05-001329 Orange County School Board vs. Beatrice Yazbeck Status: Closed Recommended Order on Wednesday, September 14, 2005.

Summary: Respondent is guilty of violating the work rule and the Principles of Professional Conduct, as well as misconduct in the office by writing an e-mail containing anti-racial and anti-gay comments, which was transmitted on School Board equipment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1329

)

BEATRICE YAZBECK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notic e, a formal hearing was held in this case

before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings , on June 23, 2005, in

Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Brian F . Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 3280 2 - 0271

For Respondent: Donald D. Hockman, Esquire

Hockman, Hockman & Hockman

2670 West Fairbanks Avenue

Win ter Park, Florida 32789

STATEMENT OF THE ISSUES

Whether Respondent, Beatrice Yazbeck, a guidance couns elor

under contract with Petitioner , Orange County School Board,

violated an express work rule of Petitioner's Management

Directive A - 9; and whether R espondent violated Florida

Administrative Code Rule 6B - 1.006(5)(d) and (e), by committ ing

misconduct in office; and, if so, whether any such offense

provides just cause for discipline up to , and including ,

dismissal of Respondent pursuant to Subsection 101 2.33(1)(a),

Florida Statutes (2004).

PRELIMINARY STATEMENT

On March 8, 2005, Ronald Blocker , in his capacity as

Superintendent of Schools for the Orange County School District

(the District) , filed an Administrative Complaint against

Beatrice Yazbeck , Re spondent, alleging misconduct in office and

other offenses. Respondent denied the allegations and requested

a formal administrative hearing before the Divi sion of

Administrative Hearings (DOAH) . On March 15, 2005, the Orange

County School Board, Petition er, granted Respondent's request

for a formal hearing and, t hereafter, this matter was referred

to DOAH on April 13, 2005. This matter was set for hearing and

discovery ensued.

In her Answer, Respondent demanded Preservation of

Evidence, specifically, all the e - mail s of any Orange County

Public School (OCPS) employee s . In discovery, Respondent sought

production of all e - mail s in the OCPS system and , particularly ,

those on her computer at Winter Park High School ( WPHS ) . Upon

discovering that Petitioner has changed its computer server

hardware and that the e - mail s were not economically available to

her, Respondent filed a Motion to Dismiss the Administrative

Complaint as the Sanction for Spoliation of Evidence. This

motion was heard by telephone confere nce call on June 20, 2005,

and denied.

The final hearing was conducted on June 23, 2005.

Petitioner presented four witnesses: Mary Brinson, WPHS math

teacher; Kim r ey Ross - Myers, W PHS assistant principal; William

Gordon, W PHS principal; and Donald Sheare r, senior manage r in

the E mployee R elations D epartment . Petitioner offered

13 exhibits , all of which were received into evidence.

Respondent appeared and testified on her own behalf and offered

one exhibit, which was received into evidence. Petitioner a nd

Respondent jointly offered the deposition testimony of

Superintendent Blocker.

The Transcript of the final hearing was ordered and filed

with DOAH on July 26, 2005. Both parties waived the time for

filing post - hearing submittals and filed P roposed R ec ommended

O rders on August 22 and 23, 2005, respectively. Both parties '

proposals have been given careful consideration in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence received at the final hearing, the

following F ind ings of F act are made:

1. Petitioner is the governing board of the Orange County

School District , and Ronald Blocker is the Superintendent of

Orange County Public Schools and the executive officer of

Petitioner.

2. Respondent is employed by Petitioner as a high school

guidance counselor at the campuses of WPHS and the Winter Park

Ninth Grade Center (Ninth Grade Center) . She h as held a

P rofessional S ervices C ontract with Petitioner for several

years.

