STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

MARY CHUNG,

Respondent.

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) Case No. 04-2955

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RECOMMENDED ORDER

A formal hearing was conducted in this case on September 27, 2004, by video teleconference at sites in

Ft. Myers and Tallahassee, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Paul Carland II, Esquire

Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

For Respondent: Mary Chung, pro se

2147 Gulfside Village Drive Lehigh Acres, Florida 33972

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Mary Chung ("Respondent"), committed the alleged conduct and, if so, whether Petitioner, Lee County School Board ("School Board"),

has just cause to terminate her employment as a food service worker.

PRELIMINARY STATEMENT

By letter dated July 12, 2004, and Petition for Termination of Employment ("Petition") dated July 16, 2004, Respondent was notified that the superintendent of the Lee County School District ("School District") was recommending to the School Board that she be terminated from her position as a food service worker in the School District. According to the Petition, the basis for the proposed termination was that "On May 21, 2004, Respondent reported to work late and displayed gross insubordination toward her supervisor [and] her actions in this regard constitute just cause for her termination." Respondent challenged the proposed termination and requested a formal hearing.

The matter was forwarded to the Division of Administrative Hearings on or about August 19, 2004, for assignment of an Administrative Law Judge to conduct the hearing and prepare a recommended order. The matter was set for hearing, and this proceeding followed.

At hearing, the School Board presented the testimony of four witnesses: Carol Lewis, the food service manager at Lehigh Senior High School; Lucy Roan, a food service worker at Lehigh Senior High School; Linda Sapata, the food service manager at

Varsity Lake Middle School; and Georgianna W. McDaniel, director of Personnel Services for the School District. The School Board offered and had Petitioner's Exhibits 1 through 8 received into evidence. Respondent testified on her own behalf and offered no exhibits into evidence.

No transcript of the proceeding was ordered by the parties.

Accordingly, the parties were directed to file their proposed recommended orders within ten days of the date of the hearing. The School Board timely filed its Proposed Recommended Order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent is a food service worker at Lehigh Senior High School ("Lehigh") in Lehigh Acres, Lee County, Florida. She was employed in this capacity for the 2003/2004 school year.

2. Respondent was present for work at Lehigh on May 21, 2004. Respondent was scheduled to work from 6:15 a.m. to 2:15 p.m. on this date. This had been her work schedule all year.

3. On May 21, 2004, Respondent reported for work at least

   
   

   10 minutes late. She arrived at work at approximately 6:25 a.m.

   
   

   Respondent had not called in to notify anyone that she would be late to work that morning and did not advise or explain to her supervisor the reason for her tardiness. Accordingly, Respondent's tardiness on the morning of May 21, 2004, was not

   excused by her supervisor, Carol Lewis ("Lewis"), who was the food service manager at Lehigh.

4. Respondent and the other employees in the kitchen are given rotating assignments. They rotate to new assignments every two weeks. During the time period which included May 21, 2004, one of Respondent's responsibilities was to open cans of fruit. In accordance with her assigned duties, upon Respondent's arrival in the kitchen on May 21, 2004, Respondent began opening cans of fruit.

5. Lewis approached Respondent while she was opening the cans and directed her to take two coffee pots to the school's media center for a staff appreciation breakfast. It was not unusual for Lewis to direct workers to stop the tasks they were working on to attend to other tasks that needed to be done. In fact, other food service workers in the kitchen that morning were helping with preparations for the staff breakfast in addition to their other assigned tasks.

6. Respondent first ignored Lewis's request, and when directed again by Lewis to move the coffee pots, Respondent told a fellow employee, Lucy Roan ("Roan"), to move them.

7. Lewis overheard Respondent's remark to Roan and corrected her by saying that she wanted Respondent to move the pots.

8. Respondent then proceeded to where the pots were located and indicated to Lewis that she could not lift them onto the cart that she was to use to take them to the media center. According to Respondent, the reason she could not lift the coffee pots and place them on the cart was because of a problem with her foot. Lewis then put the coffee pots on the cart for Respondent and, again, directed Respondent to take them to the media center. When Lewis came back by the area a few minutes later, Respondent had still not taken the coffee pots to the media center. Lewis then directed Respondent to leave the school and said Respondent was fired.

