12-001557TTS Manatee County School Board vs. Yvonne B. Eisenberg
 Status: Closed
Recommended Order on Tuesday, January 29, 2013.


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Summary: Teacher yelled at and used profanity to assistant principal after directive regarding language, therefore suspension is appropriate.

1Case No. 12-1557TTS

4STATE OF FLORIDA

7DIVISION OF ADMINISTRATIVE HEARINGS

11MANATEE COUNTY SCHOOL BOARD, RECOMMENDED ORDER )

18)

19Petitioner, )

21vs. )

23)

24YVONNE B. EISENBERG, )

28)

29Respondent. )

31)

32)

33Pursuant to notice, this case was heard in Bradenton,

42Florida, on October 11, 2012, before J. D. Parrish, an

52Administrative Law with the Division of Administrative Hearings

60(DOAH).

61APPEARANCES

62For Petitioner: Erin G. Jackson, Esquire

68Thompson, Sizemore, Gonzalez

71and Hearing, P.A.

74201 North Franklin Street, Suite 1600

80Post Office Box 639

84Tampa, Florida 33602

87For Respondent: Melissa C. Mihok, Esquire

93Kelly and McKee, P.A.

971718 East 7th Avenue, Suite 301

103Post Office Box 75638

107Tampa, Florida 33605

110STATEMENT OF THE ISSUES

114Whether Respondent, Yvonne B. Eisenberg (Respondent),

120committed the violations alleged in the Amended Administrative

128Complaint filed on September 27, 2012, and, if so, what penalty

139should be imposed.

142PRELIMINARY STATEMENT

144This administrative action is a disciplinary case against

152an employee of Petitioner, Manatee County School Board (Board or

162Petitioner). The Board’s Superintendent of Schools recommended

169that Respondent be suspended without pay for three days based

179upon alleged conduct that occurred at Southeast High School.

188Respondent timely challenged the proposed action and the matter

197was forwarded to DOAH for formal proceedings on April 27, 2012.

208At the hearing, Petitioner presented the testimony of Shane

217Hall (Mr. Hall), Jane Toole (Ms. Toole), and Debra Horne.

227Petitioner’s Exhibits 2A, 2E, and 2F were admitted into

236evidence. Respondent testified in her own behalf and presented

245the deposition testimony of Frederick Leonard Johnson.

252Petitioner’s objection as to the relevance of Mr. Johnson’s

261testimony is overruled.

264The Transcript of the proceedings was filed with DOAH on

274October 30, 2012. An unopposed request to extend the time to

285file proposed orders was granted, and the parties were given

295leave until December 17, 2012, to file their proposals. Both

305parties timely filed proposed recommended orders that have been

314considered in the preparation of this Recommended Order.

322FINDINGS OF FACT

3251. Petitioner is a duly-constituted entity charged with

333the responsibility and authority to operate, control, and

341supervise the public schools within the Manatee County Public

350School District (School District). As such, it has the

359authority to regulate all personnel matters for the School

368District. See § 1001.32, Fla. Stat. (2012).

3752. Dr. Timothy McGonegal is the superintendent of the

384public schools for the School District. Dr. McGonegal has the

394authority to recommend suspension and/or termination of

401employees for alleged misconduct.

4053. At all times material to the allegations of this case,

416Yvonne B. Eisenberg was an employee of the School District

426assigned to teach profoundly mentally handicapped (PMH) students

434at Southeast High School.

4384. At all times material to the allegations of this case,

449Mr. Hall was an assistant principal at Southeast High School.

459Mr. Hall’s responsibilities included overseeing the exceptional

466student education (ESE) program at Southeast High School.

474Respondent’s PMH class fell within the purview of the ESE

484program. Ms. Toole, an ESE specialist at Southeast High School

494who is the ESE department chairperson, directly supervised

502Respondent’s class.

5045. PMH students require constant supervision and care.

512Respondent was assigned a full-time aide to assist her with the

523class. At times Respondent was assigned a second aide to help

534with students. Students in Respondent’s class were limited

542intellectually and physically. All required assistance with

549feeding, diaper changes, and mobility.

5546. It is undisputed that the challenges of managing

563Respondent’s classroom were daunting. No one disputes that

571Respondent’s daily work required physical and emotional

578strength. Cooperation between Respondent and others assigned to

586work in her classroom was important in order for the school day

598to run smoothly.

6017. Students in Respondent’s PMH class ranged in age and

611size. The eldest student could be 22 years old. It is

622undisputed that a 22-year-old might prove to be a physical

632burden for mobility and diaper changes.