3. Respondent's employment is subject to a C ollecti ve

B argaining A greement referred to as the "Contract Between the

School Board of Orange County, Florida, and the Orange County

Classroom Teachers' Association, 2004 - 2005. "

4. Article XII of the Collective Bargaining Agreement

pertains to employee discipl ine and provides:

(1) An employee may be disciplined only

for just cause and discipline shall be

imposed only for a violation of an expressed

rule, an expressed order, an expressed

policy or reasonable expectation of

management, which reasonably should have

been known to the employee. This shall not

be construed as to prohibit the

administrator from questioning an employee

and/or offering reasonable direction at the

time of the occurrence of any incident, the

result of which might later be dealt with in

a disciplinary manner.

(2) Any teacher may be suspended or

dismissed at any time during the year,

provided that the charges against him/her

are based on immorality, misconduct in

office, incompetency, gross insubordination,

willful neglect of duty, dr unkenness, or

conviction of any crime involving moral

turpitude where applicable, and in

accordance with Florida Statutes.

5. Respondent, as a member of the instructional staff of

Petitioner , is required to abide by the "Code of Ethics of the

Education Profession in Florida ( Code of Ethics ) . " Fla . Admin .

Code R . 6B - 1.006 (5) .

6. The State Board of Education established "Principles of

Professional Conduct for the Education Profession in Florida

( Principles of Professional Conduct ) " that specifically req uire

that educators:

(d) shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional or work responsibilities or

with the orderly process es of education or

which creates a hosti le, intimidating,

abusive, offensive, or oppressive

environment; and , further , shall make

reasonable effort to assure that each

individual is protected form such harassment

or discrimination.

(e) shall not make malicious or

intentionally false statemen ts about a

colleague.

Fla . Admin . Code R . 6B - 1.006(5).

7. At the start of the 2004/2005 school year, Respondent

was provided a copy of the WPHS's Faculty Handbook, which

contained Petitioner's Management Directive A - 9. Management

Directive A - 9 is a wo rk rule prohibiting employees from

misusing school computers and internet access for personal,

non - educational activities. Management Directive A - 9 provides,

in pertinent part:

3. Employee Access to Network

e. The District authorizes employees to

u se District computer technology resources

and data bases for assigned

responsibilities. These resources shall be

used by employees to enhance job

productivity as it relates to District

business. These resources shall be used for

District - related purposes and not for

personal use or gain or for the benefit of

private, "for profit" or "not for profit"

organizations.

4. Network Security and Acceptable Use

b. Internet resources and e - mail shall be

u s ed by employees to enhance job

productivity as they relate to District

business and shall not be used to send

abusive, threatening or harassing messages.

Employees shall refrain from communications

where the meaning of the message, or its

transmission or distribution, would be

illegal, unethical or irresp onsible . . . .

* * *

6. Due Process

a. Any employee failing to comply with

this Management Directive may be subject to

disciplinary action as well as civil

liability or criminal charges.

8. At the beginning of the 2003 /2004 school year,

Respon dent was involuntarily transferred from Evans High School

(EHS) to WPHS. EHS is also racially diverse , however, both the

student and faculty population is predominately African -

American.

9. WPHS has a student population of approximately 3,800

students a nd 308 staff members. The student population at WPHS

is racially diverse with between 18 percent and 19 percent of

the students being African - American. The faculty at WPHS is

equally diverse. Within the past two years, WPHS has had an

increase in racial diversity among its students due, in

significant part, to the advent of o pportunity s cholarships

which enable students of underperforming schools to transfer to

other schools within the D istrict.

10. Mary Brinson is an African - American mathematics

teache r at WPHS, who has been employed with Petitioner for

30 years.

11. At all times material, Kimrey Ross - Myers was employed

as assistant principal for instruction for WPHS and was the

assessing administrator of Respondent. William Gordon was

employed as pri ncipal at WPHS.

12. Donald Shearer is a senior manager in the E mployee

R elations D epartment of Petitioner.

13. On January 7, 2005, Respondent, while on duty in the

guidance counselor's office at the Ninth Grade Center, composed

a personal e - mail to her b rother using the school's computer.

Among other things, this e - mail contained the following passage:

Finally, this at the end of too many

horrible experiences of struggle, stress and

strife imposed by inept, incompetent,

ignorant persons of color and this dike on

our main campus whom I have finally

discovered may be the culprit responsible

for the problems I've had with this female

administrator, Kimrey.

