01-001307 Palm Beach County School Board vs. Cassandra Dickerson Status: Closed Recommended Order on Friday, August 24, 2001.

Summary: School Board`s evidence was sufficient to recommend termination of non-instructional employee`s employment based upon unsatisfactory performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01-1307

)

CASSANDRA DICKERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

The parties having been provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings convened a formal hearing of this

matter in West Palm Beach, Florida, on June 7, 2001, as

scheduled . The hearing was adjourned that same day.

APPEARANCES

For Petitioner : Alan M. Aronson, Esquire

Office of the Chief Counsel

for the School Board

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406

For Respondent : No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether a district school board

is entitled to terminate the employment of a non-instructional

employee whose performance is alleged to have been

unsatisfactory.

PRELIMINARY STATEMENT

In a Petition for Suspension Without Pay and Dismissal From

Employment dated March 15, 2001, the Superintendent of Schools

for the School District of Palm Beach County, Florida (the

"District") urged the Palm Beach County School Board (the

"Board") to suspend Respondent Cassandra Dickerson

("Ms. Dickerson") without pay effective March 29, 2001, and to

terminate her employment effective 15 days after the Board's

decision or, alternatively, following an administrative hearing

if timely requested. The superintendent based his

recommendation on the allegation that Ms. Dickerson had failed

to correct identified performance deficiencies within 30 days

after an unsatisfactory evaluation, despite having been provided

assistance to improve her performance.

The Board accepted the superintendent's recommendation at

its regular meeting on March 28, 2001. Ms. Dickerson timely

requested a formal administrative hearing, and, on April 5,

2001, the matter was referred to the Division of Administrative

Hearings.

The undersigned Administrative Law Judge, having been

assigned the case, issued a Notice of Hearing on April 17, 2001,

that set the final hearing for June 7 and 8, 2001, in West Palm

Beach, Florida. The hearing convened on June 7 as scheduled.

The Board appeared through counsel. Ms. Dickerson, who had

participated in pre-hearing telephone conferences and for that

reason was known to be aware of the date, place, and time of the

final hearing, did not appear. Because the Board had the burden

of proving its allegations, the hearing went forward without

Ms. Dickerson.

The Board presented four witnesses, all District employees :

Kimberly Vargas-Vila, a classroom teacher; Ruby Garcia, a

paraprofessional; Elizabeth Cardozo, Principal; and Diane

Curcio-Greaves, Professional Standards Specialist. In addition,

the Board introduced 29 exhibits into evidence, numbered 1

through 29.

On June 8, 2001, the A dministrative Law Judge issued Post-

Hearing Instructions that directed the parties to file their

proposed recommended orders within 20 days after the filing of

the final hearing transcript with the Division of Administrative

Hearings.

The transcript was filed on June 27, 2001. An Order

Regarding Proposed Recommended Orders was entered on June 28,

2001, which specifically established July 17, 2001, as the

deadline for filing post-hearing papers. This deadline was

enlarged to July 24, 2001, on the Board's motion.

The Board timely filed its Proposed Findings of Fact and

Recommended Order. The undersigned carefully considered the

Board's submission in the preparation of this Recommended Order.

Ms. Dickerson did not submit any post-hearing papers.

FINDINGS OF FACT

1. At all times material, Ms. Dickerson was employed in

the District as an education paraprofessional. For the 2000-01

school year, she was assigned to Meadow Park Elementary School

(the "School").

2. That year, Ms. Dickerson worked under the supervision

and direction of a special education teacher named Kimberly

Vargas-Vila, whose half-dozen or so pupils, ranging in age from

three to seven years, were children with autism.

3. Ms. Dickerson was one of two paraprofessionals placed

in Ms. Vargas-Vila’s classroom for the 2000-01 school year. In

the discharge of her duties, Ms. Dickerson was required to feed

students, help them in the toilet, assist the teacher in the

classroom, assist children in play, watch them on the

playground, make copies, and run errands for the teacher.