6388. Respondent has received satisfactory performance

644evaluations in the past. Respondent is effective as an ESE

654teacher. Nevertheless, on November 12, 2010, Mr. Hall conducted

663a conference with Respondent to present, in writing, specific

672expectations for Respondent’s future job performance. Mr. Hall

680advised Respondent to follow the Code of Ethics and to speak

691civilly and professionally to staff and co-workers.

6989. On June 10, 2011, Mr. Hall gave Respondent a written

709reprimand for her actions during the 2010-2011 school year.

718More specifically, Mr. Hall cited Respondent’s failure to

726correct her unprofessional conduct toward staff and co-workers,

734and her willful neglect of duties. Among other items not

744pertinent here, Respondent was directed to complete sensitivity

752training and to promote a positive atmosphere in her classroom.

762Respondent denied the underlying facts that gave rise to the

772reprimand, but admitted to “yelling” at her aide. Speaking

781disrespectfully and loudly toward others was a chief component

790of Mr. Hall’s concern regarding Respondent’s behavior.

79710. On September 20, 2011, Respondent approached Mr. Hall

806at approximately 8:00 a.m. and asked to talk to him. Mr. Hall

818had a busy morning agenda but told Respondent he would talk to

830her later in the day. Respondent accepted the deferment of the

841talk and did not suggest an emergency situation that required

851more immediate attention.

85411. Later in the day, at approximately 10:30 a.m.,

863Respondent returned to Mr. Hall’s office and asked for a

873meeting. In the interim between the first request for a talk

884and the second request, Respondent had sent Mr. Hall e-mails

894outlining a need for supplies, a request for input regarding an

905aide’s condition (whether the aide had been cleared to help lift

916students), and a need for gloves.

92212. Mr. Hall advised Respondent that she was not

931responsible for buying gloves and soap, and that those types of

942supplies for her students would be provided by the School

952District.

95313. Respondent claimed that a second aide was not needed

963in her classroom because she felt the two aides assigned to the

975PMH class were “against her.”

98014. Finally, Respondent asked about the status of any

989physical restrictions for a specifically named aide,

996Ms. Mitchell. Mr. Hall assured Respondent that the aide could

1006lift as required by the job and had no restrictions.

101615. The meeting ended with Mr. Hall presuming he had

1026addressed Respondent’s concerns. Mr. Hall also mentioned that

1034Mr. Johnson, a substitute teacher at Southeast High School,

1043could be made available to help lift Respondent’s students when

1053needed.

105416. At approximately 1:15 p.m. the same day (September 20,

10642011), Respondent approached Mr. Hall’s office with her fists

1073clenched, her face red with anger, and yelled, “Am I going to

1085get any help in here today?” Mr. Hall was surprised by the loud

1099yelling and was taken aback for a moment. Since he did not

1111understand her request he asked Respondent for a clarification.

112017. After a brief exchange, it became apparent to Mr. Hall

1131that Respondent was upset because her students had not been

1141changed all day and were sitting in dirty diapers. Mr. Hall

1152maintained that Respondent had not clearly asked for assistance

1161in changing the students during the two exchanges they had had

1172during the school day. At that point, Respondent exited

1181Mr. Hall’s office and slammed the door.

118818. Mr. Hall then telephoned an ESE classroom near

1197Respondent’s room and directed Mr. Hubbard to report to

1206Respondent’s classroom to assist her with changing the students.

121519. As Mr. Hall was completing that call, Respondent

1224reappeared at his office and Mr. Hall asked her to step inside.

1236At that time, Mr. Hall told Respondent she could not communicate

1247with him as she had, that she must remain respectful and

1258professional. Respondent then advised Mr. Hall that she was

1267“pissed off.”

126920. Mr. Hall directed Respondent to return to his office

1279at the end of the school day, and that Mr. Hubbard was in her

1293classroom waiting to assist her with the diaper changes.

130221. Subsequently, Respondent told Ms. Toole that she

1310yelled at Mr. Hall. Respondent maintains that the frustrations

1319of her job and the events of the day supported her behavior.

1331Moreover, Respondent asserts that her passion for the care of

1341her students led to the emotional outburst. Respondent did not

1351return to Mr. Hall’s office at the end of the school day.

