09-001562TTS Washington County School Board vs. Stephanie Lee Status: Closed Recommended Order on Thursday, July 16, 2009.

Summary: Petitioner had cause to discipline Respondent by terminating her employment for hitting a supervised employee with a cardboard tube.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WASHINGTON COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-1562

)

STEPHANIE LEE, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on May 18 and

19, 2009, in Chipley, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: James J. Dean, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 1876

Tallahassee, Florida 32308

For Respondent: Dawn Pompey Whitehurst, Esquire

Knowles & Randolph, P.A.

3065 Highland Oaks Terrace

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues are whether Petitioner has cause to discipline

Respondent, and if so, whether Respondent's employment should be

terminated.

PRELIMINARY STATEMENT

In a letter dated February 13, 2009, Sandra M. Cook, Ph.D.,

Superintendent of Washington County School District (the

"District") advised Respondent Stephanie Lee (Respondent) that

she was suspended with pay. According to the letter, Dr. Cook

suspended Respondent based on allegations that Respondent struck

a supervised employee with a cardboard tube and threw the

employee's shoes out the door. The letter also stated that

Dr. Cook intended to recommend the termination of Respondent's

employment at the next regularly scheduled meeting of Petitioner

Washington County School Board (Petitioner) on March 9, 2009.

In a letter dated February 19, 2009, Respondent requested

an administrative hearing.

In a letter dated March 18, 2009, Dr. Cook advised

Respondent that Petitioner would hold a special meeting on

March 19, 2009. The purpose of the meeting was to determine

whether Petitioner would hear Respondent's case or refer the

matter to the Division of Administrative Hearings.

The March 18, 2009, letter also advised Respondent of

additional charges against her. The charges included

Respondent's alleged comments and statements to employees under

her supervision that created an intimidating and abusive work

environment.

On March 25, 2009, Petitioner referred the case to the

Division of Administrative Hearings. The referral included a

Notice of Charges, alleging the following specific violations of

Petitioner's Rule 6.37: (a) Inappropriate method of discipline;

(b) Incompetence; (c) Using position for personal gain;

(d) Harassment or discrimination which interferes with an

individual's performance of professional or work

responsibilities or which creates a hostile, intimidating,

abusive, offensive or oppressive environment; (e) Inappropriate

interaction with colleagues including, but not limited to

physical or verbal altercation; (f) Misconduct or misconduct in

office; (g) Unauthorized use of School Board property; and

(h) Failure to comply with School Board policy, state law or

appropriate contractual agreement.

On March 31, 2009, the parties filed a Joint Request for

Extension of Time to Respond to Initial Order. An Order

Granting Extension of Time was issued that same day.

The parties filed a Joint Response to Initial Order on

April 7, 2009. The undersigned issued a Notice of Hearing on

April 9, 2009. Pursuant to the agreement of the parties, the

final hearing was scheduled for May 18 and 19, 2009.

During the hearing, Petitioner presented the testimony of

nine witnesses. Petitioner offered the following exhibits that

were accepted as evidence: P1, P3-P20, and P25-P29.

Respondent testified on her own behalf and presented the

testimony of two additional witnesses. Respondent offered three

exhibits, R1-R3, that were accepted as evidence.

The Transcript was filed on June 10, 2009. Petitioner

filed an Unopposed Request for Extension of Time to File

Proposed Recommended Orders on June 16, 2009. The undersigned

issued an Order Granting Extension of Time that same day.

The parties filed Proposed Recommended Orders on June 29,

2009.

FINDINGS OF FACT

1. At all times material, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in Washington County, Florida.

2. Respondent began working as a food service worker for

Petitioner in 1998. In February 2009, Petitioner employed

Respondent as Manager of Food Services at the Chipley

High/Roulhac Middle School Cafeteria (the “Cafeteria”).

Respondent received good performance evaluations throughout her

tenure. Petitioner never had cause to discipline Respondent.

3. In her capacity as manager, Respondent supervised

several food service workers at the Cafeteria. These included,

among others: Becky Brock, cashier and cook; Florence Harmon,

cook; Louise Pettis, cook; and Evelyn Harmon, cook. Respondent

was the only manager at the Cafeteria.

