04-002060TTS
Monroe County School Board vs.
Diane Scott
Status: Closed
Recommended Order on Monday, October 25, 2004.
Recommended Order on Monday, October 25, 2004.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MONROE COUNTY SCHOOL BOARD, )
13)
14Petitioner, )
16)
17vs. ) Case No. 04-2060
22)
23DIANE SCOTT, f/k/a DIANE )
28HILL-SCOTT, )
30)
31Respondent. )
33______________________________)
34RECOMMENDED ORDER
36Robert E. Meale, Administrative Law Judge of the Division
45of Administrative Hearings, conducted the final hearing in
53Marathon, Florida, on August 18, 2004.
59APPEARANCES
60For Petitioner: Scott E. Siverson
65Scott C. Black
68Vernis & Bowling of the
73Florida Keys, P.A.
7681990 Overseas Highway
79Islamorada, Florida 33036
82For Respondent: Diane Scott, pro se
88Post Office Box 501586
92Marathon, Florida 33050
95STATEMENT OF THE ISSUE
99The issue is whether Petitioner may terminate Respondent's employment contract due to repeated acts of harassment, gross insubordination, and violations of Petitioner's policies.
122PRELIMINARY STATEMENT
124By Administrative Complaint dated March 15, 2004,
131Petitioner alleged that it employed Respondent as an aid at the
142Stanley Switlik School. The Administrative Complaint alleges
149that Respondent became enraged and began yelling at her
158supervisors at a meeting on October 8, 2003, to address her
169recent acts of aggression and harassment toward coworkers. On
178January 6, 2004, Petitioner allegedly learned that an employee
187of Grace Jones School had requested a restraining order against
197Respondent to stop her threatening and aggressive behavior
205toward the employee. On February 13, 2004, Petitioner allegedly
214learned that Respondent was displaying aggressive behavior
221toward a parent and had improperly disclosed confidential
229student information. On March 8, 2004, Petitioner allegedly
237learned that a parent had requested a restraining order against
247Respondent.
248The Administrative Complaint alleges that Respondent has
255engaged in repeated acts of harassment, insubordination, and
263violations of School Board policy during her employment with
272Respondent. The Administrative Complaint alleges that
278Respondent has perpetrated at least five documented cases of
287harassment of coworkers, and she has received at least three
297written reprimands and multiple verbal warnings concerning her
305improper pattern of conduct. The Administrative Complaint
312alleges that Respondent has refused to sign and acknowledge
321Petitioner's anti-harassment policy, and she has received
328unsatisfactory evaluations for the 2002 and 2003 school years.
337At the hearing, Petitioner called seven witnesses and
345offered into evidence 20 exhibits: Petitioner Exhibits 1-18 and
35420-21. Respondent called three witnesses and offered into
362evidence two exhibits: Respondent Exhibits 1-2. All exhibits
370were admitted.
372The court reporter filed the transcript on September 20,
3812004. Petitioner filed a proposed recommended order on
389October 8, 2004.
392FINDINGS OF FACT
3951. Until her last day of work on March 15, 2004,
406Respondent had worked for over 13 years at Stanley Switlik
416Elementary School (Switlik) in Marathon. Switlik is a public
425school. For most of her career with Petitioner, Respondent
434worked as an aid in the exceptional student education (ESE)
444prekindergarten program. During the 2003-04 school year,
451Respondent worked as a 1:1 aid to a student in a varying
463exceptionalities class. At all material times, Respondent was
471classified as noncertified instructional staff.
4762. For at least the past couple of years, Respondent was
487dissatisfied by much of what took place around her at work and
499in the local education community. In the past two years,
509Respondent has filed complaints with three federal agencies
517(Department of Education, Department of Health and Human
525Services, and Equal Employment Opportunity Commission), two
532state agencies (Department of Education and Department of
540Children and Family Services), and one local agency
548(Petitioner). The 13 subjects of these complaints include two
557principals of Switlik, two superintendents of Monroe County
565Public Schools, various teachers and teacher aids, and a
574relative of her husband. The record discloses no basis for
584finding any merit whatsoever in any of these complaints.
5933. In June 2002, Respondent walked into a classroom at the
604Grace Jones Day Care Center, which is a not-for-profit school in
615Respondents neighborhood, and entered a class with sleeping
623preschool children. Respondent approached the new director of
631Grace Jones and confronted her about the school's curriculum.
640The bewildered director spoke to Respondent for a few moments
650before realizing that Respondent had no children at the school.