136322. Mr. Hall reported the matter to his principal and to

1374the District’s Office of Professional Standards. The

1381Superintendent of schools recommended that Respondent receive a

1389three-day suspension without pay for her conduct toward Mr. Hall

1399and her failure to correct behaviors that had previously been

1409identified. The requirement that Respondent show respect toward

1417co-workers was not a new theme. Had Respondent exhibited

1426patience and a professional demeanor, clearly articulated her

1434need for assistance in lifting her students for diaper changes,

1444and sought help in a timely manner (during any portion of the

1456school day prior to 1:15 p.m.), she could have easily avoided

1467disciplinary action. As soon as Mr. Hall was made aware of her

1479need for lifting assistance, he directed additional help to

1488Respondent’s classroom. Curiously, Respondent did not ask

1495Ms. Toole, her ESE supervisor, for help.

1502CONCLUSIONS OF LAW

150523. DOAH has jurisdiction over the parties to and the

1515subject matter of these proceedings. §§ 120.569 and 120.57(1),

1524Fla. Stat. (2012).

152724. Petitioner bears the burden of proof in this cause to

1538establish, by a preponderance of the evidence, that Respondent

1547committed the violations alleged. See McNeil v. Pinellas Cnty

1556Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996).

156625. Section 1012.33, Florida Statutes, authorizes school

1573districts to take disciplinary action against its employees

1581based upon “just cause.”

158526. In this case, Petitioner’s procedures governing

1592employment with the School District, Policy 6.11(1), provides:

1600(1) Suspension or Termination of Employees:

1606Any employee of the School Board may be

1614temporarily suspended, with or without pay,

1620or permanently terminated from employment,

1625for just cause including, but not limited

1632to, immorality, misconduct in office,

1637incompetence, gross insubordination, willful

1641neglect of duty, drunkenness, or conviction

1647of any crime involving moral turpitude,

1653violation of Policies and Procedures Manual

1659of the School District of Manatee County,

1666violation of any applicable Florida statute,

1672violation of the Code of Ethics and the

1680Principles of Professional Conduct of the

1686Education Profession in Florida.

169027. Petitioner’s Amended Administrative Complaint alleged

1696Respondent’s actions constituted three violations ( see Amended

1704Administrative Complaint, paragraphs 15, 16, and 17): misconduct

1712in office, gross insubordination, and failure to maintain the

1721respect and confidence of one’s colleagues, of students, of

1730parents, and of other members of the community by failing to

1741sustain the highest degree of ethical conduct.

174828. The first alleged violation, misconduct in office, is

1757defined by Florida Administrative Code Rule 6A-5.056(2), as

1765follows:

1766(2) “Misconduct in Office” means one or

1773more of the following:

1777(a) A violation of the Code of Ethics of

1786the Education Profession in Florida as

1792adopted in Rule 6B-1.001, F.A.C.;

1797(b) A violation of the Principles of

1804Professional Conduct for the Education

1809Profession in Florida as adopted in Rule 6B-

18171.006, F.A.C.;

1819(c) A violation of the adopted school board

1827rules;

1828(d) Behavior that disrupts the student’s

1834learning environment; or

1837(e) Behavior that reduces the teacher’s

1843ability or his or her colleagues’ ability to

1851effectively perform duties. [Emphasis

1855Added.]

185628. The Code of Ethics of the Education Profession in

1866Florida provides:

18686A-10.080 Code of Ethics of the Education

1875Profession in Florida.

1878(1) The educator values the worth and

1885dignity of every person, the pursuit of

1892truth, devotion to excellence, acquisition

1897of knowledge, and the nurture of democratic

1904citizenship. Essential to the achievement

1909of these standards are the freedom to learn

1917and to teach and the guarantee of equal

1925opportunity for all.

1928(2) The educator’s primary professional

1933concern will always be for the student and

1941for the development of the student’s

1947potential. The educator will therefore

1952strive for professional growth and will seek

1959to exercise the best professional judgment

1965and integrity.

1967(3) Aware of the importance of maintaining

1974the respect and confidence of one’s

1980colleagues, of students, of parents, and of

1987other members of the community, the educator

1994strives to achieve and sustain the highest

2001degree of ethical conduct.

200529. The Principles of Professional Conduct for the

2013Education Profession in Florida provides, in pertinent part:

20216A-10.081 Principles of Professional

2025Conduct for the Education Profession in

2031Florida.

2032(1) The following disciplinary rule shall

2038constitute the Principles of Professional

2043Conduct for the Education Profession in

2049Florida.

2050(2) Violation of any of these principles

2057shall subject the individual to revocation

2063or suspension of the individual educator’s

2069certificate, or the other penalties as

2075provided by law.