4. Petitioner has a contract with an outside vender,

Chartwell Food Service Management Company (Chartwell), to

provide management oversight for food service operations at

Petitioner's school cafeterias. In February of 2009,

Chartwell’s on-site manager for the District was Jim Boylen.

5. Every five years, the Florida Department of Education

(DOE) conducts a Coordinated Review Effort (CRE) Audit of

selected school cafeterias.

6. When Bill Lee became Petitioner's Director of Food

Services in October 2008, he learned that there would be a CRE

Audit in February of 2009. Mr. Lee knew that DOE would audit

two schools in the District. He also knew DOE would not

disclose the identity of the schools until February 2, 2009.

7. The CRE Audit is a very important audit. It is

designed to assure the integrity of the federally-funded child

nutrition programs operated by school districts. The CRE Audit

can affect the District’s entire national school lunch

operations.

8. As the February 2, 2009, date approached, Mr. Boylen

and Mr. Lee were eager to learn which two schools DOE intended

to audit. It was Mr. Boylen’s responsibility to make sure that

the specific schools were ready for the audit. Thus, Mr. Boylen

asked Mr. Lee a couple of times on February 2, 2009, whether DOE

had identified the schools.

9. Mr. Lee received an email on February 2, 2009, at

4:11 p.m., that the Cafeteria was one of the two school

cafeterias selected for the CRE Audit. Mr. Lee notified

Mr. Boylen that same day of the Cafeteria's selection.

10. Earlier on February 2, 2009, Mr. Boylen met with

Respondent and her staff to discuss their production sheets.

Mr. Boylen identified some deficiencies with the quality of the

forms that the staff used.

11. While Mr. Boylen was addressing Ms. Brock, Respondent

looked directly at Ms. Brock and made a gesture with her hand

while pointing at her head. Ms. Brock understood Respondent’s

hand gesture to mean that Ms. Brock was stupid. Respondent's

hand gesture embarrassed Ms. Brock.

12. Later on February 2, 2009, Respondent asked Ms. Brock

to give her a ride home from work. When Ms. Brock refused

because her husband was sick, Respondent told Ms. Brock to "go

home to [her] cry-baby husband.”

13. On February 3, 2009, Mr. Boylen notified Respondent

that DOE had selected the Cafeteria for the CRE Audit.

Respondent was not happy about the selection because DOE had

selected the Cafeteria for a previous audit. Respondent felt it

was unfair that her lunchroom would be subjected to another

audit for the 2008/2009 school term.

14. The CRE Audit is stressful for cafeteria managers

because the audit includes a live observation component. During

the observation, the auditors observe cafeteria cashiers to

determine whether they are properly following collection

procedures. The collection process is the least controlled

component of the audit. If a cashier makes a mistake during the

live-observation, the mistake cannot be fixed.

15. During the afternoon of February 3, 2009, Respondent's

staff was cleaning the kitchen in preparation for the audit.

When Respondent moved a rolling cart, she saw a pair of

Ms. Brock’s shoes under the cart, along with a hard, heavy-duty

cardboard tube.

16. The cardboard tube was from an industrial-size roll of

Saran Wrap. The cardboard edge of the tube is about a quarter

of-an-inch thick, and the opening of the tube is two and one-

half inches in diameter. The cardboard tube itself is about 18

inches long.

17. Respondent grabbed the cardboard tube and approached

Ms. Brock, who was putting away food. Ms. Brock did not see

Respondent approach her, but she heard Respondent talking about

a big inspection coming up. Ms. Brock heard Respondent say that

“there needed to be some housecleaning starting with

[Ms. Brock].”

18. Respondent had the cardboard tube in her right hand.

Without any warning, Respondent stopped behind Ms. Brock, drew

back, and hit her hard on her hip/buttocks area with the

cardboard tube. Ms. Brock had not said anything to provoke

Respondent.

19. When Respondent hit Ms. Brock, there was a loud pop.

At first Ms. Brock was shocked, asking her co-workers what she

had done. Then with a red face and tears coming down her face,

Ms. Brock told Ms. Pettis how much it hurt. Ms. Brock’s

hip/buttock area immediately began to burn, turn red, and become

a whelp with the skin raised up from swelling.