Funny, isn't it, after all the shit I've put

up with at the hand of black folks, I still

can't get mys elf to use the n word. Wonder

why???? I'll try to talk to you soon.

14. On January 7, 2005, Respondent accidentally touched

the print button, rather than the send button on her computer,

which printed the e - mail at a printer networked to the WPHS

campu s. Recognizing this error, Respondent departed the Ninth

Grade Center and drove to WPHS to retrieve the printed e - mail.

1 5 . Unbeknownst to both Mary Brinson and Respondent, the

e - mail printed among Ms. B rinson's school grade reports which

Ms. Brinson had collected for processing. While reviewing her

student grade reports, Ms. Brinson came upon Respondent's e - mail

of January 7, 2005, and was alarmed by its demeaning,

discriminatory content.

1 6 . Troubled by the fact that the e - mail was authored by a

sch ool guidance counselor with whom she had professional

contact, Ms. Brinson took it home , and on Monday , gave the

e - mail to Kimrey Ross - Myers for handling within her discr etion.

1 7 . Ms. Brinson advised Ms. Ross - Myers of the e - mail

because she regarded its content as evidencing discriminatory

conduct directed at African - Americans and lesbians. Further,

she advised Ms. Ross - Myers of the e - mail because she was

required to abide by the Code of Ethics r equiring that she

protect against harassment and discrimina tion.

1 8 . Ms. Ross - Myers took it to Principal Gordon , who, in

turn, referred the e - mail to Mr. Shearer of Petitioner's

E mployee R elations Department .

1 9 . Upon learning of the January 7, 2005, e - mail,

Mr. Shearer instructed the D istrict staff to review Re spondent's

computer for other similarly offensive e - mail s . Two such

e - mails were retrieved: one composed by Respondent on May 25,

2004, at 6:47 p.m., and the other on October 7, 2004, at 9:43

a.m., which was transmitted during school hours.

20 . In the e - mail composed by Respondent on May 25, 200 4 ,

she criticized Ms. Ross - Myers, writing:

My work and my nemesis, this evil

administrator from hell didn't want me to

stay here, has me running around in circles.

2 1 . Respondent, again, criticized her immediate

supervisor, M s . Ross - Myers, in her e - mail of October 7, 2004,

writing:

Kimrey is the Assistant Principal who was on

my case from day one. I was transferred to

this school on short notice (one week before

the beginning of school) after a perfect

evaluatio n and realignment to the school

that transferred me.

2 2 . Referring to her former principal at EHS , Elaine

Scott, Respondent also wrote in her e - mail of October 7, 2004:

The principal, an ignorant black female,

gave all the Counselors a serious ultimatum

about our performance, although all of us

had gotten impeccable evaluations.

2 3 . The e - mail s of May 25, 2004, and October 7, 2004, were

transmitted via Petitioner's internet account to Respondent's

brother.

2 4 . Principal Gordon testified that after cons idering all

three e - mails composed by Respondent, he became concerned that

Respondent may be prejudiced against African - Americans. The

ostensibly discriminatory content of the e - mail s , combined with

all reasonable inferences that could fairly be drawn fro m them,

caused Principal Gordon to believe that Respondent's

effectiveness to serve as a high school guidance counselor had

been seriously compromised.

2 5 . Petitioner has adopted a Code of Civility that applies

to student s and staff alike. During the 200 4/2005 school year,

the Code of Civility was published within the Student Code of

Conduct. The Code of Civility specifically prohibits

individuals from ethnic stereotyping and uttering slurs. The

Code of Student Conduct also prohibits demeaning, abusive, or

obscene content in any communication.

2 6 . The e - mails composed by Respondent on January 7, 2005,

and October 7, 2004, violate standards of conduct expressly

incorporated into the Code of Civility.