6604. In the ensuing weeks, Respondent continued to challenge
669the director about the schools curriculum, warning her that she
679needed to change the curriculum or Respondent would shut down
689the school. One time, Respondent warned the director that you
699better watch your white ass. Seeing the director smoking a
709cigarette on school grounds during breaks, Respondent began
717videotaping the director from the street to document what
726Respondent viewed as illegal behavior.
7315. The purpose of Respondents actions is unclear, but
740does not seem to have been the betterment of the educational
751program at Grace Jones. When children in the custody of a
762relative of her husband attended Grace Jones, Respondent never
771volunteered to help at the school.
7776. However unclear the purpose of Respondents actions,
785their effect was to frighten the director, the teachers, and the
796students and disrupt the educational process at the school. The
806director eventually obtained a judicial order prohibiting
813Respondent from trespassing onto the Grace Jones grounds.
8217. Respondent repeatedly involved herself with the
828education of the two children who were in the custody of a
840relative of Respondent's husband. When one of the children was
850later attending Switlik, while Respondent was employed at the
859school, Respondent telephoned the childs guardian and informed
867her that the child had been misbehaving in school. When the
878guardian called the principal, the principal stated that the
887child had not been misbehaving. Respondent was not an aid in
898the childs classroom, and she violated Petitioners policy in
907communicating in this fashion directly to the childs guardian.
9168. Later, in January 2004, Respondent informed the
924guardian and the guardians sister, who is the biological mother
934of the children, that Switlik was failing one of the children.
945Again, Respondent was not an aid in the childs classroom, and
956she violated Petitioners policy in communicating in this
964fashion. Despite receiving a warning from the principal not to
974disclose confidential student information, Respondent continued
980to try to obtain educational information about these children,
989even though she had no right to such information.
9989. Frustrated that the guardian would not remove one or
1008both of the children from Switlik, Respondent threatened to call
1018the Department of Children and Family Services and inform them
1028that the guardian was engaged in illegal drug use. Although she
1039may never have followed through on this threat, she did call the
1051Department of Children and Family Services and inform them that
1061the childrens biological mother was residing with them and the
1071guardian, evidently in violation of some sort of prohibition
1080against this living arrangement. The record permits no findings
1089as to whether the guardian was engaged in illegal drug use or
1101the biological mother was residing with her children and the
1111guardian, but the record permits the finding that, in both
1121cases, the intention of Respondent in threatening to call or
1131calling the authorities was not to correct an intolerable
1140situation, but was to coerce the guardian to accede to
1150Respondent's demands.
115210. While employed at Switlik, Respondent had numerous
1160confrontations with numerous employees, including superiors.
1166Two of the more prominent confrontations involved Respondents
1174confrontation with a school bus driver, who occupied a
1183managerial role at Switlik as to transportation, and two aids,
1193who worked in a Head Start prekindergarten classroom at Switlik.
1203These incidents occurred during the 2002-03 school year.
121111. The problem with the school bus driver began in 2002.
1222Escorting one or more children to or from the school buses, as
1234was her responsibility, Respondent entered a bus loaded with
1243children and began directing them to sit down. When the bus
1254driver, who was on the bus, told Respondent to leave the bus,
1266Respondent angrily accused the bus driver of failing to
1275discharge her duty to protect the safety of the children. After
1286receiving complaints from the driver about Respondent and from
1295Respondent about the driver and the students standing in the
1305bus, the principal met with Respondent and told her not to
1316interfere with the bus driver and her supervision of the
1326students already on the bus.
133112. Despite the warning, Respondent later engaged in a
1340nearly identical confrontation during the 2002-03 school year.
1348When the principal sided again with the bus driver, Respondent
1358demanded a meeting with the superintendent to discuss her
1367problems with the bus driver and, now, the principal. Ignored
1377by the superintendent, Respondent contacted a school board
1385member and asked for a meeting.
139113. Obtaining no satisfaction from the school board
1399member, Respondent contacted the United States Department of
1407Education, Civil Rights Office, and Florida Department of
1415Education with her complaints about the bus driver and the
1425refusal of Petitioner's representatives to resolve the
1432situation.
143314. The problem with the Head Start aids initially
1442involved their choice of classroom attire. They wore shorts,
1451which Respondent considered to be cut too short. Possibly
1460arising out of Respondent's frustration at not being allowed to
1470wear a head scarf at school, Respondent complained to the
1480principal that the two women were allowed to wear shorts. A
1491picture of the shorts revealed that they were not suggestive or
1502inappropriate in length or style. To the contrary, shorts
1511permitted the aids to perform the physical activity imposed upon
1521them in working with young children.