20. After Respondent hit Ms. Brock with the cardboard

tube, Respondent told Ms. Brock that Respondent was going to

throw Ms. Brock’s shoes in the garbage. Ms. Brock responded to

door and threw Ms. Brock’s shoes out the door of the Cafeteria.

21. Ms. Brock was very embarrassed to have been hit in

front of her co-workers. Although shy and very embarrassed,

Ms. Brock showed the mark to Ms. Florence Harmon, Ms. Pettis,

and Ms. Evelyn Harmon. Ms. Pettis described a red streak that

was as wide as the tube. Ms. Florence Harmon described a red

mark and a good-sized whelp. Ms. Evelyn Harmon also saw the red

mark and whelp.

22. Ms. Brock tried to show the red mark and whelp to

Respondent. However, Respondent avoided Ms. Brock and would not

look at the injury.

23. That evening, Ms. Brock looked in the mirror and saw

the bruise. The following day, a bluish-green bruise was still

on her hip.

24. These were not the only times that Respondent called

Ms. Brock by demeaning and derogatory names and otherwise

insulted her in the work environment. Respondent had a history

of mistreating Ms. Brock, including calling Ms. Brock demeaning

“whimp.”

25. Ms. Brock always tried to be friends with Respondent

and wanted Respondent to like her. Ms. Brock usually sat next

to Respondent during lunch. Ms. Brock and Respondent would

laugh and talk with the group. On one occasion after lunch,

Ms. Brock and Respondent watched a DVD movie on Respondent's

portable DVD player. On another occasion, Ms. Brock and

Respondent met each other at Goodwill to shop. Nevertheless,

Ms. Brock was fearful of Respondent.

26. After the incident on February 3, 2009, Respondent put

the cardboard tube in her office. Later that day, Respondent

called Ms. Brock into her office and asked Ms. Brock why she

told Ms. Florence Harmon about the incident. Respondent then

threatened Ms. Brock, telling her that “if [she] did not behave

that [Respondent] would give her some more of [the cardboard

tube].”

27. The following day, Respondent threatened Ms. Brock

again by asking Ms. Brock if she “wanted some more of what

[Respondent] had given [her] yesterday.” Ms. Brock saw the

cardboard tube in Respondent’s office on both of these days.

28. The day after the incident, Respondent also threatened

to hit Ms. Florence Harmon with the cardboard tube. Respondent

reached down under her desk, pulled out the cardboard tube, and

told Ms. Harmon that she “was next.” Ms. Harmon believed that

Respondent was not joking or playing around when she made the

threat.

29. Initially, Ms. Brock was afraid to report the

incident. Ms. Brock had witnessed Respondent retaliate against

other employees who had made complaints about Respondent.

Ms. Brock feared that Respondent would retaliate against her if

Ms. Brock reported the incident.

30. As time passed, Respondent continued to mistreat

Ms. Brock by deliberately ignoring her and avoiding her.

Respondent wouldn’t talk to Ms. Brock. Ms. Brock eventually

decided to report the incident.

31. On February 9, 2009, Ms. Brock called Dr. Cook to

report the incident. Dr. Cook told Ms. Brock that Ms. Brock

would need to put her complaint in writing. Ms. Brock replied

that she was afraid to go to the District's office to deliver

her written complaint, because she feared that Respondent might

find out and retaliate against her. Therefore, Dr. Cook told

Ms. Brock that she could mail her complaint to Dr. Cook’s home

address.

32. Ms. Brock typed a letter to Dr. Cook, outlining the

facts and circumstances. Ms. Brock mailed the letter on

February 10, 2009.

33. When Dr. Cook received Ms. Brock’s letter on

February 11, 2009, she asked Deputy Superintendent Jayne Peel

and Mr. Lee to investigate the matter. Dr. Cook believed that

having two members of the District's staff listening to the

employees and taking notes would ensure that the facts were

accurately recorded.