4. Not long after the school year started, Ms. Vargas-Vila

noticed that Ms. Dickerson resisted attempts by the other

paraprofessional, who was a so-called "one-on-one" aide assigned

to a specific student, to help Ms. Dickerson. Ms. Dickerson

wanted to perform certain duties herself and often refused

offers of assistance. Ms. Dickerson's unwillingness to share

the work load was not initially disruptive but increasingly

became so.

5. In October 2000, another pr oblem developed :

Ms. Dickerson began to disobey Ms. Vargas-Vila's directions

concerning the management of students' behavior. The teacher

spoke with Ms. Dickerson about this issue, but Ms. Dickerson

refused to discuss the matter with her. Instead, Ms. Dickerson

sent a letter to the Board in which she unjustly accused

Ms. Vargas-Vila of harassment.

6. Unable on her own to resolve the problems she was

having with Ms. Dickerson, Ms. Vargas-Vila sought the advice of

the School's Principal, Elizabeth Cardozo. After conferring,

they decided that the three of them (the principal, the teacher,

and the paraprofessional) should meet together.

7. Accordingly, a meeting was held between Ms. Dickerson,

Ms. Vargas-Vila, and Ms. Cardozo on October 18, 2000. While the

primary topic of discussion was Ms. Dickerson's allegation that

Ms. Vargas-Vila had harassed her (which was groundless), other

matters were discussed too, with the participants agreeing to

reconvene if problems recurred.

8. Despit e this meeting on October 18, 2000, Ms. Vargas-

Vila continued to have difficulties with Ms. Dickerson.

Therefore, a few weeks later, on November 7, 2000, Ms. Vargas-

Vila wrote a memorandum to Ms. Cardozo that related her concerns

about Ms. Dickerson's ongoing failure to follow instructions

relating to the behavior management techniques that she (the

teacher) wanted to use with a particular student.

9. In this memorandum, Ms. Vargas-Vila explained that she

frequently had told Ms. Dickerson to ignore certain

inappropriate behaviors in which the student in question was

engaging, but Ms. Dickerson refused to comply. Rather than

ignore the student, as directed, Ms. Dickerson would continue to

talk and interact with the student. Ms. Vargas-Vila also had

instructed that the student’s chair be placed slightly apart

from the other students, but Ms. Dickerson, disobeying, had

moved the student’s chair back towards the others in the group.

Ms. Dickerson's defiance was causing friction in the classroom.

10. Whe n Ms. Vargas-Vila witnessed these insubordinate

acts, she immediately discussed them with Ms. Dickerson, who

either did not comment or expressed her opinion that the

teacher's orders were inappropriate.

11. Ms. Vargas-Vila's memorandum of November 7, 2000,

reported as well that Ms. Dickerson continued to object when the

teacher asked the other paraprofessional to handle duties that

Ms. Dickerson felt were "her" tasks.

12. As a result of Ms. Vargas-Vila's memorandum, a meeting

was held on November 17, 2000, between Ms. Dickerson ,

Ms. Vargas-Vila, Ms. Cardozo, and a District official named John

Stevens. The meeting was difficult because Ms. Dickerson became

loud and angry, accusing the attendees, among other things, of

plotting to violate her Constitutional rights. She also made

the weird charge that Ms. Vargas-Vila had employed a "fake

cough" to aggravate her in the classroom. Notwithstanding these

impediments to productive discourse, Ms. Vargas-Vila reviewed

"improvement strategies" with Ms. Dickerson, who said that she

would follow this advice. Afterwards, Ms. Dickerson was

provided a written summary of the November 17, 2000, conference,

which specified the areas in which improvement was needed and

the recommended improvement strategies.

1 3. For a while after the November 17, 2000, meeting ,

Ms. Dickerson's performance improved. But before the month was

out, Ms. Dickerson had resumed refusing to allow the other

paraprofessional to perform certain duties, and she had begun

once again to disregard the behavior management techniques that

Ms. Vargas-Vila prescribed. These problems continued into the

next calendar year.

