jr., the assigned Hearing Officer of the Division of Administrative Hearings, on February 10, February 12-14, and June 9-12, 1992, in Fort Lauderdale, Florida. On August 16, 1993, due to the unavailability of Hearing Officer Dorsey, this cause was transferred to the undersigned Hearing Officer pursuant to Section 120.57(1)(b)11, Florida Statutes, for entry of a Recommended Order.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock, Soloff & Rodriguez, P.A. 1512 East Broward Boulevard, Suite 300 Fort Lauderdale, Florida 33301

For Respondent: Thomas F. Panza, Esquire

Jan Marie Kelly, Esquire

Panza, Maurer, Maynard, Platow & Neel, P.A. 3081 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Petition for Dismissal filed against her, and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

On May 22, 1991, Virgil L. Morgan, Superintendent of Schools, filed with the Broward County School Board a Petition for Dismissal seeking to dismiss Respondent Kathleen Leslie from her employment with the School Board.

Respondent timely requested a formal hearing regarding the allegations contained in that Petition, and this cause was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of Kimberly Murray; William Dandy; John Quercia; James M. Rockett; Richard Cupo; Mary Jane Turner; Charles Smith, Jr.;

Cyndee Zeck; Rebecca McMahan; Eleanor Nadeau; Thomas P. Larkin; Lindsay Wallace; Sara Mowery; Jennifer Paulley; Judith Launer Cianci; and Thomas P. Johnson.

Respondent Kathleen Leslie testified on her own behalf and presented the testimony of Mark Seigle, Damian Huttenhoff, and Robert Morgan, Jr.

On November 24, 1992, the parties filed the 120 exhibits, some of which were composite exhibits, which were admitted in evidence during the final hearing. On October 6, 1993, the parties filed the deposition of Solomon Stephens which had been taken post-hearing on August 18, 1992, by agreement of the parties as part of the evidence in this cause. Lastly, on October 12, 1993, the parties filed a copy of the deposition of Respondent Kathleen Leslie taken on January 14, 1992, and admitted in evidence during the final hearing as Petitioner's Exhibit numbered 10.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent has been employed by the Broward County School Board since August 1, 1977. In June of 1981 she became the budget director for the school district and was subsequently re-appointed as the budget director, pursuant to a series of annual contracts, through June 30, 1991. On April 8, 1991, Respondent was given a notice of non-renewal which would result in her contractual employment concluding on June 30, 1991.

   
   

2. However, allegations of misconduct, specifically that Respondent had engaged in unlawful employment practices to exclude black applicants from employment positions within the budget office, were brought to the attention of William Dandy, the deputy superintendent, on January 16, 1991. Dandy immediately caused an investigation to be conducted by the School Board's special investigative unit. As a result of that investigation, Virgil L. Morgan, superintendent of schools, filed the subject Petition for Dismissal with the School Board seeking to terminate Respondent's employment as of June 9, 1991, three weeks before her annual contract expired.

   
   

3. In 1987 an Order was entered approving the settlement of a civil rights action which had been filed in federal court against the Broward County School Board. The settlement entered into recognized the under-representation of blacks as employees in the School Board's data processing department and in the budget office managed by Respondent. The settlement specifically required that those two departments hire qualified black applicants for employment in order to correct the under-representation in those departments. Immediately following the entry of that court order, then-superintendent Leary conducted a meeting with administrative personnel and specifically directed those with hiring responsibilities to comply with the court order.

   
   

4. Also following entry of the federal court order, associate superintendent Thomas P. Larkin, Respondent's immediate supervisor during her ten years as the budget director, ordered Respondent to hire qualified blacks for the next openings in her department. He specifically directed Respondent to comply with the federal court order and to find and recruit qualified blacks if that were necessary. On many occasions thereafter, Larkin again told Respondent to recruit qualified blacks and to hire them. Respondent understood the

   directive given to her both by then-superintendent Leary and by associate superintendent Larkin.

   
   

5. Over the ten-year period that Respondent served as the budget director, there were many vacancies and many persons were hired in the budget office for both clerical and professional positions. The absence of black employees in the budget office over that extended period of time was not accidental.

   
   

6. It was easy for staff members in the budget office to understand why only white persons worked there. Respondent was open and blatant in her dislike for black persons. She referred to specific black employees within the school system as being dumb and lazy. She told her staff that black teenage girls at a certain high school in Broward County got pregnant so that they could collect welfare. She voiced her opposition to a black person being nominated for membership on the board of a professional association by pointing out that there was already one black on the board and putting another on the board would degrade the association.

   
   

7. During her ten years as budget director, Respondent occasionally referred to black School Board employees as "niggers" or "black bastards" when talking to her budget office staff. She also made statements about "lily-white" neighborhoods and told her staff that she was not going to hire any more "blacks, southern baptists, gays, or pink cows".