2078* * *

2081(5) Obligation to the profession of

2087education requires that the individual:

2092* * *

2095(d) Shall not engage in harassment or

2102discriminatory conduct which unreasonably

2106interferes with an individual’s performance

2111of professional or work responsibilities or

2117with the orderly processes of education or

2124which creates a hostile, intimidating,

2129abusive, offensive, or oppressive

2133environment; and, further, shall make

2138reasonable effort to assure that each

2144individual is protected from such harassment

2150or discrimination.

215230. Florida Administrative Code Rule 6A-5.056(4) defines

2159“gross insubordination” as:

2162(4) “Gross insubordination” means the

2167intentional refusal to obey a direct order,

2174reasonable in nature, and given by and with

2182proper authority; misfeasance, or

2186malfeasance as to involve failure in the

2193performance of the required duties.

219831. With regard to the charge of misconduct in office, it

2209is determined that Respondent’s behavior on September 20, 2011,

2218constitutes a violation of the law. Respondent yelled angrily

2227at her supervisor and thereby created a harassing and hostile

2237environment. Respondent had previously been directed to refrain

2245from loud, menacing tones with co-workers. Mr. Hall’s

2253memorandum of November 12, 2010, specifically identified and

2261prohibited yelling or using profanity. Respondent was

2268specifically told not to use profanity. Respondent’s assertion

2276that she was “pissed off” in a loud, inappropriate tone does not

2288meet the professional standards contemplated by the governing

2296rules. Respondent’s slamming Mr. Hall’s door demonstrates

2303disrespect and a gross indifference to the work environment.

231232. With regard to the charge of gross insubordination, it

2322is determined that Respondent’s behavior on September 20, 2011,

2331constitutes a violation of the law. Mr. Hall’s directive to

2341Respondent regarding her treatment of co-workers was reasonable

2349in nature, and given by and with proper authority. Yelling at

2360one’s superior after being told not to yell and use profanity is

2372unacceptable. Had Respondent presented her request for help in

2381a professional manner, the students’ needs would have been

2390easily addressed. Misplaced passion or outrage because the

2398students had not been changed does not excuse unprofessional

2407conduct.

240833. With regard to the charge of failure to sustain the

2419highest degree of ethical conduct, it is determined that

2428Petitioner failed to meet its burden in this regard. Any

2438technical violation regarding the standard of educators’ conduct

2446has previously been identified and fully addressed as misconduct

2455in office.

2457RECOMMENDATION

2458Based on the foregoing Findings of Fact and Conclusions of

2468Law, it is RECOMMENDED that Respondent be suspended for three

2478days without pay.

2481DONE AND ENTERED this 29th day of January, 2013, in

2491Tallahassee, Leon County, Florida.

2495S

2496J. D. PARRISH

2499Administrative Law Judge

2502Division of Administrative Hearings

2506The DeSoto Building

25091230 Apalachee Parkway

2512Tallahassee, Florida 32399-3060

2515(850) 488-9675

2517Fax Filing (850) 921-6847

2521www.doah.state.fl.us

2522Filed with the Clerk of the

2528Division of Administrative Hearings

2532this 29th day of January, 2013.

2538COPIES FURNISHED :

2541Erin G. Jackson, Esquire

2545Thompson, Sizemore, Gonzalez

2548and Hearing P.A.

2551201 North Franklin Street, Suite 1600

2557Post Office Box 639

2561Tampa, Florida 33602

2564Melissa C. Mihok, Esquire

2568Kelly and McKee, P.A.

25721718 East 7th Avenue, Suite 301

2578Post Office Box 75638

2582Tampa, Florida 33675-0638

2585Dr. David Gayler, Interim Superintendent

2590Manatee County School Board

2594215 Manatee Avenue West

2598Bradenton, Florida 34205-9069

2601Dr. Tony Bennett, Commissioner

2605Department of Education

2608Turlington Building, Suite 1514

2612325 West Gaines Street

2616Tallahassee, Florida 32399-0400

2619Lois Tepper, Interim General Counsel

2624Department of Education

2627Turlington Building, Suite 1244

2631325 West Gaines Street

2635Tallahassee, Florida 32399-0400

2638NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2644All parties have the right to submit written exceptions within

