STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03-2438

)

ALANA HOLLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case in West Palm Beach, Florida, on October 1, 2003, before Florence Snyder Rivas, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jean Marie Nelson, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

For Respondent: Alana Holley, pro se

2381 Southeast Federal Highway, Suite 6

Stuart, Florida 34994 STATEMENT OF THE ISSUE

Whether Respondent may be terminated for gross insubordination.

PRELIMINARY STATEMENT

By Petition for Suspension Without Pay and Dismissal dated May 8, 2003, the Palm Beach County School Board(Petitioner), notified Respondent, Alana Holley (Respondent or Holley) that her employment was terminated effective June 5, 2003, for gross insubordination, specifically, failure to complete a fitness for duty evaluation.

Respondent timely asserted her statutory and contractual rights to contest the termination.

At the final hearing, Petitioner presented the testimony of Respondent; Paul Lachance, director of professional standards; Susan Sheppard, employee assistance program provider; and Marcia Andrews, chief personnel officer. Petitioner's Exhibits 1 through 21 were received into evidence.

Respondent testified in her own behalf. Respondent's Exhibits 1 through 6 were received into evidence.

The two-volume transcript of the final hearing was filed on November 17, 2003. The parties' Proposed Recommended Orders were thereafter submitted and have been carefully considered in the preparation of this Recommended Order.

References to Sections are to the Florida Statutes (2002).

FINDINGS OF FACT

1. At all times material to this case, Holley was a kindergarten teacher assigned to Frontier Elementary School.

2. The evidence established, and Holley does not dispute, that at all times material to this case, Holley and Petitioner were parties to a collective bargaining agreement which provided that Petitioner may terminate an employee for gross insubordination, which is defined as a "willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and give by and with proper authority."

3. At the beginning of the 2002-2003 school year, Holley exhibited behavior which constituted reasonable grounds to question her present ability to perform her job. In such circumstances, the collective bargaining agreement authorizes Petitioner to direct the employee to cooperate in obtaining what is known as a fitness for duty evaluation.

4. The facts supporting the need for such an evaluation were appropriately documented during the first weeks of the school year, and Holley was assigned to her residence with pay on October 24, 2002.

5. Thereafter, on three separate occasions, Holley was directed in writing by Respondent's duly-designated representative, chief personnel officer, Marcia Andrews (Andrews) to report for and to complete the evaluation. The first of Andrews' letters was dated November 18, 2002. It

   advised Holley that failure to comply with this directive "will be viewed as insubordination."

6. Holley went to the fitness evaluation which had been scheduled for her at a reasonable time upon reasonable notice. However, Holley refused to fully cooperate with the examiner, rendering it impossible for the examination to be completed.

7. Andrews sent Holley a second letter, dated December 13, 2002. In this letter, Andrews reprimanded Holley for insubordination, and again directed her to cooperate in a fitness for duty evaluation. Again Holley did not comply.

8. By letter dated March 20, 2003, Andrews advised Holley that she would be given "one last opportunity" to fully cooperate and complete a fitness for duty evaluation. Again, Holley was advised that her failure to cooperate would be deemed insubordination and "will result in a recommendation to the School Board for your termination."

9. The aforementioned correspondence was punctuated by at least a half dozen conversations between Holley and Andrews in which Andrews implored Holley to cooperate with the evaluation. Andrews maintained Holley on the payroll long past the time it would have been justified to terminate Holley for insubordination.

10. Throughout the period of time she was assigned to home and again at the final hearing, Holley attempted to defend her

    failure to complete the fitness evaluation by leveling accusations of discriminatory and in some cases criminal behavior against various individuals employed by or otherwise affiliated with Petitioner. At least one of Holley's accusations of wrongdoing was made for the first time at her deposition, which was taken shortly before the final hearing in this matter.

11. At all times material to this case, Respondent's staff acted in good faith in giving Holley unlimited opportunity to corroborate her charges. She received a similar opportunity in these proceedings. Holley made no effort to corroborate her charges.

12. Instead, the record provides clear and convincing evidence that Holley was, in fact, grossly insubordinate. For months she disregarded, with no legitimate cause, a direct and entirely reasonable order to complete a fitness for duty examination. There is no evidence to suggest that Holley was treated any differently than any other teacher or employee would be treated in similar circumstances.

    CONCLUSIONS OF LAW.

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties.

    § 120.57(1), Fla. Stat.

14. Petitioner has established by clear and convincing evidence that Holley is guilty of gross insubordination warranting termination of employment for repeated and unjustified failure to fulfill her contractual obligation to honor a valid and reasonable request to cooperate with a fitness for duty evaluation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment.

DONE AND ENTERED this 31st day of December, 2003, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 31st day of December, 2003.

COPIES FURNISHED:

Jean Marie Nelson, Esquire Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

Alana Holley

2381 Southeast Federal Highway, Suite 6

Stuart, Florida 34994

Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406

Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

315 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: 03-002438

Orders for Case No: 03-002438