14. Throughout January 2001, Ms. Dickerson's performance-

related problems persisted. Ms. Vargas-Vila talked specifically

with Ms. Dickerson about the need for her to follow directions

and allow other people to help out in the classroom, but

Ms. Dickerson did not change her unsatisfactory behavior. As a

result, another meeting with Ms. Cardozo was scheduled, for

January 25, 2001.

15. The January 25, 2001, meeting was attended by

Ms. Cardozo, Ms. Vargas-Vila, and Ms. Dickerson. During the

meeting, Ms. Dickerson was told that she had failed to follow

the improvement strategies that had been recommended——and which

she had agreed to implement——during the conference on

November 17, 2000. Ms. Dickerson was notified that if she

continued to disobey the teacher's directions, she would be

subject to disciplinary action. Finally, more improvement

strategies were discussed, and these were reduced to writing, as

part of the principal's conference notes, a copy of which was

provided to Ms. Dickerson on January 30, 2001.

16. As of the January 25, 2001, meeting, Ms. Cardozo was

convinced that Ms. Dickerson’s job performance was

unsatisfactory and that her actions were interfering with the

instructional process in the classroom. Consequently ,

Ms. Cardozo sought guidance from Diane Curcio-Greaves, a

Professional Standards Specialist at the District's

headquarters, in regard to the preparation of a performance

evaluation of Ms. Dickerson.

17. The conditions of Ms. Dickerson's employment were

governed by a collective bargaining agreement called the

Agreement Between the School District of Palm Beach County,

Florida and the Association of Education Secretaries and Office

Professionals, dated July 1, 1997 - June 30, 2000 (the "Union

Contract"). The Union Contract forbade the recommendation of an

employee for termination based upon an unsatisfactory evaluation

unless that employee had been given at least 30 days to improve

his or her performance.

18. In view of this contractual provision, Ms. Curcio-

Greaves and Ms. Cardozo decided that Ms. Dickerson would be

afforded 30 days from the date she received an unsatisfactory

performance evaluation within which to correct the identified

deficiencies.

19. On February 2, 2001, based on Ms. Vargas-Vila's input

as well as her own observations, Ms. Cardozo recorded her

assessment of Ms. Dickerson's performance on a Noninstructional

Evaluation form used by the District. Ms. Cardozo rated

Ms. Dickerson unsatisfactory under the categories of self

motivation, adaptability to change, interpersonal effectiveness,

and assignments (specifically, under the last heading, for

failing to follow directions easily and effectively).

Ms. Cardozo assigned Ms. Dickerson an overall rating of

unsatisfactory.

20. Ms. Cardozo, Ms. Curcio-Greaves, and Assistant

Principal Diane Bell met with Ms. Dickerson on February 5, 2001,

to discuss the unsatisfactory evaluation and to initiate a 30-

day assistance plan. At this meeting, improvement strategies

for each area in which her performance had been deemed

unsatisfactory were recommended to Ms. Dickerson. These

improvement strategies, together with a statement of the reasons

why Ms. Dickerson's job performance was considered

unsatisfactory, were set forth in a memorandum of assistance

dated February 2, 2001, which Ms. Cardozo had prepared earlier.

21. The evaluation and its attach ments, including the

memorandum of assistance, were presented to Ms. Dickerson on

February 5, 2001. Ms. Dickerson acknowledged receipt of these

documents, noting her disagreement with the contents and vowing

to appeal "THIS FALSE PLOT!"

22. In accordan ce with District policy and the Union

Contract, Ms. Cardozo was responsible for monitoring

Ms. Dickerson's progress during the 30-day assistance period and

periodically meeting with Ms. Dickerson to review her

performance and provide feedback. Ms. Cardozo scheduled several

review conferences with Ms. Dickerson, to occur on Friday,

February 16; Monday, February 26; and Monday, March 12, 2001.