9. Lewis reported the incident to Ronald E. Davis ("Davis"), the principal of Lehigh during the 2003-2004 school year and at the time of the incident.

10. Davis met with Respondent about the incident and gave her a written reprimand dated May 26, 2004. The reprimand was delivered to her on May 28, 2004. The reprimand indicated that Davis was also recommending that Respondent be dismissed.

11. Davis contacted Georgianna W. McDaniel, director, Personnel Services ("McDaniel"), regarding the May 21, 2004, incident. McDaniel advised the principal to forward documentation regarding the incident to Personnel Services. McDaniel has certain responsibilities with regard to employee discipline. She counsels supervisors and administrators

    regarding appropriate disciplinary action; she suspends employees (with pay) when recommended by the superintendent; and she acts as the predetermination conference administrator.

12. On or about June 1, 2004, Davis forwarded the May 26, 2004, letter of reprimand that had been given to Respondent to the School District's Personnel Services office. He also sent four written statements from the food service manager and three food service workers who were present in the kitchen when the incident involving Respondent occurred. These statements were written at Davis' direction

13. A predetermination conference was scheduled for July 2, 2004, to give Respondent an opportunity to respond to

    Davis' recommendation for her dismissal based upon the incident on May 21, 2004. Respondent was notified of the conference by McDaniel by certified letter dated June 23, 2004.

14. Respondent attended the predetermination conference and was given an opportunity to address the complaint filed by Davis. However, the matter was not resolved, and the School District superintendent recommended that Respondent's employment as a food service worker be terminated.

15. The School Board met on August 12, 2004, to consider the Petition. At that meeting, the School Board suspended Respondent without pay and benefits pending receipt of the recommended order of the Administrative Law Judge.

16. Prior to the May 21, 2004, incident, Respondent had experienced work-related problems and/or areas of concern while working as a food service worker. These problems had been discussed with Respondent and documented in her record.

17. On May 9, 2002, Respondent was put on Procedures for Improvement by her then assistant principal, James Buchanan. Procedures for Improvement is a tool used by the School District to notify employees of unacceptable conduct and to give them an opportunity to correct their behavior and desist in any further conduct of that nature.

18. In Respondent's case, the May 9, 2002, Procedures for Improvement noted the following specific deficiencies in Respondent's behavior: "Employee refused to leave area to discuss a problem/situation with the supervisor." The desired improvement in her behavior was: "1) Employee will interact appropriate [sic] with supervisor; 2) Employee when asked to go to an area by a supervisor will go, and follow any other directives by a supervisor; [and] 3) Employee will conduct herself properly with co-workers." Respondent was advised she could achieve this desired result as follows: "Employee will do what is told of her to do by a supervisor. Do the work that is assigned to her and complete it in a timely manner." Her success in reaching the desired result would be judged as follows: "No further incidents of refusing to go to a private

    area to talk out differences. Employee will have no other incidents with co-workers and supervisors."

19. Respondent was also notified in her 2003-2004 Performance Assessment that she was deficient in certain areas and that she needed to "focus" on the following areas in the future: "6) Is punctual in attendance; 8) Exhibits dependability; 11) Exhibits positive attitude; 14) Has good rapport with others; and 15) Accepts criticism constructively." Her supervisor also noted in the comments section that she: "Calls in sick or late too much. Not dependable at all — Gripes about others or duties." She also noted that as of the date of the Performance Assessment (March 2004), Respondent had been absent for 231 hours (or 33 days) and tardy 15 times.

20. Lewis prepared Respondent's 2003/2004 Performance Assessment. It was her responsibility as the food service manager to prepare an annual Performance Assessment for all the food service workers. Lewis prepared the Performance Assessment on March 24, 2004, and reviewed it with Respondent on March 30, 2004, the same date that Respondent signed the Performance Assessment.