   
   

8. Respondent made derogatory comments to her staff about specific black employees of the School Board in a blatant attempt to humiliate those employees. She told her staff that a certain employee had two strikes against him: one was that he was black, and the other was that he wanted to be called "Mr." After a budget office employee once told a story about a game show contestant responding to the clue word "doe" (a female deer) with the word "knob," Respondent began referring to black persons as "doe knobs".

   
   

9. Before Respondent became the budget director, she was employed in the School Board's management audits department where she supervised a black employee who voluntarily took a demotion and a paycut to be assigned to another individual rather than work for Respondent. Within a few weeks of that person's voluntary demotion, Respondent was re-assigned from management audits to the budget office. When that demoted employee heard that Respondent was being transferred, he told other School Board employees at lunch that, "I feel like such a fool." One of Respondent's subordinates in the budget office told her that story when it occurred. Thereafter, Respondent compelled that subordinate to relate the story numerous times over the years, particularly to new members of the budget office staff. It was understood by the staff that the story was told as an opportunity for Respondent both to degrade a black employee and to intimidate the new budget office employee.

   
   

10. Respondent openly stated to her staff that her boss wanted her to hire a black but that she would never consider having a black in her budget office. On one occasion after her supervisor Larkin told Respondent who then had a vacant budget analyst position that she needed to hire a qualified black applicant, Respondent instructed her subordinates to speed up the screening and interview process before the NAACP came after her and she was required to hire a black.

    
    

11. A list of 197 racial, ethnic, and sexual "jokes" was brought into the budget office by an unknown person. Respondent directed a secretary to make copies for everyone in the office. Respondent assembled the staff in the

    budget office conference room where she instructed the secretary to distribute copies to all present. Thereafter, Respondent sat there with her subordinates while she and they read aloud to each other "jokes" from the list. Most of those present were uncomfortable due to the nature of the "jokes" and considered Respondent's distribution of that list in the office setting to be unprofessional, inappropriate and demeaning.

    
    

12. The hiring process for professional positions within the budget office was a two-tiered procedure, depending upon the position and accompanying pay grade. The basic procedure began with a public advertisement for the position with a job description. Upon their receipt, the applications for employment for that position were submitted to Respondent to establish criteria for review during the screening process. The applications were then screened based upon the criteria, narrowing the list for interview purposes. Following the interviews, candidates were ranked in a numerical order from which an individual was selected for that particular position based upon the recommendation of the budget director.

    
    

13. The School Board has implemented policy 6Gx6-4011.13 governing employment for positions of pay grade 25 or higher. This policy, known as "target selection," covers administrative and supervisory positions and includes some of the budget analyst positions within the budget office. The screening process was based upon criteria established by Respondent, which culminated in a formal interview process in order to narrow the field to three candidates. The names of those three candidates were then submitted to the superintendent, together with Respondent's recommendation as to which of those candidates should be hired. Respondent's recommendation was followed in every instance.

    
    

14. This more stringent screening and interview process was not required for pay grade 24 and below. For those pay grades, Respondent, as the department administrator, developed the job description for the position, developed the criteria for screening applicants, and selected the winning applicant after the interview process.

    
    

15. There were a total of 18 budget analyst positions filled within the budget office from December 17, 1981, through April 17, 1990, of which 12 were pay grade 24 and below and, therefore, not subject to the target selection procedure. The employment procedures for all pay grades, however, were governed by equal opportunity and fair employment policies, implemented through personnel policy statements which required fair employment practices. These policies and procedures, along with the applicable state and federal laws governing hiring practices, were fully explained to Respondent by employees in the School Board's personnel department each time Respondent arranged to advertise a vacant position.

    
    

16. Respondent's pattern of eliminating applicants identified by her as potentially black individuals spanned her tenure as budget director and included her last hiring of a budget analyst in April of 1990. Respondent directed her subordinates involved in the screening process to eliminate applicants she suspected of being black, utilizing certain information on their applications or resumes. She directed her subordinates to eliminate persons who were born and/or educated in Jamaica or in the West Indies, who attended certain colleges or universities such as Florida A & M and Bethune-Cookman, who had belonged to recognized black fraternities or sororities, or who belonged to certain organizations such as the Black Accountants Association. One applicant was eliminated due to Respondent's stated belief that only black females would play

    basketball. On one occasion, Respondent expressed the difficulty in eliminating a black applicant who had made it to the interview process.