These dates were provided to Ms. Dickerson in a memorandum dated

February 8, 2001, receipt of which was acknowledged by

Ms. Dickerson that same day.

23. The first review conference was held on February 20,

2001. 1 Present were the same persons as on February 5 :

Ms. Cardozo, Ms. Bell, Ms. Curcio-Greaves, and Ms. Dickerson.

Ms. Cardozo discussed each previously-identified area of

deficiency with Ms. Dickerson and told Ms. Dickerson what was

expected of her to correct these deficiencies, which persisted.

Ms. Dickerson was not receptive to advice and indeed refused to

acknowledge that her performance was unsatisfactory. Based upon

Ms. Dickerson’s comments and the fact that she had not been

following the implementation strategies described in the

February 2, 2001, memorandum of assistance, Ms. Cardozo was of

the opinion that as of February 20, 2001, Ms. Dickerson’s job

performance had not improved.

24. On February 22, 2001, Ms. Cardozo wrote a memorandum

detailing the discussion that had taken place during the

February 20, 2001, meeting. This memorandum specified the areas

of Ms. Dickerson’s job performance that continued to be

deficient, and spelled out the steps that Ms. Dickerson needed

to take in order to improve. Ms. Cardozo gave Ms. Dickerson a

copy of her memorandum on February 22, 2001 , receipt of which

was acknowledged by Ms. Dickerson.

25. On February 23, 2001, Ms. Cardozo formally observed

Ms. Dickerson in Ms. Vargas-Vila's classroom for one hour. She

noticed that Ms. Dickerson continued to be performing

unsatisfactorily in the area of interpersonal effectiveness.

26. A few days later, on February 26, 2001, a second

review meeting was held with Ms. Dickerson. In attendance were

Ms. Cardozo, Ms. Curcio-Greaves, Ms. Bell, Jeanne Burdsall (a

Manager in the District's Office of Professional Standards), and

Ms. Dickerson. At this meeting, Ms. Dickerson informed the

group that she had spoken with the "Assistant Superintendent"

concerning her belief that people were trying to take her job

away and give her a bad evaluation. Ms. Dickerson was reminded

that on February 5, 2001, she had been advised about the

grievance procedures available to union members. Ms. Dickerson

was again informed of her right to contact a union

representative if she wanted to file a grievance regarding her

evaluation.

27. It is evident that by the tim e of the February 26,

2001, meeting, Ms. Dickerson was not implementing previously-

recommended improvement strategies and had no intention of doing

so. She continued to deny having performance problems and

stubbornly resisted attempts to help her improve. Ms. Dickerson

repeated the now-familiar but utterly unsubstantiated accusation

that Ms. Vargas-Vila and others were harassing her and plotting

to take away her job. Ms. Dickerson's comments had become

alarmingly irrational and paranoid.

28. On March 6, 2001, Ms. Dickerson received a copy of

Ms. Cardozo's detailed memorandum describing the February 26

meeting. Ms. Cardozo continued to hold the opinion that

Ms. Dickerson had not improved her job performance to a

satisfactory level.

29. The next day, Ms. Dickerson refused to change a

child's diaper at the direct request of Ms. Vargas-Vila,

claiming that it was not her job and complaining that the

teacher's directive constituted harassment. Ms. Vargas-Vila

immediately brought this incident to Ms. Cardozo's attention.

Within hours, the principal had notified Ms. Dickerson in

writing that she wanted to meet with her the following day,

March 8, 2001, in order to review the notes that Ms. Cardozo had

made concerning her February 23, 2001, classroom evaluation of

Ms. Dickerson.

30. Later that afternoon, Ms. Dickerson appeared in

Ms. Cardozo's office, ranting loudly that she was being harassed

and asking why they needed to have a meeting. Ms. Cardozo

advised Ms. Dickerson that the reason for the meeting was to go

over the results of the February 23, 2001, observation.