152715. After Respondent complained about the aids' shorts,
1535the aids began to lock the classroom door to prevent Respondent
1546from taking a short-cut through the room when students were
1556present. Respondent complained about this, but, again, the
1564principal sided with the aids and directed Respondent to stop
1574cutting through the occupied classroom--a directive that
1581Respondent repeatedly ignored.
158416. Twice bested by the aids, Respondent pressed her
1593complaints about them to higher authorities. Respondent
1600informed the Monroe County director of Head Start of the
1610problem. When the county director referred Respondent back to
1619the principal, Respondent threatened to contact the Southeast
1627Director of Head Start in Atlanta and government representatives
1636in Washington.
163817. On October 8, 2003, the principal and other of
1648Respondent's employees, including the Human Relations Director,
1655participated in a meeting requested by Respondent to discuss her
1665concerns about events that had taken place at Switlik over a
1676period of time. At some point, the principal warned Respondent
1686about her disruption of the school environment and her
1695confrontational behavior. The principal warned that
1701Respondent's unprofessional behavior would lead to termination.
1708Respondent became belligerent and loudly denounced the Human
1716Relations Director as a liar. Two days later, Respondent
1725refused to sign a memorandum outlining what had taken place at
1736the meeting.
173818. The above incidents are largely drawn from
1746Respondent's testimony. However, there were numerous other
1753confrontations, such as with an office manager who asked that
1763Respondent wait a moment before the woman could get her paycheck
1774or repeated abuse of school email to hector Petitioner's
1783employees. There were also numerous other examples of
1791insubordination, such as Respondent's refusal to sign a
1799statement acknowledging Petitioner's anti-harassment policy and
1805her refusal to sign her evaluation at the end of the 2002-03
1817school year, which warned that her noncompliance with
1825Petitioner's policies was disrupting school operations.
183119. Dissatisfied with the resolution of all of these
1840matters, Respondent also filed complaints with the Department of
1849Health and Human Services and Equal Employment Opportunity
1857Commission about at least some of them.
186420. Two principals over several years have tried patiently
1873to counsel Respondent regarding her strident, uncooperative
1880behavior. At meetings, Respondent routinely took the offensive,
1888yelling and denouncing the participants by, among other things,
1897claiming that the current principal was not doing her job. An
1908endless pattern of complaints about problems perceived by no one
1918but Respondent preceded complaints about never-commenced or
1925incorrectly resolved investigations. The disruption upon the
1932educational process was evident and substantial.
193821. Respondent has not been chastened by less severe job
1948actions than termination. When Petitioner suspended Respondent
1955for three days from April 30 to May 2, 2003, Respondent's
1966response, upon her return to work, was to file a complaint about
1978the principal and, after a month of inaction on her complaint,
1989to email the superintendent and demand to know the status of his
2001investigation of her complaint. Failing to obtain a
2009satisfactory response from the superintendent, Respondent
2015submitted complaints about the principal and superintendent to
2023the Florida Department of Education. Finally, on August 14,
20322003, Respondent emailed the School Board members and asked for
2042a meeting about this problem.
204722. By undated letter in February or March 2004,
2056Petitioner's superintendent advised Respondent that she was
2063suspended with pay until the School Board meeting of April 1,
20742004, at which he would recommend termination. The letter
2083states that Respondent has violated Sections 1012.27(5) and
20911012.33, Florida Statutes, The Code of Ethics for Education
2100Professionals, and Petitioner's policies 6.37, 6.38, 2.70, 3.40,
2108and 5.70.
211023. By letter dated March 22, 2004, Petitioner's
2118superintendent advised that he would recommend at the April 1
2128School Board meeting that it convert Respondent's suspension
2136with pay to a suspension without pay, pending final action on
2147his recommendation to terminate Respondent's employment.
215324. Petitioner's policy 6.37 provides that Petitioner's
2160superintendent may suspend an employee until the next meeting of
2170the School Board. The policy provides a hearing under Chapter
2180120, Florida Statutes, to any employee who has a property
2190interest in his or her job.
2196CONCLUSIONS OF LAW
219925. The Division of Administrative Hearings has
2206Fla. Stat. (2004).