    
    

17. Respondent specifically directed her subordinates who were screening applications to manipulate the criteria when necessary to eliminate black applicants. Sometimes those interviewed were allowed to have a bachelor's degree with a major in accounting or a related field, and sometimes those interviewed were required to have bachelor's degrees with only a major in accounting. Sometimes Respondent would establish a criterion that the applicant's degree must have been received within two years, sometimes three years, sometimes four years, and sometimes there was no "recency" requirement. She directed the elimination of black applicants who held a master's degree in accounting, declaring them to be over-qualified, even though the minimum qualification for the position was a bachelor's degree. On one occasion, she established different minimum educational qualifications for applicants who were already employees of the School Board and applicants who were not, even though the official job description contained no such distinction regarding the type of degree held.

    
    

18. In April of 1990, Respondent conducted an informal vote among her staff to select an individual from those who had successfully completed the interview process. The budget office staff voted unanimously for a female who was already employed within the school system because they were familiar with her and believed she would do an excellent job. Respondent rejected the staff's recommendation, however, stating she would hire a different applicant because she needed "to employ a white male in order to keep the salaries up."

    
    

19. Respondent also discriminated against black applicants for clerical positions in the budget office. The School Board's personnel department would screen those applicants and administer the proper testing. A list of those who qualified by testing would then be forwarded to Respondent for interviews. Respondent utilized an interview system for clerical applicants whereby each applicant was afforded a 30-minute interview. However, if the applicant "sounded black" on the telephone when the appointment for the interview was being made, then that applicant was only scheduled for a 15-minute interview.

    
    

20. Respondent's subordinates involved in the screening and interviewing processes followed Respondent's directives to eliminate suspected black applicants and did not report Respondent's discriminatory tactics to Respondent's superiors. They were fearful of losing their jobs and fearful of other retaliation by Respondent due to her vindictive nature. Respondent on occasion openly bragged about her successful retaliation against other employees who had complained about what she considered simply her management style. She created the impression that she was "untouchable".

    
    

21. Respondent was verbally abusive and demeaning to her staff. She referred to them as peons. She told one that he was "an asshole" for working overtime to complete an assignment. She removed the telephones from the offices of her professional staff for making personal phone calls during their lunch hour. She yelled, screamed, and cursed at them. When she wanted an employee to terminate employment, she took away that employee's duties, leaving that employee with nothing to do but feel worthless and isolated from the rest of the staff. The staff often wondered which of them would be Respondent's next target.

    
    

22. From June 15 until August 15, 1990, Respondent was on workmen's compensation leave due to a back injury. During her absence, her immediate

    supervisor, associate superintendent Larkin, became involved in the budget office's day-to-day activities due to the need to prepare for School Board approval the budget for the 1990-91 school year. Several of the staff members became more comfortable with Larkin as they worked together over that summer. They began telling him about the working conditions suffered by the budget office staff under Respondent's leadership. It became clear to Larkin that the morale problems in that office created poor productivity when Respondent was there, a situation that did not exist while Respondent was on workmen's compensation leave. He understood it would be necessary for administrators with authority over Respondent to become involved in resolving the poor working conditions Respondent had created in the budget office.

    
    

23. In July of 1990, Larkin told the two senior budget office staff members with whom he had worked most closely that summer that Respondent would be returning to work. They became upset and questioned how Larkin could allow her to return to her position as budget director. During that conversation, they also told Larkin that Respondent discriminated against blacks in the hiring process. Because of the serious nature of that accusation, Larkin told them they would have to document such an allegation in writing before he could commence an investigation. They did not.

    
    

24. When Respondent returned to work, William Dandy, the deputy superintendent, met with the entire budget office staff to discuss the morale problems that were affecting productivity in the budget office. Respondent was present, and the staff did not tell Dandy about her discriminatory hiring practices at that meeting.

    
    

25. By January 15, 1991, a secretary who had been hired while Respondent was on workmen's compensation leave and whose duties had been taken away from her by Respondent got "fed up" with what she considered an intolerable work environment and announced that she was going to speak to Mr. Larkin. The entire staff, except for one secretary, volunteered to go with her and did. They complained to Larkin about Respondent's interpersonal and management problems.

    
    

26. On January 16, 1991, deputy superintendent Dandy contacted several of the budget office staff and asked them individually if they had any knowledge that Respondent had engaged in discrimination in her hiring practices. Each of the individuals admitted to having such knowledge. They subsequently provided written statements to Dandy, who referred those statements to the special investigative unit. The ensuing investigation resulted in the notice of non- renewal of Respondent's annual contract and in the Petition for Dismissal filed in this cause.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

28. School Board policy 6Gx6-4009.3 provides that a non-instructional employee such as Respondent who fails or refuses to meet the standard requirements of her position shall be subject to termination. Termination, however, must be based upon just cause. School Board policy 6Gx6-4009.11 constitutes the code of conduct for its administrators and requires all administrators, such as Respondent, to operate their departments in accordance with applicable laws, policies, rules, and regulations or be subjected to disciplinary action. The evidence is overwhelming that Respondent has violated

    the code of conduct for administrators employed by the Broward County School Board and that the School Board has just cause for terminating her employment.

