STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF ) MIAMI-DADE COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 00-0430

)

ANNET R. HODGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on October 20, 2000.

APPEARANCES

For Petitioner: Timothy A. Pease

The School Board of Miami-Dade County, Florida

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Joseph F. Lopez

250 Bird Road, Suite 302 Coral Gables, Florida 33146

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to terminate Respondent’s employment for gross insubordination, deficient performance, and conduct unbecoming a school board employee.

PRELIMINARY STATEMENT

By letter dated January 13, 2000, Petitioner informed Respondent that it intended to terminate her employment for just

cause arising out of Respondent’s gross insubordination, deficient performance, and conduct unbecoming a school board employee.

By Notice of Specific Charges filed March 2, 2000, Petitioner alleged that Respondent, who was employed as a school secretary, was subject to a collective-bargaining agreement between Petitioner and the United Teachers of Dade Labor Union. The Notice of Specific Charges alleges that the collective- bargaining agreement provides for termination of employment for just cause. The Notice of Specific Charges alleges that just cause includes gross insubordination, incompetency, and willful neglect of duty.

The Notice of Specific Charges alleges that Petitioner initiated proceedings to terminate Respondent’s employment for gross insubordination, deficient performance, and conduct unbecoming a school board employee. The Notice of Specific Charges alleges a series of conferences and warnings involving the following job deficiencies: failing to report to work on time, failing to answer the telephone, failing to comply with a supervisor’s directive to change desks, treating parents and other school board employees rudely and disrespectfully, and failing to attend a mandatory pre-disciplinary conference.

Count I of the Notice of Specific Charges alleges that Respondent’s job deficiencies constitute just cause for termination because they reflect conduct that is inconsistent

with School Board Rule 6Gx13-4A-1.21 requiring that employees conduct themselves in their employment in a manner that will reflect credit upon themselves and the school system.

Count II of the Notice of Specific Charges alleges that Respondent’s job deficiencies constitute just cause for termination because they reflect deficient performance and nonperformance of job duties.

Count III of the Notice of Specific Charges alleges that Respondent’s job deficiencies constitute just cause for termination because they reflect gross insubordination, as defined in Rule 6B-4.009(4), Florida Administrative Code.

Respondent requested a formal hearing.

At the hearing, Petitioner called four witnesses and offered into evidence 24 exhibits: Petitioner Exhibits 1 and 5-27.

Respondent called one witness and offered into evidence no exhibits. The Administrative Law Judge admitted the collective bargaining agreement between Petitioner and the United Teachers of Dade as Administrative Law Judge Exhibit 1. With leave of the Administrative Law Judge, Petitioner filed the transcript of a post-hearing deposition taken of Carolyn Bonner, who could not attend the hearing due to illness. All exhibits, including the late-filed deposition transcript, were admitted.

The court reporter filed the Transcript on December 1, 2000.

FINDINGS OF FACT

1. Petitioner employed Respondent continuously from December 6, 1993, through her termination on January 12, 2000. During her entire term of employment, Respondent was employed as a Secretary II.

2. Respondent has a bachelor of science degree in marketing and business from Liberty University in Virginia. Prior to her employment with Petitioner, Respondent had worked as a secretary, including at Florida National Bank and, while living out-of- state, First Pennsylvania Bank.

3. Respondent described her work with Petitioner as enjoyable. She testified that it involved word processing, answering the telephones, and filing.

4. Respondent’s initial assignment was to provide clerical support for exceptional student education. This work required, among other things, considerable speaking on the telephone to coordinate the work of district-office workers with the various schools that they served and typing of school psychological reports concerning students.

5. Repeatedly, Respondent demonstrated problems with accurate and timely typing of school psychological reports, declined to take school-related telephone calls from the switchboard, and reported to work late. When her supervisor conducted an informal conference, Respondent explained that she was often late to work due to a conflicting school schedule of

   her child, so the supervisor agreed to start Respondent’s workday one-half hour later.

6. When Respondent’s tardiness did not improve, the supervisor had a formal conference for the record (CFR). At the CFR, which took place on February 27, 1995, the supervisor warned Respondent that she must report to work on time and do her job while at work.

7. During this period, Respondent would be late 10-15 times within a 20-day pay period. These occasions of tardiness were substantial, not a couple of minutes, but 30-40 minutes. Even after the supervisor postponed Respondent’s starting time, Respondent continued to report to work late.