2 7 . M s. Brinson, Ms. Ross - Myers, Principal Gordon , an d

Superintendent Blocker testified that these e - mails,

individually and collectively, caused them to question whether

Respondent would interact with students in a fair and equitable

fashion while serving in her role as a high school guidance

counselor. Th ese concerns were elevated to the extent that

Principal Gordon, Ms. Ross - Myers , and M s. Brinson testified that

they would refrain from referring students to Respondent for

counseling on matters of racial or sexual orientation

sensitivity.

2 8 . The " black " administrator Respondent referred to in

her e - mail of October 7, 2004, as "ignorant" is EHS principal,

Elaine Scott. At the final hearing, Respondent admitted she

inaccurately characterized P rincipal Scott as being "ignorant."

2 9. When criticizing her pr evious administrators at EHS,

Respondent associated their race with her finding that they were

ignorant, inept, or incompetent. When offering criticism of

Caucasian administrators, namely Ms. Ross - Myers, Respondent

omitted any racial reference.

30 . Respo ndent testified with respect to her e - mail of

January 7, 2005, that the statements therein were true and that

she "had many horrible experiences, struggles, stress and strife

imposed by inept, incompetent, ignorant persons of color," while

serving as a gui dance counselor at EHS . Respondent further

testified that she did not intend to stereotype

African - Americans i n a derogatory manner and that she was

referring to four specific African - American administrators with

whom she worked: James Lawson, Elaine Sco tt, Chuck Rivers , and

Joe Salsby.

31 . Respondent gave credible testimony relating to her

referring to the "n" word, but not using it. This explanation

is that she considers the use of the "n" word to be racist and a

horrible thing to say to a person of c olor and that is why she

could not use it.

32 . Both Ms. Ross - Myers and Principal Gordon testified

that they have had professional contact with these four

administrators and confirmed that they are regarded by their

peers as being capable, competent , and p rofessional. However,

no additional investigation was conducted.

33 . The term "dike [sic] , " as used in the context of the

e - mail , is a disparaging term for a lesbian. Respondent refused

to identify the female staff member who was the target of her

slur and testified , "I would never put that label on anyone."

Despite this denunciation, Respondent did so use this term to

disparage a co - worker and, further, did so without any knowledge

of her co - worker's true sexual orientation.

34 . Respondent testified t hat she does not use the term

"dyke" in public to put labels on people. The term was

suggested to her in a telephone conversation by her homosexual

brother after she described the conduct of a specific person

toward her. In the e - mail to her brother, Res pondent used the

word as an identifying term to refer to the person by the

appellation which her brother had already used for that person.

Respondent is so unfamiliar with the word that she misspelled it

as "dike" in her e - mail.

3 5 . Respondent assailed M s. Brinson's motives in coming

forward and reporting her accidental discovery of the January 7,

2004, e - mail. Respondent accused Ms. Brinson of "snooping" and

of being an "intermeddler , " who purposely schemed to get

Respondent "fired." At the final heari ng, Respondent further

accused Ms. Brinson of having committed professional misconduct

in reporting the e - mail to her supervisor.

3 6 . Respondent admitted violating Management Directive A - 9

when she used the District's computer and internet account to

writ e and transmit a personal e - mail to her brother. Two of the

subject e - mail s were composed during school hours.

3 7 . Prior to the filing of administrative charges against

Respondent, Petitioner had discharged other employees for

violating Management Direct ive A - 9, by misusing the District's

computer network to compose and send e - mails for personal gain

or for transmitting e - mails with obscene and abusive content.

3 8 . Superintendent Blocker further testified that he

believed that Respondent's misconduct vio lated Petitioner's

anti - discrimination policy that requires all OCPS employees to

act with impartiality and fairness in dealing with co - workers,

students, and the public at large.

3 9 . In Petitioner's Administrative Complaint of March 8,

2005, Petitioner a lleges that: 1) Respondent violated

Management Directive A - 9 in misuse of the District 's computer

network to compose and transmit e - mail that demeaned African -

Americans and which contained a slur against lesbians;

2) Respondent violated Subsection 1012.79 5(1), Florida Statutes

(2004), by committing misconduct in office , which seriously

reduced her effectiveness as an employee; 3) Respondent violated

the Code of Ethics and the Principles of Professional Conduct,

Florida Administrative Code Rule 6B - 1.006(5)( d) and (e); and

4) Respondent engaged in misconduct in office, willful neglect

of duty, gross insubordination, and conduct unbecoming of an

employee in breach of Respondent's employment agreement with

Petitioner.

