04-002060TTS Monroe County School Board vs. Diane Scott Status: Closed Recommended Order on Monday, October 25, 2004.

Summary: Petitioner has proven Respondent, a para-professional, was grossly insubordinate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04-2060

)

DIANE SCOTT, f/k/a DIANE )

HILL-SCOTT, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Marathon, Florida, on August 18, 2004.

APPEARANCES

For Petitioner: Scott E. Siverson

Scott C. Black

Vernis & Bowling of the

Florida Keys, P.A.

81990 Overseas Highway

Islamorada, Florida 33036

For Respondent: Diane Scott, pro se

Post Office Box 501586

Marathon, Florida 33050

STATEMENT OF THE ISSUE

The issue is whether Petitioner may terminate Respondent's employment contract due to repeated acts of harassment, gross insubordination, and violations of Petitioner's policies.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 15, 2004,

Petitioner alleged that it employed Respondent as an aid at the

Stanley Switlik School. The Administrative Complaint alleges

that Respondent became enraged and began yelling at her

supervisors at a meeting on October 8, 2003, to address her

recent acts of aggression and harassment toward coworkers. On

January 6, 2004, Petitioner allegedly learned that an employee

of Grace Jones School had requested a restraining order against

Respondent to stop her threatening and aggressive behavior

toward the employee. On February 13, 2004, Petitioner allegedly

learned that Respondent was displaying aggressive behavior

toward a parent and had improperly disclosed confidential

student information. On March 8, 2004, Petitioner allegedly

learned that a parent had requested a restraining order against

Respondent.

The Administrative Complaint alleges that Respondent has

engaged in repeated acts of harassment, insubordination, and

violations of School Board policy during her employment with

Respondent. The Administrative Complaint alleges that

Respondent has perpetrated at least five documented cases of

harassment of coworkers, and she has received at least three

written reprimands and multiple verbal warnings concerning her

improper pattern of conduct. The Administrative Complaint

alleges that Respondent has refused to sign and acknowledge

Petitioner's anti-harassment policy, and she has received

unsatisfactory evaluations for the 2002 and 2003 school years.

At the hearing, Petitioner called seven witnesses and

offered into evidence 20 exhibits: Petitioner Exhibits 1-18 and

20-21. Respondent called three witnesses and offered into

evidence two exhibits: Respondent Exhibits 1-2. All exhibits

were admitted.

The court reporter filed the transcript on September 20,

2004. Petitioner filed a proposed recommended order on

October 8, 2004.

FINDINGS OF FACT

1. Until her last day of work on March 15, 2004,

Respondent had worked for over 13 years at Stanley Switlik

Elementary School (Switlik) in Marathon. Switlik is a public

school. For most of her career with Petitioner, Respondent

worked as an aid in the exceptional student education (ESE)

prekindergarten program. During the 2003-04 school year,

Respondent worked as a 1:1 aid to a student in a varying

exceptionalities class. At all material times, Respondent was

classified as noncertified instructional staff.

2. For at least the past couple of years, Respondent was

dissatisfied by much of what took place around her at work and

in the local education community. In the past two years,

Respondent has filed complaints with three federal agencies

(Department of Education, Department of Health and Human

Services, and Equal Employment Opportunity Commission), two

state agencies (Department of Education and Department of

Children and Family Services), and one local agency

(Petitioner). The 13 subjects of these complaints include two

principals of Switlik, two superintendents of Monroe County

Public Schools, various teachers and teacher aids, and a

relative of her husband. The record discloses no basis for

finding any merit whatsoever in any of these complaints.

3. In June 2002, Respondent walked into a classroom at the

Grace Jones Day Care Center, which is a not-for-profit school in

Respondent’s neighborhood, and entered a class with sleeping

preschool children. Respondent approached the new director of

Grace Jones and confronted her about the school's curriculum.

The bewildered director spoke to Respondent for a few moments

before realizing that Respondent had no children at the school.

4. In the ensuing weeks, Respondent continued to challenge

the director about the school’s curriculum, warning her that she

needed to change the curriculum or Respondent would shut down

the school. One time, Respondent warned the director that “you

better watch your white ass.” Seeing the director smoking a

cigarette on school grounds during breaks, Respondent began

videotaping the director from the street to document what

Respondent viewed as illegal behavior.

5. The purpose of Respondent’s actions is unclear, but

does not seem to have been the betterment of the educational

program at Grace Jones. When children in the custody of a

relative of her husband attended Grace Jones, Respondent never

volunteered to help at the school.