8. During this period, Respondent resisted answering the phone and typing. The supervisor had one primary typist, whose typing speed was considerably better than the typing speed of the other secretaries, so the supervisor directed her to do nothing but type school psychological reports. The supervisor directed the other three or four secretaries, of whom Respondent was one, to type school psychological reports when time permitted and to answer the telephone to assist district-office field workers, school personnel, and parents. Respondent resisted this dual assignment.

9. The supervisor could not recall having another CFR for any other employees during the period that she supervised Respondent. Shortly after the February 27 CFR, Respondent’s

   supervisor transferred to a different area and did not have further contact with Respondent.

10. Respondent’s new supervisor also had problems with Respondent’s job performance. On June 23, 1998, the supervisor completed a written evaluation of Respondent’s job performance and rated her unsatisfactory in knowledge (specifically, ability to communicate effectively) and interpersonal skills (specifically, positive relationship with the public and harmonious relationship with the staff). The overall performance rating was unsatisfactory with the following note: “Additional opportunities will be provided to Annet to improve her interpersonal skills that interfere with the day-to-day operations of the office. If not successful, stronger measures will be taken.” Protesting the inaccuracy of the evaluation, Respondent refused to sign the form.

11. The new supervisor had observed Respondent’s communications with parents on the telephone and staff in the office. Respondent was often rude with parents, so the supervisor talked to her about how to answer the telephone, giving her suggestions for improvement.

12. Respondent’s relationship with her coworkers suffered from her disruptive behaviors, such as loud singing and talking. At one point, Respondent’s relationship with one coworker had so deteriorated that it became necessary for her supervisor, in September 1998, to direct Respondent to change desks. However,

    when directed to change desks, Respondent refused, forcing her supervisor to reduce the directive to writing.

13. About four months later, to give Respondent a fresh start elsewhere, her supervisor facilitated Respondent’s transfer to a school that served as a center for exceptional student education. The supervisor did not fill the vacancy in the district office created by the transfer, nor did she fill an existing vacancy at the school; essentially, the supervisor merely transferred the physical location of Respondent’s job position.

14. By memorandum dated January 12, 1999, Respondent’s supervisor advised Respondent of the transfer and her new duties, which again included typing school psychological reports. The memorandum also informed Respondent that her workday hours would remain 8:00 a.m. to 4:30 p.m. with lunch from 12:30 p.m. to 1:30

    p.m. and breaks starting at 10:15 a.m. and 3:00 p.m.

    
    

15. About one week after Respondent reported to the school for her new assignment, the principal gave her a written schedule showing Respondent’s hours as 8:00 a.m. to 4:30 p.m. with one hour for lunch and 15-minute breaks starting at 10:00 a.m. and 2:30 p.m. The schedule also assigned tasks to be performed during different times of the day. These tasks included typing, filing, telephone work, and assisting parents, staff, and students. These tasks included one block of two hours and fifteen minutes devoted to performing district-office tasks, but

    while remaining at the school to which Respondent had just been reassigned.

16. Respondent was dissatisfied with her new assignment, preferring to work at the district office where she had been assigned. Respondent’s new supervisor, the school principal, noticed immediately that Respondent had trouble interacting appropriately with staff and parents, typing school psychological reports accurately, and answering the telephone when it rang.

    The principal corrected Respondent’s style of answering the telephone, informing her that she was to identify the school and herself, offer assistance, and offer to take a message if the person being called is not available. Instead, the principal heard Respondent repeatedly deal with callers brusquely, such as by stating, “They’re not in the office. Call back later.” While at the switchboard, Respondent repeatedly sent callers to the wrong extension.

17. On April 15, 1999, the principal had a CFR with Respondent. The next day, the principal gave Respondent a written memorandum reflecting their discussions. The memorandum identifies nine specific areas of Respondent’s job performance, to which the principal expressed serious concerns. For each of these areas, the memorandum supplies a detailed list of behaviors and actions to do and not to do. For example, the form directs Respondent to speak with others pleasantly, politely, and professionally--not argumentatively, sarcastically, or

    caustically. Another item directs Respondent to spell check and proof read all typed materials--not submit uncorrected typed materials. Another item directs Respondent to remain engaged in work while at work--not doodle, read magazines, or make personal telephone calls while at work.

18. The memorandum documents informal conversations on February 4 and March 17 between the principal and Respondent in which the principal had already counseled Respondent about her rudeness and idleness, including one conversation in which the principal noted, “You had to be told in excruciating detail how to perform the most mundane of tasks.”

