STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHNS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4735

)

ANNA I. OQUENDO, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on February 28, 1997, in St. Augustine, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dennis K. Bayer, Esquire

Attorney at Law

306 South Oceanshore Boulevard (A1A) Post Office Box 1505

Flagler Beach, Florida 32136

For Respondent: Anna I. Oquendo, pro se

21 Madeore Street

St. Augustine, Florida 32084

STATEMENT OF THE ISSUES

The issues in this case are whether Petitioner should discharge Respondent from her employment because of misconduct, gross insubordination, and willful neglect of duty that impaired Respondent's effectiveness as Petitioner's employee.

PRELIMINARY STATEMENT

On August 30, 1996, the Superintendent of the St. Johns County School Board (the "Board") filed a Petition asking the

Board to discharge Respondent from her employment. Respondent timely requested a administrative hearing on August 9, 1996.

At the hearing, Petitioner presented the testimony of seven witnesses and submitted two exhibits for admission in evidence. Respondent testified in her own behalf, called one witness, and submitted two exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed with the undersigned on May 16, 1997. Petitioner timely filed its proposed recommended order ("PRO") on May 16, 1997.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the School Board of St. Johns County, Florida. Until September 12, 1996, Petitioner employed Respondent as a non-instructional employee. Respondent was a janitorial custodian.

2. Petitioner requested numerous employees, including Respondent and eight other custodians, to work on Saturday, August 24, 1996, at Nease High School. The purpose was to prepare the campus for the upcoming school year.

3. Mr. Jody Hunter, the coordinator of school-based maintenance and custodial services, asked all nine custodians, including Respondent, to stop what they were doing and to immediately remove all of the empty boxes from the classrooms. The boxes needed to be outside the buildings so that they could

   be collected for disposal and so that furniture could be set up in each classroom.

4. The crews in charge of collecting and disposing of the boxes and those in charge of furniture set-up were on precise schedules. The other maintenance tasks that needed to be performed by the custodians, including Respondent, could be performed at other times.

5. All of the custodians except Respondent complied with the instructions of Mr. Hunter. Mr. Hunter repeated the instructions to Respondent several times. Respondent insisted on working in accordance with her own schedule and priorities.

6. After a reasonable time, Mr. Hunter inspected the area for which Respondent was responsible. He found boxes in the area and saw Respondent walking down the hallway with a bag and supplies in her hand.

7. Mr. Hunter asked Respondent why she had not complied with his instructions. She stated that she did not like to start another job before she finished the first job.

8. Mr. Hunter repeated the need and the urgency of getting the boxes out of the area so that the other crews could stay on schedule. Respondent stated that she did not have to listen to Mr. Hunter because it was a Saturday and because he was not her supervisor. Respondent never removed the boxes in her area.

9. Mr. Hunter had several conversations with Respondent regarding her refusal to follow his instructions. Respondent became very loud and obstreperous during at least one of those

   conversations. Other employees heard Respondent from different areas of the campus.

10. Mr. Hunter conducted himself professionally during each of these conversations. During one of the conversations, Mr. Hunter requested Ms. Alice Powell, a teacher, to witness a portion of the conversation.

11. Respondent left work before completing her assigned duties. She refused to answer questions from Mr. Hunter as to where she was going or if she would return.

12. Respondent returned to the campus later in the day with her daughter. Respondent's daughter acted as an interpreter.

13. Through her daughter, Respondent asked Mr. Hunter to write down everything he had said to Respondent during the day. When Mr. Hunter refused, Respondent threatened to sue Mr. Hunter for "violating her rights."

14. Mr. Hunter asked Respondent to leave the premises. Respondent refused.

15. Respondent stated that Mr. Hunter had never dealt with Puerto Ricans before and that they take care of their own problems. Mr. Hunter asked Respondent if she was threatening him, and Respondent said, "yes."

16. Mr. Hunter telephoned Mr. Bill Mignon, the principal of the school. Mr. Mignon spoke to Respondent by telephone.

17. Mr. Mignon asked Respondent to leave the campus and to discuss the matter in his office on Monday. Respondent left the campus but did not keep her appointment on Monday.