    
    

29. Pursuant to the authority contained in Section 230.22 (1) and (2), Florida Statutes, the School Board has enacted specific policies governing the recruitment and selection of personnel and requiring adherence to fair employment practices. Policies 6Gx6-4001 and 6Gx6-4001.1 specifically prohibit discrimination in hiring based upon a person's race, national origin, or sex. Through her systematic elimination of applicants whom she suspected were black applicants by using illegal screening techniques, Respondent, throughout her tenure as budget director, willfully violated the School Board policies prohibiting such discrimination. Respondent's refusal to hire a black applicant, as further evidenced by her failure to do so year after year, constitutes a willful and intentional refusal to comply with a federal court order directing that the under- representation of black employees in the budget office be corrected. Similarly, Respondent's refusal to comply with the reasonable directives of her superiors who repeatedly ordered her to comply with the federal court order amounts to gross insubordination. The evidence is clear and convincing that there is just cause for the termination of Respondent's employment.

    
    

30. Respondent's racial and ethnic comments when referring to black persons were unprofessional, inappropriate, and outward manifestations of Respondent's racial bias. Such derogatory remarks constitute corroborative evidence that Respondent's insubordination was willful and intentional.

    Lastly, Respondent's frequent statements to her staff that she had no intention of following the orders of her superiors are sufficient to constitute just cause for Respondent's termination.

    
    

31. Respondent argues that the evidence against her is part of a conspiracy to get her fired because her staff did not like her. Respondent has offered no credible evidence in support of her conspiracy hypothesis. Likewise, Respondent has offered no credible evidence to explain why she never hired a black applicant in either a professional or clerical position in the budget office as a result of the many vacancies that occurred during her ten-year tenure. Finally, Respondent has offered no evidence to suggest any steps she took to comply with the federal court order and her supervisors' orders that she hire a qualified black applicant for her next vacancy.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered:

1. Finding Respondent guilty of the allegations contained in the Petition for Dismissal filed against her;

   
   

2. Affirming the superintendent's suspension of Respondent;

   
   

3. Terminating Respondent from her employment with the Broward County School Board; and

   
   

4. Denying Respondent's claims for back pay, benefits, attorney's fees, and costs.

DONE and ENTERED this 25th day of October, 1993, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3863

1. Petitioner's proposed findings of fact numbered 2-5, 8, 9 and 11-33 are adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 6 and 7 are rejected as being unnecessary to the issues involved herein.

3. Petitioner's proposed finding of fact numbered 10 is rejected as being subordinate to the issues herein.

4. Petitioner's proposed findings of fact numbered 1, 34, and 35 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

5. Respondent's proposed findings of fact numbered 3, 95-97, 108, 128, 129, 140 and 153 are adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed findings of fact numbered 99, 114, 126, 137 and

   192 are rejected as being irrelevant to the issues under consideration in this cause.

7. Respondent's proposed findings of fact numbered 22, 26, 30, 56 and 75 are rejected as being unnecessary to the issues involved herein.

8. Respondent's proposed findings of fact numbered 138, 147 and 163 are rejected as being subordinate to the issues herein.

9. Respondent's proposed findings of fact numbered 1, 4, 5, 9, 33, 34, 37, 45, 52, 54, 57, 59-61, 70-74, 83, 85, 87, 101, 111, 130, 146, 156, 162, 167, 175, 178, 186, 195 and 198 are rejected as not being supported by the weight of the competent evidence in this cause.

10. Respondent's proposed findings of fact numbered 2, 6-8, 10-21, 23-25, 27-29, 31, 32, 35, 36, 38-44, 46-51, 53, 55, 58, 62-69, 76-82, 84, 86, 88-94, 98, 100, 102-107, 109, 110, 112, 113, 115-125, 127, 131-136, 139, 141-145, 148- 152, 154, 155, 157-161, 164-166, 168-174, 176, 177, 179-185, 187-191, 193, 194, 196, 197, and 199 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

COPIES FURNISHED:

Charles T. Whitelock, Esquire Whitelock, Soloff & Rodriguez, P.A. 1512 East Broward Boulevard, Suite 300 Fort Lauderdale, Florida 33301

Thomas F. Panza, Esquire Jan Marie Kelly, Esquire

Panza, Maurer, Maynard, Platow & Neel, P. A.

3081 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308

Virgil L. Morgan, Superintendent Broward County School Board

600 Southeast 3rd Avenue

Fort Lauderdale, Florida 33301-3125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-003863

Orders for Case No: 91-003863