34. Dr. Cook believed the matter was very serious, and she

wanted it investigated the same day. Thus, Ms. Peel and Mr. Lee

immediately went to the Cafeteria.

35. Mr. Lee and Ms. Peel first met with Respondent. They

explained why they were there, and they asked Respondent to give

her version of the incident. Respondent wrote out a statement

in which she admitted that she “popped” Ms. Brock, but claimed

she was just playing around and didn’t mean to hurt her.

Respondent wrote in her statement that Ms. Brock was “acting

like a baby” when the incident occurred. Respondent did not

express any remorse over hitting Ms. Brock with the cardboard

tube.

36. Ms. Peel and Mr. Lee then interviewed four other food

service employees: Ms. Brock, Ms. Florence Harmon, Ms. Pettis,

and Gladys Wagner. Among other things, these employees

described how Respondent hit Ms. Brock with the cardboard tube

and how the injury produced a red mark and whelp. They also

related that Respondent’s supervision of the Cafeteria created a

hostile work environment.

37. Ms. Peel returned to the District's office on

February 11, 2009. She reported the results of the

investigation to Dr. Cook.

38. On February 13, 2009, Ms. Brock notified Dr. Cook that

the cardboard tube was at the Cafeteria, if Dr. Cook needed it.

Dr. Cook obtained the cardboard tube and placed it in a secure

location.

39. The atmosphere in the Cafeteria changed on a day to

day basis, depending on Respondent's mood. When Respondent was

in a good mood, the work environment was friendly, even playful,

as the staff joked around. On those days, the staff might pop

each other with a dish cloth or brush at each other's feet with

brooms.

40. When Respondent was not in a good mood, she was likely

to call the staff, in addition to Ms. Brock, derogatory names.

For instance, Respondent referred to another employee,

knees and walked with a limp.

41. Respondent also told Ms. Florence Harmon, on more than

one occasion during the 2008/2009 school year, that Ms. Harmon

died five years ago.

42. Respondent would refer to herself at work as the “H-N-

I-C,” i.e., Head N_____ In Charge.

43. Both before and after the incident, Respondent would

reprimand employees in front of their co-workers, teachers and

students, including shouting at the employees. When employees

requested time off or took time off, Respondent would ignore

them and not speak to them. On one occasion, Respondent

threatened to reassign Ms. Brock as punishment if Ms. Brock took

time off.

44. Respondent sometimes used inappropriate punitive

measures in response to employee performance issues. For

instance, Respondent threatened to take Ms. Brock’s stool away

and make her stand when working as a cashier as punishment for

accidentally missing a charge for a slice of pizza. Respondent

did take Ms. Brock’s stool away on at least one occasion.

45. Additionally, Respondent used the Cafeteria to cater a

private function, for which she earned a profit. Petitioner did

not request advance permission to use the facility for personal

reasons in violation of Petitioner's policy. Respondent's

testimony that she was not aware of Petitioner's policy

regarding the use of school property for personal reasons, after

seven years as Food Service Manager, is not credible.

46. Dr. Cook carefully considered the facts learned by

Ms. Peel and Mr. Lee during their investigation. Even though

the CRE Audit was scheduled for the following week, Dr. Cook

decided to suspend Respondent with pay effective, February 12,

2009.

47. Ms. Peel and Mr. Boylen met with Respondent that

afternoon and advised Respondent of Dr. Cook’s decision.

Ms. Peel also advised Respondent that she would have an

opportunity for a pre-termination conference with Dr. Cook and

that Respondent had the right to request a formal hearing on

Dr. Cook’s recommendation.

48. Petitioner subsequently gave Respondent written notice

by letters dated February 13, 2009, regarding the following:

(a) Dr. Cook’s recommendation, (b) the date of Respondent's pre-

termination conference with Dr. Cook; (c) the date of

Petitioner's meeting on March 9, 2009; and (d) Petitioner’s

right to request a formal hearing.

49. Superintendent Cook had a pre-termination conference

with Respondent on February 19, 2009. At that time, Respondent

gave her version of the events directly to Dr. Cook.

50. On February 23, 2009, Respondent provided Petitioner

with a written request for a hearing.