Ms. Dickerson alleged (again) that she could no longer do her

job due to the supposed harassment. Ms. Cardozo asked

Ms. Dickerson if she was refusing to meet with her, and

Ms. Dickerson told her she was not.

31. At that point, Ms. Cardozo told Ms. Dickerson that she

would arrange to discuss the observation of February 23, 2001,

at the upcoming assistance review meeting, scheduled for

March 12, 2001. Thereupon, Ms. Dickerson left Ms. Cardozo’s

office, only to return minutes later to tell Ms. Cardozo that

she was sick and leaving for the day. In light of

Ms. Dickerson's outburst and bizarre behavior, Ms. Cardozo began

to worry that she or her staff might be in danger.

32. Ms. Cardozo’s last meeting with Ms. Dickerson was on

March 12, 2001. Ms. Cardozo gave Ms. Dickerson a copy of her

memorandum of the observation that she had conducted on

February 23, 2001. In the memorandum, Ms. Cardozo specifically

commented on Ms. Dickerson's lack of interpersonal

effectiveness. Ms. Cardozo also handed Ms. Dickerson a

Noninstructional Evaluation form that she had completed on

March 12, 2001, on which Ms. Dickerson was graded unsatisfactory

in the areas of self motivation, adaptability to change,

interpersonal effectiveness, and assignments——the same areas in

which Ms. Dickerson's performance previously had been considered

deficient. Overall, the evaluation was unsatisfactory.

33. Because she had failed to correct the identified

performance deficiencies within 30 days, Ms. Dickerson was

informed via a letter from the Chief Personnel Officer, which

she received on March 12, 2001, that effective March 13, 2001,

she was being reassigned to her home with pay, pending the

Board's next meeting on March 28, 2001, at which time action

would be taken to dismiss her.

34. By memorandum dated March 12, 2001, Ms. Cardozo

notified the Director of Professional Standards that

Ms. Dickerson had been given an unsatisfactory evaluation after

the end of a 30-day assistance period. Based upon the

unsatisfactory evaluation, Ms. Cardozo requested a District

review to determine further action, up to and including

termination of Ms. Dickerson's employment.

35. In due course, pursuant to District policy, a

competency hearing was convened before a committee of District

employees, to review the evaluation process and Ms. Cardozo's

recommendation that Ms. Dickerson's employment be terminated.

The committee determined that all of the procedures for

terminating a non-instructional employee for unsatisfactory

performance had been followed, and it voted to uphold

Ms. Cardozo's recommendation.

36. The superintendent accepted the committee's

recommendation, executing a petition on March 15, 2001, which

urged the Board to suspend Ms. Dickerson without pay effective

March 29, 2001, and to terminate her employment effective 15

days after the Board's decision or following an administrative

hearing if timely requested.

37. Although the record is not entirely clear, it appears

that the Board suspended Ms. Dickerson without pay effective

March 29, 2001, as recommended.

Ultimate Factual Determination

38. Ms. Dickerson's job performance was unsatisfactory,

and she failed to correct the identified deficiencies within the

30-day period prescribed under the Union Contract, despite the

provision of ample assistance to improve her performance.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has person al

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

40. Generally speaking, "[i ]n accordance with the

provisions of s. 4(b) of Art. IX of the State Constitution,

district school boards [are empowered to] operate, control, and

supervise all free public schools in their respective districts

and may exercise any power except as expressly prohibited by the

State Constitution or general law." Section 230.03(2), Florida

Statutes.

41. The distr ict superintendent is responsible for

recommending the placement of school personnel and requiring

compliance and observance by all personnel of the laws,

policies, and directives of the school district. The

superintendent has the authority to recommend to the school

board that a district employee be dismissed from employment. See

Section 230.33(7)(e), Florida Statutes

42. "Under Florida law, a school board's decision to

terminate an employee is one affecting the employee's

substantial interests; therefore, the employee is entitled to a

formal hearing under section 120.57(1) if material issues of

fact are in dispute," for a school board is "a state agency

falling within Chapter 120 for purposes of quasi-judicial

administrative orders." Sublett v. District School Board of

Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

43. A district school board employee against whom a

dismissal proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice "need not be set forth with the technical nicety or

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] violation."

