STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

CYNTHIA L. KITCHEN,

Respondent.

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) Case No. 06-1207

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 1, 2006, in Fort Myers, Florida, before Lawrence P. Stevenson, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916 For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Petitioner may terminate Respondent's employment as a custodian, based upon the conduct alleged in the Petition for Termination of Employment.

PRELIMINARY STATEMENT

On March 7, 2006, Petitioner, Lee County School Board (the "School Board"), filed a Petition for Termination of Employment (the "Petition") on Respondent setting forth the allegations justifying the termination of Respondent's employment as a custodian. The Petition specifically charged that Respondent "acted in an insubordinate and threatening manner towards her supervisor." On March 30, 2006, Respondent filed a letter contesting the charges and reciting her version of the events at issue, but failing to expressly request a formal hearing. The School Board's counsel contacted Respondent and confirmed that Respondent wanted a formal hearing. On April 4, 2006, the School Board voted to suspend Respondent without pay and benefits pending termination of her employment. On April 7, 2006, the School Board referred the matter to the Division of Administrative Hearings ("DOAH") for the assignment of an Administrative Law Judge and the conduct of a formal hearing.

This matter was scheduled for final hearing on June 1, 2006. The School Board was present and prepared to proceed with the hearing. Respondent did not appear and did not contact the offices of either the School Board or the undersigned to explain her absence. The hearing was delayed for twenty minutes to give Respondent every opportunity to appear, after which the hearing was convened and the School Board put on its prima facie case.

At the hearing, the School Board presented the testimony of Susan Caputo, the principal of Rayma C. Page Elementary School ("Page Elementary") in Fort Myers. The School Board's

Exhibits 1 through 12 were admitted into evidence.

On June 2, 2006, an Order to Show Cause was issued, granting Respondent a period of ten days in which to show cause, in writing, why she did not appear at the scheduled hearing.

Respondent did not respond to the Order to Show Cause. On June 26, 2006, an Order Closing Record was entered, providing that the recommended order in this case would be based on the record established at the June 1, 2006, hearing and that

proposed recommended orders would be due within ten days of that order. Also on June 26, 2006, the School Board filed a motion to extend the time for filing proposed recommended orders, which was granted by order dated July 7, 2006.

No transcript of the hearing was ordered. The School Board filed its proposed recommended order on July 12, 2006, within the time provided by the order granting extension. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made:

1. The School Board is the governing body of the local school district in and for Lee County, Florida.

2. Respondent's relevant employment with the School Board began on September 15, 2005, when she commenced employment as a custodian at Page Elementary. Respondent's employment with the School Board is governed by the collective bargaining agreement between the School Board and the Support Personnel Association of Lee County (the "SPALC Agreement").

3. Susan Caputo, the principal of Page Elementary, hired Respondent on September 15, 2005. On October 7, 2005,

   Ms. Caputo met with Respondent to discuss her concerns regarding Respondent's pattern of absenteeism from work. In a letter to Respondent dated October 10, 2005, Ms. Caputo listed the following instances of absenteeism and/or tardiness:

   To date:

   • You had an appointment at the District Office. The expectation was that you would work in the afternoon. You called me at 6:20 p.m. to say you were not coming to work.

   • Monday, October 3, you called to say you had car problems, which you had known about since the previous Saturday, and could not come in. I told you this would leave us shorthanded causing increased work load.

     You did report to work 1 hour late.

   • Wednesday, October 5, you did not come to work citing car problems.

     
     

     Respondent signed the letter to indicate receipt, and the letter was placed in Respondent's personnel file.

4. Ms. Caputo met with Respondent on November 22, 2005, regarding her concerns about Respondent's unsatisfactory job performance. In a letter to Respondent dated November 28, 2005, Ms. Caputo listed the following problems with Respondent's job performance:

   • The kindergarten bathrooms which are part of your regularly assigned schedule were not cleaned nor were the group bathrooms outside the cafeteria.

   • The courtyard floor outside the cafeteria has not been swept or mopped properly.

     Please follow the steps cleaning the courtyard as reviewed by the Building Supervisor when you were first hired.

   • The media center must be cleaned daily and has been cleaned only twice a week. The garbage has not been emptied in the skills lab. Dust is accumulating in both areas.

   • Stage area is to be swept three times a week.

     
     

     The letter went on to reiterate the proper steps for cleaning the courtyard and the restrooms, as set forth in the custodial checklist that the building supervisor had already given to Respondent. Respondent signed the letter to indicate receipt, and the letter was placed in Respondent's personnel file.

5. Ms. Caputo met with Respondent on December 14, 2005, regarding Respondent's unsatisfactory job performance. In a letter to Respondent dated December 19, 2005, Ms. Caputo set forth the following summary of the items discussed at the meeting:

   On my weekly check of classrooms, I noticed the computers in the kindergarten classrooms were dusty. I also told you that I had received a complaint from teachers about dust on computers in their classrooms. This is part of your weekly duties. As I stated in our previous meeting on November 22 and my letter to you on November 28, I continue to have concerns about your job performance and attendance.

   
   

   In addition I have concerns about insubordination. Following our meeting, you left my office, made a loud screaming sound outside my door and pounded your fist. A staff member witnessed you slamming the school door and cafeteria table benches.

   These behaviors are unacceptable.

   
   

   This letter was placed in Respondent's personnel file. A copy of the letter was forwarded to the School Board's district office. Ms. Caputo testified that she was not able to give the letter directly to Respondent because of an incident that occurred on Monday, December 19, 2005, that led to Respondent's suspension.