6. However unclear the purpose of Respondent’s actions,

their effect was to frighten the director, the teachers, and the

students and disrupt the educational process at the school. The

director eventually obtained a judicial order prohibiting

Respondent from trespassing onto the Grace Jones grounds.

7. Respondent repeatedly involved herself with the

education of the two children who were in the custody of a

relative of Respondent's husband. When one of the children was

later attending Switlik, while Respondent was employed at the

school, Respondent telephoned the child’s guardian and informed

her that the child had been misbehaving in school. When the

guardian called the principal, the principal stated that the

child had not been misbehaving. Respondent was not an aid in

the child’s classroom, and she violated Petitioner’s policy in

communicating in this fashion directly to the child’s guardian.

8. Later, in January 2004, Respondent informed the

guardian and the guardian’s sister, who is the biological mother

of the children, that Switlik was failing one of the children.

Again, Respondent was not an aid in the child’s classroom, and

she violated Petitioner’s policy in communicating in this

fashion. Despite receiving a warning from the principal not to

disclose confidential student information, Respondent continued

to try to obtain educational information about these children,

even though she had no right to such information.

9. Frustrated that the guardian would not remove one or

both of the children from Switlik, Respondent threatened to call

the Department of Children and Family Services and inform them

that the guardian was engaged in illegal drug use. Although she

may never have followed through on this threat, she did call the

Department of Children and Family Services and inform them that

the children’s biological mother was residing with them and the

guardian, evidently in violation of some sort of prohibition

against this living arrangement. The record permits no findings

as to whether the guardian was engaged in illegal drug use or

the biological mother was residing with her children and the

guardian, but the record permits the finding that, in both

cases, the intention of Respondent in threatening to call or

calling the authorities was not to correct an intolerable

situation, but was to coerce the guardian to accede to

Respondent's demands.

10. While employed at Switlik, Respondent had numerous

confrontations with numerous employees, including superiors.

Two of the more prominent confrontations involved Respondent’s

confrontation with a school bus driver, who occupied a

managerial role at Switlik as to transportation, and two aids,

who worked in a Head Start prekindergarten classroom at Switlik.

These incidents occurred during the 2002-03 school year.

11. The problem with the school bus driver began in 2002.

Escorting one or more children to or from the school buses, as

was her responsibility, Respondent entered a bus loaded with

children and began directing them to sit down. When the bus

driver, who was on the bus, told Respondent to leave the bus,

Respondent angrily accused the bus driver of failing to

discharge her duty to protect the safety of the children. After

receiving complaints from the driver about Respondent and from

Respondent about the driver and the students standing in the

bus, the principal met with Respondent and told her not to

interfere with the bus driver and her supervision of the

students already on the bus.

12. Despite the warning, Respondent later engaged in a

nearly identical confrontation during the 2002-03 school year.

When the principal sided again with the bus driver, Respondent

demanded a meeting with the superintendent to discuss her

problems with the bus driver and, now, the principal. Ignored

by the superintendent, Respondent contacted a school board

member and asked for a meeting.

13. Obtaining no satisfaction from the school board

member, Respondent contacted the United States Department of

Education, Civil Rights Office, and Florida Department of

Education with her complaints about the bus driver and the

refusal of Petitioner's representatives to resolve the

situation.

14. The problem with the Head Start aids initially

involved their choice of classroom attire. They wore shorts,

which Respondent considered to be cut too short. Possibly

arising out of Respondent's frustration at not being allowed to

wear a head scarf at school, Respondent complained to the

principal that the two women were allowed to wear shorts. A

picture of the shorts revealed that they were not suggestive or

inappropriate in length or style. To the contrary, shorts

permitted the aids to perform the physical activity imposed upon

them in working with young children.

15. After Respondent complained about the aids' shorts,

the aids began to lock the classroom door to prevent Respondent

from taking a short-cut through the room when students were

present. Respondent complained about this, but, again, the

principal sided with the aids and directed Respondent to stop

cutting through the occupied classroom--a directive that

Respondent repeatedly ignored.

16. Twice bested by the aids, Respondent pressed her

complaints about them to higher authorities. Respondent

informed the Monroe County director of Head Start of the

problem. When the county director referred Respondent back to

the principal, Respondent threatened to contact the Southeast

Director of Head Start in Atlanta and government representatives

in Washington.