Jacker v. School Board of Dade County , 426 So. 2d 1149, 1151

(Fla. 3d DCA 1983)(Jorgenson, J. concurring).

44. Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon which dismissal may

be predicated, and none other. See Lusskin v. Agency for Health

Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999) ;

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996) ; Klein v. Department of Business and Professional

Regulation , 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993) ; Delk v.

Department of Professional Regulation , 595 So. 2d 966, 967 (Fla.

5th DCA 1992) ; Willner v. Department of Professional Regulation,

Board of Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev.

denied , 576 So. 2d 295 (1991).

45. At hearing, the school board has the burden to prove

the allegations contained in the notice of specific charges by a

preponderance of the evidence, unless the collective bargaining

agreement covering the bargaining unit of which the employee is

a member prescribes a more demanding standard of proof. See

McNeill v. Pinellas County School Board , 678 So. 2d 476, 477

(Fla. 2d DCA 1996)("The School Board bears the burden of

proving, by a preponderance of the evidence, each element of the

charged offense which may warrant dismissal."); Sublett v.

Sumter County School Board , 664 So. 2d 1178, 1179 (Fla. 5th DCA

1995). Neither party here has pointed to or offered in evidence

any contractual provision that would require the Board to

satisfy a stricter standard of proof. 2

46. Where the employee whose discharge is sought is an

"educational support employee," the school board must also act

in accordance with the provisions of Section 231.3605, Florida

Statutes, which provides:

(1) As used in this section:

(a) "Educational support employee" means

any person employed by a district school

system who is so employed as . . . a

secretary, or a clerical employee, or any

other person who by virtue of his or her

position of employment is not required to be

certified by the Department of Education or

district school board pursuant to s.

231.1725. This section does not apply to

persons employed in confidential or

management positions. This section applies

to all employees who are not temporary or

casual and whose duties require 20 or more

hours in each normal working week.

(b) "Employee" means any person employed

as an educational support employee.

(c) "Superintendent" means the

superintendent of schools or his or her

designee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective bargaining agreement does

not exist.

(b ) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year

to year unless the superintendent terminates

the employee for reasons stated in the

collective bargaining agreement, or in

district school board rule in cases where a

collective bargaining agreement does not

exist, or reduces the number of employees on

a districtwide basis for financial reasons.

(c) In the event the superintendent seeks

termination of an employee, the district

school board may suspend the employee with

or without pay. The employee shall receive

written notice and shall have the

opportunity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining agreement.

47. Ms. Dickerson is an "educational support employee,"

within the meaning of Section 231.3605(1)(a), Florida Statutes,

who has completed the probationary period and is covered by a

collective bargaining agreement. Accordingly, pursuant to

Section 231.3605(2)(b), Florida Statutes, her employment may be

terminated "for reasons stated in the collective bargaining

agreement."

48. An examination of the Union Contract reveals that a

bargaining unit member covered by the contract may be dismissed

for unsatisfactory performance. The pertinent contractual

provisions, found in Article 3, Section B, Paragraphs 4 and 14,

provide, respectively, as follows:

(a ) All members of the bargaining unit

shall have one written evaluation yearly.

(b ) Prior to an evaluation that may result

in "less than satisfactory", a conference

shall be arranged no less than twenty (20)

duty days prior to the formal evaluation

being conducted to allow an employee the

opportunity to improve his/her performance.

The employee shall receive, in writing, the

areas of improvement needed.

(c ) Employees will be given a copy of the

written evaluation prepared by the

principal/supervisor and will have the right

to discuss such evaluation with his/her

principal/supervisor.