6. Ms. Caputo testified that Monday, December 19, 2005, marked the beginning of the school's winter break. She had given instructions that the classrooms were to be cleaned by the previous Friday, so that the custodial staff could concentrate on the hallways during the following week.

7. At about 10 a.m., Ms. Caputo observed Respondent cleaning a room in the kindergarten hallway. Ms. Caputo approached to ask Respondent why the room had not been cleaned

   on the previous Friday. Respondent told Ms. Caputo that she was just "finishing up," but Ms. Caputo could see that the room had not been cleaned at all.

8. Ms. Caputo then inspected other rooms. She found that the classrooms had not been vacuumed and the bathrooms smelled of urine. Respondent then admitted that the only thing she had done on Friday was take out the trash, but also became angry and walked away from Ms. Caputo.

9. Ms. Caputo told Respondent that her actions were unacceptable. Respondent became confrontational and screamed in Ms. Caputo's face. Adam Werner, the building supervisor, stepped between the two women out of concern for Ms. Caputo's safety.

10. Respondent continued to shout at Ms. Caputo, who remained calm and told Respondent that she just needed to do her job. Ms. Caputo then turned to walk away from Respondent, who picked up and flung a rubber doorstop in the principal's direction. As the doorstop fell near her foot, Ms. Caputo heard Respondent scream, "God forgive her." Respondent then walked away.

11. Head custodian Jack Colleli, librarian Jane Garland, and Mr. Werner witnessed the incident. Each of these witnesses provided the School Board with written statements corroborating

    Ms. Caputo's testimony. Ms. Garland described Respondent's tone as "demeaning, degrading, and somewhat frightening."

12. Ms. Caputo and Respondent had no further interaction after this incident. Ms. Caputo contacted the School Board's office of professional standards, equity, and recruitment to report the incident. Ms. Caputo testified that under no circumstances would she re-hire Respondent.

13. On December 19, 2006, Superintendent James W. Browder suspended Respondent with pay and benefits pending the outcome of the School Board's investigation of the incident. The Petition and suspension without pay and benefits followed as set forth in the Preliminary Statement above.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1012.40(2)(c), Florida Statutes (2005).

15. The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining Respondent. See, e.g., McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen

    v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA

    1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

16. As a custodian, Respondent is an "educational support employee" as defined by Subsection 1012.40(1)(a), Florida Statutes (2005).

17. Subsection 1012.40(2)(b), Florida Statutes (2005), provides that educational support employees such as Respondent may be terminated only "for reasons stated in the collective bargaining agreement."

18. The SPALC Agreement provides that any discipline "that constitutes a reprimand, suspension, demotion or termination shall be for just cause." SPALC Agreement at Section 7.09. The SPALC Agreement does not define "just cause" or provide for a plan of progressive discipline.

19. In a previous case, the School Board adopted the following Conclusions of Law, which is hereby adopted as the rule for the instant case:

    27. The School Board construes "just cause" in [then] Section 7.094 of the SPALC Agreement in the same manner as that phrase is used in Section 1012.33 relating to instructional staff. That statute provides in pertinent part that:

    
    

    Just cause includes, but is not limited to, the following instances, as defined by rule

    of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful

    neglect of duty, or conviction of a crime involving moral turpitude.

    
    

    Section 1012.33(1)(a). See also

    Rule 6B-4.009 (defining the terms used in Section 1012.33(1)(a)).

    
    

    Lee County School Board v. Simmons, Case No. 03-1498 (DOAH

    
    

    July 15, 2003) (adopted in toto by Final Order dated August 12, 2003). See also Lee County School Board v. Kehn, Case

    No. 04-1912 (DOAH February 21, 2005) (adopted in toto by Final Order dated March 10, 2005).

20. Florida Administrative Code Rule 6B-4.009(4) defines "misconduct in office" as "a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system."

21. Florida Administrative Code Rule 6B-1.006(4)(d) provides, in relevant part, that an individual's obligation to the public requires that the individual "shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment. "

22. The School Board met its burden to prove that it has "just cause" to terminate Respondent's employment for misconduct in office. Respondent's conduct following her meeting with Ms. Caputo on December 14, 2005, and her subsequent conduct when approached by Ms. Caputo on December 19, 2005, clearly constitute misconduct in office that, at the least, created a hostile, intimidating, abusive or offensive work environment. Respondent screamed and pounded her fist outside Ms. Caputo's office on December 14. On December 19, Respondent lied to Ms. Caputo about the status of her work, then screamed in her superior's face and threw a rubber doorstop in her direction when caught out in her lie.

23. Ms. Caputo reasonably testified that she would not have Respondent back as an employee at Page Elementary. Given Respondent's repeated acts of gross insubordination, provoked only by her superior's requests that she do her job, the School Board should not be saddled with the task of finding Respondent a more amenable work environment. Under all the facts and circumstances discussed above, termination is appropriate in this case.

RECOMMENDATION

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

RECOMMENDED that Petitioner, the Lee County School Board, issue a final order that terminates the employment of Respondent, Cynthia L. Kitchen.

DONE AND ENTERED this 25th day of July, 2006, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 25th day of July, 2006.

COPIES FURNISHED:

Robert Dodig, Jr., Esquire Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

Cynthia L. Kitchen

145 Riverview Road

Fort Myers, Florida 33905

Daniel J. Woodring, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. James W. Browder, III, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3988

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: 06-001207

Orders for Case No: 06-001207