19. The memorandum notes that Respondent had characterized the principal’s assessment of her work as unfair, and the principal had warned her that a failure to improve her job performance and her relationships with staff and parents would jeopardize her future employment with Petitioner. The memorandum notes that the CFR of the preceding day had ended with the comment from Respondent: “If you need to let off steam you need to find another way to do it. This is ridiculous.”

20. During this period of time, Respondent had informed the principal that it was not Respondent’s job to proofread the material that she typed and, thus, she would not spell check these documents. On at least one occasion, Respondent mistyped a form, confusing the specific learning disability and severely emotionally disturbed classifications of exceptional students.

    During one month, every single item that Respondent typed had to be returned to her for corrections--at least once and sometimes more than once.

21. Respondent resisted the principal’s criticisms by telling the principal to "get a life" and that the principal did not know what she was doing. In front of one parent, Respondent said that the mother should be doing a better job with the child. Many of Respondent’s statements of these types to supervisors, coworkers, and parents were made in the presence of students.

22. The principal found Respondent repeatedly not working or reading a magazine when she had work to do. In response, Respondent would assert that she had not been told to do anything, and the principal each time reminded her that there was always filing to be done. At least four times over two months, the principal found Respondent on a personal call while parents or students were waiting for her to take care of their needs.

    One time, when the principal asked her if she could break off the call and take care of the people waiting, Respondent merely shrugged her shoulders and rolled her eyes, not responding whether the call was an emergency and leaving the principal to deal with the waiting parent.

23. One morning, the principal walked into the office and observed the registrar working with the parent and the telephone start to ring. The registrar asked Respondent to answer the phone, but she did not. After the third ring, the principal

    answered the phone. Another time, the registrar was busy at the counter with a parent when she was summoned to the telephone.

    After a few moments, the registrar put the caller on hold and asked Respondent to remove an item from the mail because the mail room attendant was approaching. Refusing to comply with the request, Respondent told the registrar, “I didn’t put it in there. I’m not taking it out.”

24. A distinct act of insubordination took place after the April 15 CFR and April 16 memorandum. On this morning, the principal entered the office and found the staff extremely busy, such as obtaining materials for teachers. Respondent was issuing admission slips for tardy arrivals. The telephone was ringing, and staff was juggling their other activities as best they could while still answering the phone. However, Respondent, although seated next to the switchboard, was not answering the phone at all. When the principal asked her to answer it, Respondent loudly replied, “Do you think I can do two things at once?” The whole office became quiet, as a teacher answered the telephone. The principal directed Respondent to start answering the phone, but four more calls came in, and Respondent refused to answer them.

25. More memoranda followed. On May 25, 1999, the principal provided Respondent a detailed memorandum with an evaluation. The memorandum covers the same items already discussed. The evaluation is unsatisfactory in every major

    category. A memorandum dated May 27, 1999, accompanying a CFR of the same date, discusses, among other things, the telephone incident described in the preceding paragraph and reemphasizes that Respondent is the first person responsible for answering the telephone.

26. Another CFR took place on June 9 with another memorandum dated the next day at which the same issues are discussed. The principal provided Respondent with a detailed list of recorded deficiencies, prescriptive means by which to correct them, recommended resources, and deadlines. The principal extended the deadlines for performing fairly undemanding tasks, but Respondent declined to perform them.

27. At the start of the 1999-2000 school year, Respondent routinely came to work late. She was late every day in September, rarely arriving less than 30 minutes late and once over one hour late. On Monday, October 4, 1999, the principal provided Respondent with a memorandum documenting the days and extent of her tardy arrivals. The memorandum documents a discussion between the principal and Respondent on the preceding Friday, October 1.

28. The memorandum notes that Respondent claimed to have changed her schedule, on her own authority, and the principal had informed her that the principal, not Respondent, had the sole authority to set her schedule. The memorandum documents that the principal had suggested that Respondent follow established

    procedure to change her starting time, but, until and unless the principal changed the time, Respondent was to report to work at 8:00 a.m., as she was always required to have done, on the following Monday, October 4. The memorandum notes that Respondent responded that she had to take her daughter to school and would not be reporting to work at 8:00 a.m. The memorandum documents that, on the morning of Monday, October 4, Respondent called in at 8:40 a.m. saying she had had car trouble and would be late; she arrived at 9:15 a.m.