51. In a letter dated March 18, 2009, Petitioner notified

Respondent that Petitioner would meet on March 19, 2009, to

decide whether it would conduct the hearing or refer the case to

the Division of Administrative Hearings. The March 18, 2009,

letter also advised Respondent that Petitioner would rely on

additional information relating to inappropriate comments that

Respondent allegedly made to employees to support Petitioner's

decision to suspend Respondent without pay and terminate her

employment.

CONCLUSIONS OF LAW

52. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2009).

53. Petitioner has the burden of proving that it has cause

to discipline Respondent and that Respondent's employment should

be terminated. See McNeill v. Pinellas County School Board , 678

So. 2d 476, 477 (Fla. 2nd DCA 1996); Sublett v. Sumter County

School Board , 644 So. 2d 1178, 1179 (Fla. 5th DCA 1995).

54. Section 1001.32(2), Florida Statutes (2008), gives

district school boards authority to "operate, control, and

supervise all free public schools in their respective districts

. . . except as expressly prohibited by the State Constitution

or general law."

55. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See

56. District school boards have authority to "adopt rules

governing personnel matters." See § 1012.23(1), Fla. Stat.

(2008). 1/ Petitioner's Rule No. 6.35 sets forth grievance

procedures for personnel. That rule does not place restrictions

on Petitioner's ability to discipline employees for misconduct.

57. Complaints against employees must meet the

requirements and follow the procedure set forth in Petitioner's

Rule No. 6.36. Dr. Cook followed that procedure in this case.

58. Petitioner's Rule No. 6.37(7), entitled Suspension and

Dismissal, states as follows in relevant part:

(7) Dismissal during the term of a

contract of a staff member shall be for

cause. Such dismissal shall include:

* * *

(d) For an employee holding an annual

contract or its equivalent:

(i) Misconduct in office;

(ii) Incompetency;

* * *

(vi) Other actions which substantially

impair the effectiveness of the employee.

(e) Other actions which substantially

impair the effectiveness of any employee

include but are not limited to the

following:

* * *

(viii) . . . inappropriate method of

discipline;

* * *

(xi) Using position for personal gain;

* * *

(xiii) Harassment or discrimination

which interferes with an individual's

performance of professional or work

responsibilities or with the orderly

processes of education or which creates a

hostile, intimidating, abusive, offensive or

oppressive environment;

* * *

(xvi) Inappropriate interactions with

colleagues including, but not limited to

physical or verbal altercation;

* * *

(xxii) Misconduct or misconduct in

office;

(xxiii) Unauthorized use . . . of

School Board property.

(xxiv) Failure to comply with School

board policy, state law, or appropriate

contractual agreement;

59. Respondent's action in striking Ms. Brock so hard as

to cause her skin to whelp constitutes misconduct in office.

See Forehand v. School Board of Gulf County , 600 So. 2d 1187,

1191 (Fla. 1st DCA 1992) (Teacher's single act of striking a

student with a candle "constitutes serious misconduct that

impaired the teacher's effectiveness in the school system."

Regardless of whether Respondent intended to cause bodily harm,

she exhibited extremely poor judgment and incompetence when she

hit Ms. Brock.

60. The preponderance of the evidence establishes that

Respondent's behavior was so egregious and inexcusable as to

substantially impair her effectiveness as Food Service Manager

at the Cafeteria. Respondent's single act of battery against

Ms. Brock is sufficient to conclude that Petitioner has just

cause to discipline Respondent by terminating her employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order terminating

Respondent's employment.

DONE AND ENTERED this 16th day of July, 2009, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of July, 2009.

ENDNOTE

1/ The record does not contain a copy of an applicable

collective bargaining agreement, if one exists.

COPIES FURNISHED :

James J. Dean, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 1876

Tallahassee, Florida 32308

Dawn Pompey Whitehurst, Esquire

Knowles & Randolph, P.A.

3065 Highland Oaks Terrace

Tallahassee, Florida 32301

Dr. Sandra Cook

School Board Superintendent

Washington County District School Board

652 Third Street

Chipley, Florida 32428

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

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 should be filed with the agency that

will issue the Final Order in this case.