21. As a food service worker, Respondent was considered a "10-month employee." She did not work during the summer months. Her last day of work for the 2003-2004 school year was Friday, May 28, 2004.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004).

23. As a food service worker, Respondent is an "educational support employee" as defined by Subsection 1012.40(1)(a), Florida Statutes (2004).

24. The superintendent has the authority to recommend to the School Board that any school employee be suspended and/or dismissed from employment. § 1012.27(5), Fla. Stat. (2004).

25. The School Board has the authority to terminate and/or suspend, without pay and benefits, any school employee, including educational support employees. §§ 1001.42(5)(a), 1012.22(1)(f), and 1012.40(2)(c), Fla. Stat. (2004).

26. The Support Personnel Association of Lee County ("SPALC") is the exclusive bargaining agent for educational support employees, such as Respondent. The terms and conditions of employment for employees in the unit applicable to this case are set forth in the SPALC 2003-2006 Collective Bargaining Agreement ("CBA") negotiated with the School District by SPALC.

27. An educational support employee who has successfully completed their probationary period can only be terminated for the reasons set forth in the CBA. § 1012.40(2)(b), Fla. Stat. (2004).

28. Pursuant to Section 7.09 of the CBA, the standard for discipline, including termination of educational support personnel, is "just cause."

29. The School Board has the burden of establishing just cause to terminate Respondent by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d

    476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990); see also § 120.57(1)(j), Fla. Stat. (2004).

30. The School Board has met its burden in this case and has established by a preponderance of the evidence that it has "just cause" to terminate Respondent's employment.

31. The evidence established that on May 21, 2004, Respondent was late for work. This was significant in that Respondent had just been advised in her Performance Assessment two months earlier that her "attendance" and "dependability" were areas in which she was performing at an unacceptable level. Respondent's supervisor stated very clearly in the Performance Assessment that Respondent was late "too much" and noted that she had been late/tardy to work at least 15 times from October of 2003 through March of 2004.

32. The evidence also demonstrated that Respondent was insubordinate on May 21, 2004. She did not immediately and unequivocally obey her supervisor's instruction to move two

    coffee pots to the media center for a staff breakfast. See Alachua County School Board v. Mosley, Case No. 97-1680 (DOAH February 3, 1998, Final Order April 10, 1998) (educational support employee/custodian recommended for termination where he failed to follow reasonable instructions from his supervisor(s) and was uncooperative); St. Johns County School Board v.

    Oquendo, Case No. 96-4735 (DOAH June 13, 1997, Final Order June 17, 1997) (educational support employee/custodian recommended for termination where she failed to stop what she

    was doing and remove boxes from her work area as directed by her supervisor).

33. In the instant case, Respondent's insubordination was compounded by the fact that she had been advised on at least two prior occasions that her attitude and responsiveness to authority figures were not acceptable. In 2002, Respondent was given written Procedures for Improvement for the very same attitude problem that she exhibited on May 21, 2004. She was advised that she was to follow the commands of her supervisor, including doing her assigned work without question. Likewise, her Performance Assessment for the 2003-2004 school year, conducted just two months before the incident in question occurred, noted that these were areas in which she needed to improve.

34. Respondent admitted at the hearing that she was late to work on May 21, 2004, and that she was "outspoken" in relation to Lewis' directives. However, Respondent implied that she questioned Lewis because Lewis provoked her by speaking to her in an angry manner. This argument is unpersuasive when viewed in light of Respondent's historical problems with her supervisor(s).

35. Respondent's conduct on May 21, 2004, constitutes "just cause" for terminating her employment as a food service worker with the School District.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the School Board enter a final order terminating Respondent's employment as a food service worker with the Lee County School District.

DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 3rd day of November, 2004.

COPIES FURNISHED:

J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

Mary Chung

2147 Gulfside Village Drive Lehigh Acres, Florida 33972

Dr. James W. Browder, III Superintendent of Schools Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

Honorable John Winn Commissioner of Education Turlington Building, Suite 1514

325 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: 04-002955

Orders for Case No: 04-002955