18. Petitioner suspended Respondent with pay pending an investigation of the matter. Mr. Mignon and Mr. Clayton Wilcox, Petitioner's director of personnel, conducted an investigation into the matter. They interviewed witnesses, including Respondent, and reviewed written statements.

19. On September 12, 1996, the Board voted to suspend Respondent without pay. Respondent now has a full-time position with another employer.

20. Respondent was previously disciplined by Petitioner. In April, 1995, Petitioner verbally reprimanded Respondent for misusing time cards by leaving work and having another employee punch Respondent's time card at a later time. In May, 1996, Petitioner gave Respondent a written reprimand for taking excessive lunch breaks. In May, 1996, Petitioner issued a memorandum to Respondent for failing to comply with requirements for excused absences.

    CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

22. Petitioner has the burden of proof. Petitioner must show by a preponderance of the evidence that Respondent is guilty of the allegations in the Petition and the reasonableness of any penalty to be imposed. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977). Petitioner satisfied its burden of proof that Respondent is guilty of gross insubordination and willful misconduct that impaired her effectiveness as an employee.

23. Petitioner employed Respondent as an educational support employee within the meaning of Section 231.3605, Florida Statutes (1995) (all chapter and section references are to Florida Statutes (1995) unless otherwise stated). Section 231.3605(2)(b) provides, inter alia, that Respondent's employment shall continue from year to year:

    . . . unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement doe not exist. . . .

24. Petitioner failed to submit any evidence of the collective bargaining agreement applicable to this proceeding, if any. Petitioner also failed to cite any rules applicable to educational support employees. Thus, the record contains no evidence or cited authority of the definitions of misconduct, gross insubordination, or willful neglect that are applicable to educational support employees.

25. Courts have relied on statutes and rules applicable to instructional personnel to decide cases involving educational support employees. Smith v. School Board of Leon County, 405 So.2d 183, 184-185 (Fla. 1st DCA 1981). In Smith, the court relied on the regulatory definition of "gross negligence" in Florida Administrative Code Rule 6B-4.009(4) that applies in

    proceedings to dismiss instructional personnel to define "gross insubordination" in a proceeding to dismiss an educational support employee (unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code as of the date of this Recommended Order).

26. Gross insubordination requires proof of:

    . . . a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    Smith, 405 So. 2d at 185.

27. The statute that authorizes Petitioner to terminate Respondent's employment is penal in nature. Rosario v. Burke, 605 So.2d 523, 524 (Fla. 2d DCA 1992). It must be construed in a manner that is most favorable to the punished employee.

    Rosario, 605 So.2d at 524; Gainey v. School Board of Liberty County, 387 So.2d 1023, 1029 (Fla. 1st DCA 1980).

28. When the definition of "gross insubordination" is construed in a manner that is most favorable to Respondent, Respondent is guilty of gross insubordination. The instruction by Mr. Hunter for Respondent to stop what she was doing and to remove the boxes from her area was a direct order given by and with proper authority. Mr. Hunter was the coordinator of school- based maintenance and custodial services, and he was charged with responsibility for preparing the campus for the school year.

29. The order was reasonable in nature. It was dictated by the exigencies of the crews responsible for disposing of the

    boxes and setting up the classroom furniture. The reasons underlying the order were repeatedly explained to Respondent.

30. Respondent intentionally refused to obey a direct order. Her refusal was constant and continuing.

31. Respondent willfully neglected her duty after repeated opportunities to perform them. Respondent's actions impaired her effectiveness as an employee. Respondent has previously demonstrated gross insubordination and willful neglect of her duties and has received lesser discipline for her violations.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of gross insubordination and willful neglect of duty and terminating Respondent's employment.

RECOMMENDED this 13th day of June, 1997, in Tallahassee, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.

COPIES FURNISHED:

Dr. Hugh Balboni, Superintendent St. Johns County School Board

40 Orange Street

St. Augustine, Florida 32084

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Michael Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Dennis K. Bayer, Esquire Attorney at Law

306 South Oceanshore Boulevard (A1A) Post Office Box 1505

Flagler Beach, Florida 32136

Anna I. Oquendo, pro se

21 Madeore Street

St. Augustine, Florida 32084

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: 96-004735

Orders for Case No: 96-004735