(d ) The professional judgment of the

evaluator and the content of the evaluation

shall not be subject to the grievance

procedure. Any other grievance filed under

this section of the contract shall not be

subject to binding arbitration.

(e ) The employee shall have twenty (20)

duty days to attach a written statement of

rebuttal to the evaluation. All written

rebuttals shall be sent to the Department of

Employee Records and Information Services.

(f ) No administrator or department head

shall discuss any matter relating to the

performance of an employee in the presence

of students, parents or other employees.

All personnel and/or confidential matters

shall only be discussed in private offices.

(g ) If an employee is not working up to

expectation, a Memorandum of Assistance will

be presented to the employee by the

principal/department head. This memorandum

will state specific reasons why the

employee's job performance is considered

unsatisfactory. This memorandum will also

state specific steps to take for the

employee to improve his/her performance.

* * *

(a ) An employee whose performance is deemed

to be less than satisfactory by his/her

supervisor shall be so advised in writing of

such unsatisfactory performance by the

principal/department head.

(b ) The employee will be provided

assistance to improve his/her performance.

(c ) No employee shall be recommended for

termination based on unsatisfactory

evaluation unless he/she has been given at

least thirty (30) days to improve his/her

performance.

(d ) An employee who has been recommended to

the Superintendent for termination shall be

given notice, in writing with documentation

stating the reasons for this by his/her

principal/department head. The employee

shall be given ten (10) working days notice

if the Superintendent is recommending

termination prior to School Board action.

(e ) After School Board action, an employee

may, within fifteen (15) days, protest

his/her performance-based termination

through either the grievance procedure or

the Department [ sic ] of Administration

Hearings.

Union Contract, at pp. 11, 14-15.

49. As se t forth in the Findings of Fact, the Board

carried its burden, by the requisite quantum of proof, to

establish that Ms. Dickerson's performance was unsatisfactory.

The evidence shows as well that the Board complied with the

provisions in the Union Contract that govern the performance-

based termination of non-instructional employees.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board enter a final order

ratifying Ms. Dickerson's suspension without pay effective

March 29, 2001, and discharging her from further employment in

the Palm Beach County Public Schools.

DONE AND ENTERED this 24th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of August, 2001.

ENDNOTES

1 / Evidently, this meeting, originally set to take place on

February 16, 2001, had been rescheduled, for reasons that are

not clear in the record.

2 / Where the district school board, through the collective

bargaining process, has agreed to bear a more demanding

standard, it must honor, and act in accordance with, its

agreement. See Chiles v. United Faculty of Florida , 615 So. 2d

671, 672-73 (Fla. 1993)("Once the executive has negotiated and

the legislature has accepted and funded an agreement [with its

employees' collective bargaining representative], the state and

all its organs are bound by that [collective bargaining

agreement] under the principles of contract law."); Hillsborough

County Governmental Employees Association v. Hillsborough County

Aviation Authority , 522 So. 2d 358, 363 (Fla. 1988)("[W ]e hold

that a public employer must implement a ratified collective

bargaining agreement with respect to wages, hours, or terms or

conditions of employment . . . ."); Palm Beach County School

Board v. Auerbach , No. 96-3683 (Fla. DOAH February 20, 1997)

(Recommended Order)("Long-standing case law establishes that in

a teacher employment discipline case, the school district has

the burden of proving its charges by a preponderance of the

evidence. . . . However, in this case, the district must comply

with the terms of the collective bargaining agreement, which

. . . requires the more stringent standard of proof: clear and

convincing evidence.").

COPIES FURNISHED:

Alan M. Aronson, Esquire

Office of the Chief Counsel

for the School Board

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406

Cassandra Dickerson

Post Office Box 12084

Lake Park, Florida 33403

Honorable Charlie Crist, Commissioner

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Dr. H. Benjamin Marlin, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard

Room C316

West Palm Beach, Florida 33406-5869

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.