4 0 . There is no evidence that Respondent c ommitted any act

of sexual discrimination against any person or group of persons.

4 1 . There is no evidence that Respondent failed to deliver

appropriate counseling services to any student or group of

students.

4 2 . There is no evidence that Respondent eve r failed to

deliver appropriate services to any student, allowed harm to any

student, or committed harm to any student for any reason,

including the racial or sexual orientation diversity of any

student.

4 3 . There is no evidence of harm to any student of

diversity by Respondent during her entire career in education.

4 4 . There was no investigation as to whether Respondent

was, in fact, racially prejudiced or whether she was, in fact,

prejudiced against persons of alternative sexual orientation.

Rather, Pe titioner ascribed racial and sexual prejudice to her

based entirely on the content of the thoughts expressed in her

e - mail, which was intended to be a private communication and was

not intended for exposure by any person who might be offended

by it.

4 5 . All of Petitioner's witnesses admitted that their

concern about Respondent's effectiveness as a counselor is

anticipatory.

4 6 . The preponderance of the evidence proves that

Respondent violated Management Directive A - 9 by misusing the

District's computer n etwork to compose and transmit e - mail s that

demeaned African - Americans and which contained a slur against

lesbians.

4 7 . Respondent violated Subsection 1012.795(1), Florida

Statutes (2004), by committing misconduct in office, which

seriously reduced her ef fectiveness as an employee.

48 . Respondent violated the Code of Ethics and Principles

of Professional Conduct. Fla. Admin. Code R. 6B - 1.006(5)(d)

and (e)

49 . Respondent engaged in conduct unbecoming of an

employee in breach of Respondent's employment ag reement with

Petitioner.

CONCLUSIONS OF LAW

5 0 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of these

proceedings. §§ 120.569, 120.57(1) , and 1012. 3 3, Fla. Stat.

(2004).

5 1 . Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Respondent committed the acts alleged in the Administrative

Complaint and the reasonableness of the proposed disciplinary

action. Ferris v. Austin , 487 So. 2d 1163 (Fla. 5th DCA 1986).

5 2 . The standard for termination of a member of the

instructional staff subject to a P rofessional S ervices C ontract

is just cause , including, but not limited to, misconduct in

office. § 1012. 3 3(1)(a), Fla. Stat. (2004). Just cause f or

discipline , up to and including termination , is not limited to

the list of offensive conduct set forth in Section 1012. 3 3,

Florida Statutes (2004). Dietz v. Lee County School Board , 647

So. 2d 217 (Fla. 2d DCA 1994) (applying Section 231.36, Florida

St atutes (2004), since renumbered as Section 1012. 3 3, Florida

Statutes (2004)).

5 3 . Courts have found just cause to support a discharge

where the employee violates a universal standard of behavior

that an employer has a right to expect from its employees. See

Autoliv ASP, Inc. v. Department of Work force Services , 29 P.3d 7

(U tah Ct. App. 2001 ) (finding just cause to terminate an

employee and deny benefits under the Employment Security Act for

e - mail transmissions containing sexually explicit content).

5 4 . Management Directive A - 9 expressly incorporates

universally - accepted minimum standards of professional conduct

that Petitioner had a right to expect Respondent to conform

during her employment as a high school guidance counselor.

Petitioner has establis hed that Respondent had actual knowledge

of the conduct that Petitioner expected through her receipt of

the f aculty h andbook. Additionally, the conduct standards at

issue here are so universally accepted within the public school

setting that Respondent ca nnot persuasively argue that she was

unaware of the hazard of transmitting offensive e - mail s across

the District's computer network. Autoliv , 29 P.3d at 11 .