265415 days from the date of this Recommended Order. Any exceptions

2665to this Recommended Order should be filed with the agency that

2676will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/29/2014
Proceedings: Notice of Dismissal filed.
PDF:
Date: 07/31/2013
Proceedings: Agency Final Order
PDF:
Date: 07/31/2013
Proceedings: Joint Stipulation for Settlement filed.
PDF:
Date: 02/25/2013
Proceedings: Petitioner's Response to Respondent's Exception to the Recommended Order filed.
PDF:
Date: 01/29/2013
Proceedings: Recommended Order
PDF:
Date: 01/29/2013
Proceedings: Recommended Order (hearing held October 11, 2011). CASE CLOSED.
PDF:
Date: 01/29/2013
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/17/2012
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 12/17/2012
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 11/15/2012
Proceedings: Order Granting Extension of Time.
PDF:
Date: 11/09/2012
Proceedings: Respondent's Amended Unopposed Motion for Extension of Time to File Proposed Recommended Orders (To correct the certificate of service only) filed.
PDF:
Date: 11/09/2012
Proceedings: Respondent's Unopposed Motion for Extension of Time to File Proposed Recommended Orders filed.
PDF:
Date: 11/08/2012
Proceedings: Notice of Filing Deposition Transcript of Fred Johnson filed.
Date: 10/30/2012
Proceedings: Transcript (not available for viewing) filed.
PDF:
Date: 10/29/2012
Proceedings: Notice of Filing Original Hearing Transcript filed.
Date: 10/11/2012
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/04/2012
Proceedings: Respondent's Amended Witness List filed.
PDF:
Date: 10/03/2012
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 10/03/2012
Proceedings: Second Amended Notice of Hearing (hearing set for October 11, 2012; 8:30 a.m.; Bradenton, FL; amended as to date and time of hearing).
PDF:
Date: 09/28/2012
Proceedings: Amended Administrative Complaint filed.
PDF:
Date: 09/28/2012
Proceedings: Order Granting Motion to Amend Administrative Complaint
PDF:
Date: 09/27/2012
Proceedings: Unopposed Motion to Amend Administrative Complaint filed.
PDF:
Date: 09/27/2012
Proceedings: Joint Notice of Parties' Agreement to a One-day Hearing filed.
PDF:
Date: 09/27/2012
Proceedings: Amended Notice of Hearing (hearing set for October 10 and 11, 2012; 1:30 p.m.; Bradenton, FL; amended as to the time of hearing.).
PDF:
Date: 09/26/2012
Proceedings: Notice of Transfer.
PDF:
Date: 09/05/2012
Proceedings: Respondent's Notice of Email Designation filed.
PDF:
Date: 09/04/2012
Proceedings: Petitioner's Notice of Designation of Email Addresses filed.
PDF:
Date: 06/25/2012
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 10 and 11, 2012; 9:30 a.m.; Bradenton, FL).
PDF:
Date: 06/18/2012
Proceedings: Respondent's Unopposed Motion to Continue Hearing filed.
PDF:
Date: 06/15/2012
Proceedings: Order Re-scheduling Hearing (hearing set for September 11 and 12, 2012; 9:30 a.m.; Bradenton, FL).
PDF:
Date: 06/06/2012
Proceedings: Petitioner's Request to Reschedule Evidentiary Hearing filed.
PDF:
Date: 05/18/2012
Proceedings: Notice of Taking Deposition (of Y. Eisenberg) filed.
PDF:
Date: 05/16/2012
Proceedings: Notice of Taking Depositions (of S. Hall, W. Mitchell, J. toole, Y. Koziak, and F. Johnson) filed.
PDF:
Date: 05/15/2012
Proceedings: Petitioner's Request to Have the Evidentiary Hearing in Manatee County filed.
PDF:
Date: 05/10/2012
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/10/2012
Proceedings: Notice of Hearing by Video Teleconference (hearing set for August 29 and 30, 2012; 9:30 a.m.; Sarasota and Tallahassee, FL).
PDF:
Date: 05/09/2012
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 05/01/2012
Proceedings: Initial Order.
PDF:
Date: 04/27/2012
Proceedings: Administrative Complaint filed.
PDF:
Date: 04/27/2012
Proceedings: Recommendation for Suspension without Pay filed.
PDF:
Date: 04/27/2012
Proceedings: Order Granting Hearing filed.
PDF:
Date: 04/27/2012
Proceedings: Referral Letter filed.
PDF:
Date: 04/27/2012
Proceedings: Request for Evidentiary Hearing filed.

Case Information

Judge:
J. D. PARRISH
Date Filed:
04/27/2012
Date Assignment:
09/26/2012
Last Docket Entry:
10/29/2014
Location:
Bradenton, Florida
District:
Middle
Agency:
Other
Suffix:
TTS
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (4):

Related Florida Rule(s) (4):