220926. Section 1012.01(2), Florida Statutes, provides that
2216educational paraprofessionals, such as Respondent, are
"2222instructional personnel."
222427. Section 1012.33(1)(a), Florida Statutes, and Florida
2231Administrative Code Rule 6B-4.009(4) authorize the termination
2238of an employment contract for "gross insubordination," which is
2247defined by the rule as: "as a constant or continuing
2257intentional refusal to obey a direct order, reasonable in
2266nation, and given by and with proper authority."
227428. Petitioner has the burden of proving the grounds for
2284termination by a preponderance of the evidence. McNeil v.
2293Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).
230529. Petitioner has proved that Respondent has repeatedly
2313refused to obey direct orders, essentially to allow the school
2323system to function as an educational resource, free from her
2333harassment of other employees trying to do their jobs.
2342Respondent continually chose to defy these directives, and
2350Petitioner consequently terminated her employment.
2355RECOMMENDATION
2356It is
2358RECOMMENDED that Petitioner enter a final order terminating
2366Respondent's employment.
2368DONE AND ENTERED this 25th day of October, 2004, in
2378Tallahassee, Leon County, Florida.
2382S
2383___________________________________
2384ROBERT E. MEALE
2387Administrative Law Judge
2390Division of Administrative Hearings
2394The DeSoto Building
23971230 Apalachee Parkway
2400Tallahassee, Florida 32399-3060
2403(850) 488-9675 SUNCOM 278-9675
2407Fax Filing (850) 921-6847
2411www.doah.state.fl.us
2412Filed with the Clerk of the
2418Division of Administrative Hearings
2422this 25th day of October, 2004.
2428COPIES FURNISHED:
2430John Padget, Superintendent
2433Monroe County School Board
2437Post Office Box 1788
2441Key West, Florida 33041-1788
2445Daniel J. Woodring, General Counsel
2450Department of Education
24531244 Turlington Building
2456325 West Gaines Street
2460Tallahassee, Florida 32399-0400
2463Scott E. Siverson
2466Vernis & Bowling of the
2471Florida Keys, P.A.
247481990 Overseas Highway
2477Islamorada, Florida 33036
2480Scott C. Black
2483Vernis & Bowling of the
2488Florida Keys, P.A.
249181990 Overseas Highway
2494Islamorada, Florida 33036
2497Diane Scott
2499Post Office Box 501586
2503Marathon, Florida 33050
2506NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2512All parties have the right to submit written exceptions within
252215 days from the date of this recommended order. Any exceptions
2533to this recommended order must be filed with the agency that
2544will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 05/31/2005
- Proceedings: Letter to Judge Cohen from D. Scott advising of exceptions to the Recommended Order filed.
- PDF:
- Date: 11/09/2004
- Proceedings: Petitioner`s Motion for Enlargement of Time to File Final Order (filed via facsimile).
- PDF:
- Date: 10/25/2004
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 10/08/2004
- Proceedings: Report and Recommended Order (filed by Petitioner via facsimile).
- PDF:
- Date: 09/30/2004
- Proceedings: Petitioner`s Motion for Enlargement of Time to file Report and Recommended Order (filed via facsimile).
- Date: 09/20/2004
- Proceedings: Transcript filed.
- Date: 08/18/2004
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 08/17/2004
- Proceedings: Petitioner`s Motion for Reconsideration and Motion for Witnesses to Appear by Telephone (filed via facsimile).
- PDF:
- Date: 08/11/2004
- Proceedings: Order Denying Continuance (final hearing to proceed as scheduled).
- PDF:
- Date: 07/07/2004
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for August 18, 2004; 9:00 a.m.; Marathon, FL).
- PDF:
- Date: 06/22/2004
- Proceedings: Notice of Hearing (hearing set for July 29, 2004; 9:00 a.m.; Marathon, FL).
- PDF:
- Date: 06/16/2004
- Proceedings: Petitioner`s Compliance with June 10, 2004 Order (filed via facsimile).
- PDF:
- Date: 06/16/2004
- Proceedings: Letter to Judge Meale from D. Scott in reply to Initial Order (filed via facsimile).
Case Information
- Judge:
- ROBERT E. MEALE
- Date Filed:
- 04/09/2004
- Date Assignment:
- 06/10/2004
- Last Docket Entry:
- 05/31/2005
- Location:
- Marathon, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- TTS
Counsels
-
Diane Scott
Address of Record -
Scott E Siverson
Address of Record -
Scott E. Siverson
Address of Record