5 5 . Petitioner has established a consistent practice of

discharging employees for violating Manag ement Directive A - 9,

where the employee misused the District's network during the

course of their employment to transmit e - mail s with

inappropriate content. Therefore, Respondent's discharge would

not be arbitrary. C f. Osram Sylvania, Inc. v. Teamsters L ocal

Union 528 , 87 F.3d 1261 , 1265 (11th Cir . 1996).

5 6 . Just cause , within the meaning of Section 1012.33,

Florida Statutes (2004), exists to terminate Respondent's

employment for misuse of the District's computer network to

transmit e - mail s with ostensi bly abusive, discriminatory content

in violation of Petitioner's Management Directive A - 9.

5 7 . Petitioner, as a public agency, has a lawful duty to

protect its employees from harassment in the workplace. Title

VII of the Civil Rights Act of 1964 requires that employers T ake

affirmative steps to maintain a workplace free of harassment and

investigate and take prompt, effective remedial action where

potentially harassing conduct is discovered. A failure to

discharge this duty would expose Petitioner and it s employees to

civil liability. See Faragher v. City of Boca Raton , 524 U.S.

775, 118 S. Ct. 2275 (1998). Upon the discovery of the e - mail

composed by Respondent on January 7, 2005, Petitioner was

obligated by law to act upon same and protect employees f rom

potentially harassing conduct and protect itself from exposure

to a civil action based on race or sex discrimination.

58 . Petitioner has also established just cause to

discharge Respondent for "misconduct in office," which is

defined as any violation of the Code of Ethics and the

Principles of Professional Conduct. Fla. Adm in . Code R.

6B - 4.009(3). The misconduct must rise to the level of causing

Respondent 's effectiveness in the school system to be seriously

impaired. Id.

59 . The Code of Ethics pro vides that Respondent:

Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional work responsibilities or

with the orderly process of education or

which creates a hostile, intimi dating,

abusive, offensive or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

Fla. Admin. Code R. 6B - 1.006(5)(d).

6 0 . Petitioner has established that Respondent breached

this Rule by failing to protect others from exposure to a

hostile, offensive, or oppressive environment, as well. First,

Respondent affirmatively engaged in discriminatory conduct when

she composed the January 7, 2005, e - mail, which, t hrough her own

negligence, did cause an offensive work environment for

M s. Brinson, when it was accidentally discovered by her. Second

and more importantly, Respondent did violate her duty to make a

reasonable effort to protect against harassment or

discr imination when she authored the e - mails of October 7, 2004,

and January 7, 2005. Also, Respondent's assault upon

Ms. Brinson's character , accusing her of "snooping" and being an

"intermeddler" motivated by ill - will to get her fired , given the

record evide nce, is further evidence of Respondent's breach of

duty to protect against harassment and discrimination.

6 1 . Ms. Brinson met her obligation to the education

profession by making a discrete report of the ostensibly

offensive e - mail authored by a colleague of hers. For

Respondent to intentionally assail Ms. Brinson's motives without

any reasonable basis in fact or reasonable inference , is

seemingly retaliatory and offensive to this standard of

professional conduct. 1/

6 2 . Petitioner has established that Re spondent violated

the Code of Ethics by making malicious or intentionally false

statements about her colleagues. See Fla. Adm in . Code

R. 6B - 1.006(5)(e). Petitioner need not prove actual malice on

behalf of Respondent in composing the subject e - mail. In the

context of a written or oral statement, malice is presumed from

the defamatory nature of the remark if it tends to injure an

individual's reputation or professional standing (defamation

per se ). Scott v. Bus c h , 907 So. 2d 662 ( Fla. 5 th DCA 2005).

Res pondent's statement describing her previous principal,

Ms. Scott, as an ignorant black women and her reference to other

EHS administrators as inept, incompetent , and ignorant are

injurious to their professional standing and reputation. As a

matter of law, these statements are per se defamatory , and they

are sufficient in and of themselves to evidence malice on behalf

of Respondent at the time she composed the e - mail of January 7,

2005, and October 7, 2004. Although Respondent did not intend

to publish the e - mail to anyone other than her brother , it does

not excuse her misconduct. The Code of Ethics does not

distinguish between a malicious statement purposely made in

private to her brother from those that are negligently disclosed

to another educator.