29. On October 5, the principal conducted another CFR and issued another memorandum, dated October 5. Respondent did not report to the CFR when directed, and the principal had to have her assistant principal get Respondent. After initially declining to attend, Respondent appeared at the CFR, 15 minutes late. When the principal asked Respondent to take a seat, she replied that she would prefer to stand, and did so. Disputing the date set for the CFR, Respondent stated that she would not remain. At the conference, the principal read Respondent the following definition of gross insubordination or willful neglect of duties: “a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.”

30. Respondent unsuccessfully attempted to change her schedule to postpone her starting time to 8:30 a.m. Respondent was late to work every day from September to January. Each day,

    she would leave work at 3:40 p.m. to pick up her daughter and return to work late, usually at 4:05 or 4:10 p.m. However, when the principal offered to shorten her day by one-half hour, so as to allow her to leave work one-half hour earlier, Respondent refused to shorten her lunch.

31. On October 6, 1999, the principal issued Respondent a reprimand for failing to finish her prescriptive activities within the extended deadlines. Giving her until October 26 to complete them, the reprimand warns: “Failure to comply with this directive will constitute gross insubordination and may lead to further disciplinary action.”

32. On October 7, the principal sent her assistant principal to summon Respondent to the principal’s office to provide Respondent with the above-described documents. Respondent refused to come. The principal approached Respondent and asked her to come to the principal’s office, but Respondent

    replied that she had no intention of reporting to the principal’s office ever again and the principal was harassing her. The next day, Respondent did not report to work.

33. When Respondent failed to meet the October 26 deadline, the principal issued a memorandum, dated October 28, citing her for gross insubordination. This memorandum effectively marked the end of the principal’s involvement with Respondent. Overall, Respondent’s repeated insubordination and carelessness had undermined the morale among staff at the school. The principal

    found it hard to assign work to other secretaries, who rightly felt that they were carrying Respondent’s load. The atmosphere in the office became strained.

34. The principal could not possibly have done anything more to help Respondent do her work. It was not an issue of ability, but of a lack of effort and refusal to make the effort. At one point, Respondent told the principal that she found it demeaning to be told to file and answer the telephone given her high-level skills.

35. Attempts by the district office to conduct CFRs were met by Respondent’s defiance: she did not attend any of the three scheduled meetings. By letter dated January 13, 2000, Petitioner suspended Respondent, effective January 12, 2000, and initiated this proceeding to terminate Respondent’s employment.

36. Respondent is subject to the Contract between Petitioner and the United Teachers of Dade (Contract). Contract Section 3.D provides that Petitioner may terminate a covered, noninstructional employee, such as Respondent, for “just cause.” Section 3.D defines “just cause” as including: “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 Rule 6B-4.009.”

37. Petitioner has proved that Respondent is guilty of gross insubordination.

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

39. Sections 447.209 authorizes Petitioner to take disciplinary action against its employees for “proper cause.” Section 230.23(5)(f) authorizes Petitioner to dismiss its employees. As cited above, the Contract provides for the termination of Respondent for “just cause,” including gross insubordination and willful neglect of duties.

40. Petitioner must prove the material allegations by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

41. Petitioner has proved that Respondent is guilty of gross insubordination. Respondent repeatedly refused to perform the basic tasks that formed the justification for her job. Without regard to her performance of the prescriptive activities, Respondent repeatedly refused to perform work that she considered beneath her, even though these assignments formed the entirety of the set of tasks required of the position for which she applied and for which she was hired. Ultimately, Respondent refused even the most basic requests, such as appearing in her principal’s office or the district office. Respondent’s insubordination was not isolated, but systemic, and, as such, systematically undermined the relationships that must be maintained among staff

    and between staff and parents and students in order for Petitioner to deliver educational services effectively.

42. It is unnecessary to consider the remaining grounds for termination of Respondent's employment.

RECOMMENDATION

It is

RECOMMENDED that The School Board of Miami-Dade County, Florida enter a final order terminating Respondent’s employment.

DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 7th day of December, 2000.

COPIES FURNISHED:

Roger C. Cuevas, Superintendent The School Board of Miami-Dade

County, Florida

1450 Northeast Second Avenue Room 912

Miami, Florida 33132-1308

Timothy A. Pease

The School Board of Miami-Dade County, Florida

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Joseph F. Lopez

250 Bird Road, Suite 302 Coral Gables, Florida 33146

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-000430

Orders for Case No: 00-000430