17. On October 8, 2003, the principal and other of

Respondent's employees, including the Human Relations Director,

participated in a meeting requested by Respondent to discuss her

concerns about events that had taken place at Switlik over a

period of time. At some point, the principal warned Respondent

about her disruption of the school environment and her

confrontational behavior. The principal warned that

Respondent's unprofessional behavior would lead to termination.

Respondent became belligerent and loudly denounced the Human

Relations Director as a liar. Two days later, Respondent

refused to sign a memorandum outlining what had taken place at

the meeting.

18. The above incidents are largely drawn from

Respondent's testimony. However, there were numerous other

confrontations, such as with an office manager who asked that

Respondent wait a moment before the woman could get her paycheck

or repeated abuse of school email to hector Petitioner's

employees. There were also numerous other examples of

insubordination, such as Respondent's refusal to sign a

statement acknowledging Petitioner's anti-harassment policy and

her refusal to sign her evaluation at the end of the 2002-03

school year, which warned that her noncompliance with

Petitioner's policies was disrupting school operations.

19. Dissatisfied with the resolution of all of these

matters, Respondent also filed complaints with the Department of

Health and Human Services and Equal Employment Opportunity

Commission about at least some of them.

20. Two principals over several years have tried patiently

to counsel Respondent regarding her strident, uncooperative

behavior. At meetings, Respondent routinely took the offensive,

yelling and denouncing the participants by, among other things,

claiming that the current principal was not doing her job. An

endless pattern of complaints about problems perceived by no one

but Respondent preceded complaints about never-commenced or

incorrectly resolved investigations. The disruption upon the

educational process was evident and substantial.

21. Respondent has not been chastened by less severe job

actions than termination. When Petitioner suspended Respondent

for three days from April 30 to May 2, 2003, Respondent's

response, upon her return to work, was to file a complaint about

the principal and, after a month of inaction on her complaint,

to email the superintendent and demand to know the status of his

investigation of her complaint. Failing to obtain a

satisfactory response from the superintendent, Respondent

submitted complaints about the principal and superintendent to

the Florida Department of Education. Finally, on August 14,

2003, Respondent emailed the School Board members and asked for

a meeting about this problem.

22. By undated letter in February or March 2004,

Petitioner's superintendent advised Respondent that she was

suspended with pay until the School Board meeting of April 1,

2004, at which he would recommend termination. The letter

states that Respondent has violated Sections 1012.27(5) and

1012.33, Florida Statutes, The Code of Ethics for Education

Professionals, and Petitioner's policies 6.37, 6.38, 2.70, 3.40,

and 5.70.

23. By letter dated March 22, 2004, Petitioner's

superintendent advised that he would recommend at the April 1

School Board meeting that it convert Respondent's suspension

with pay to a suspension without pay, pending final action on

his recommendation to terminate Respondent's employment.

24. Petitioner's policy 6.37 provides that Petitioner's

superintendent may suspend an employee until the next meeting of

the School Board. The policy provides a hearing under Chapter

120, Florida Statutes, to any employee who has a property

interest in his or her job.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

Fla. Stat. (2004).

26. Section 1012.01(2), Florida Statutes, provides that

educational paraprofessionals, such as Respondent, are

"instructional personnel."

27. Section 1012.33(1)(a), Florida Statutes, and Florida

Administrative Code Rule 6B-4.009(4) authorize the termination

of an employment contract for "gross insubordination," which is

defined by the rule as: "as a constant or continuing

intentional refusal to obey a direct order, reasonable in

nation, and given by and with proper authority."

28. Petitioner has the burden of proving the grounds for

termination by a preponderance of the evidence. McNeil v.

Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

29. Petitioner has proved that Respondent has repeatedly

refused to obey direct orders, essentially to allow the school

system to function as an educational resource, free from her

harassment of other employees trying to do their jobs.

Respondent continually chose to defy these directives, and

Petitioner consequently terminated her employment.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order terminating

Respondent's employment.

DONE AND ENTERED this 25th day of October, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of October, 2004.

COPIES FURNISHED:

John Padget, Superintendent

Monroe County School Board

Post Office Box 1788

Key West, Florida 33041-1788

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399-0400

Scott E. Siverson

Vernis & Bowling of the

Florida Keys, P.A.

81990 Overseas Highway

Islamorada, Florida 33036

Scott C. Black

Vernis & Bowling of the

Florida Keys, P.A.

81990 Overseas Highway

Islamorada, Florida 33036

Diane Scott

Post Office Box 501586

Marathon, Florida 33050

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 must be filed with the agency that

will issue the final order in this case.