6 3 . Petitioner has established that Respondent violated

the Code of Ethics by making a false statement about a

colleague. See Fla. Admin. Code R. 6B - 1.006(5)(e). Petitioner

need not prove actual intent on behalf of Respondent for

evidence of a state of mind is rarely subject to direct proof.

Baker v. State , 639 So. 2d 103, 104 (Fla. 5th DCA 1994) ("Intent

is an operation of the mind and is not subject to direct proof,

however, intent can be proven by circumstantial evidence.")

Intent may be inferred from R espondent's actions. See G . K . D . v.

State , 391 So. 2d 327, 328 - 329 (Fla. 1st DCA 1980) ("Appellant

testified that he did not intend to break the window, but the

record indicates that he did willfully kick the window, and he

may be presumed to have intended the probable consequences of

his actions.")

6 4 . Petitioner has established that Respondent did

deliberately compose an e - mail referring to persons of color as

inept, incompetent, and ignorant and , then , did deliberately

either sent or printed it to WPHS. The record also establishes

that this statement and the statement regarding the lesbian

orientation of a co - worker were either false or made by

Respondent without any knowledge of their truthfulness.

Petitioner has carried its burden of proof, establish ing that

Respondent did intentionally make one or more false statements

concerning her colleagues.

6 5 . Government employees, such as Respondent, do not enjoy

an absolute right to freedom of speech. The e - mail s at issue

are not protected speech under the First Amendment of the United

States Constitution. Respondent's comments are constitutionally

protected only if they satisfy both elements of the test set

forth in Pickering v. Board of Education of Township High School

District 205 , 391 U.S. 563 (1968), and refined in Connick v.

Myers , 461 U.S. 138 (1983) ( In the "Pickering - Connick Test , "

1) as a threshold matter, the speech must be "fairly

characterized as constituting speech on a matter of public

concern," Connick , 461 U.S. at 146 ; and 2) her First Amen dment

interest in commenting on matters of public concern must

outweigh the government's interest, "as an employer in promoting

the efficiency of the public services it performs through its

employees." Connick , 461 U.S. at 142.

6 6 . Respondent's e - mail s f ail to satisfy either prong of

the "Pickering - Connick Test , " insofar as the statements therein

contained matters of personal, not public, concern. Any First

Amendment interest Respondent may have had in transmitting the

e - mail s is outweighed by Petitioner 's interest in protecting

against civil liability and maintaining an environment free of

harassing or discriminatory conduct.

6 7 . However, based on Respondent's professional work

record, termination would be an unreasonably harsh outcome.

Some lesser pun ishment would be more appropriate.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Orange County School Board,

enter a final order as follows: 1) Find Respondent, Beatrice

Yazbeck , guil ty of violating Management Directive A - 9, Florida

Administrative Code Rule 6B - 1.006(5)(d) and (e); and

2) terminating the Professional Services Contract of Respondent .

It is further

RECOMMENDED that Respondent be return ed to annual contract

status and t hat she be suspen ded , without pay, for a period of

two months .

DONE AND ENT ERED this 14th day of September , 2005 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrat ive Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of Septe mber , 2005 .

ENDNOTE

1/ Florida Administrative Code Rule 6B - 1.006(5)(o) provides

that an educator " [s] hall seek no reprisal against any

individual who has reported any allegation of a violation of the

Florida School Code or State Board of Education Rule s as defined

in Subs ection 231.28(1), Florida Statutes. "

COPIES FURNISHED :

Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802 - 0271

Donald D. Hockman, Esquire

Hockman, Hockman & Hoc kman

2670 West Fairbanks Avenue

Winter Park, Florida 32789

Honorable John L. Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Ronald Blocker, Superintendent

Or ange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802 - 0271

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 ex ceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.