09-006216TTS Manatee County School Board vs. Melissa Graves Status: Closed Recommended Order on Monday, April 26, 2010.

Summary: Recommend suspension for three days without pay for Respondent, who is guilty of gross subordination for not following principal's repeated requests to prepare her class for summer cleaning.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-6216

)

MELISSA GRAVES, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Eleanor M. Hunter of the Division of

Administrative Hearings conducted the final hearing by video

teleconference at sites in Sarasota and Tallahassee, Florida, on

February 10, 2010.

APPEARANCES

For Petitioner: Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

Post Office Box 639

Tampa, Florida 33602

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to suspend

Respondent from her employment as a teacher for three days without

pay.

PRELIMINARY STATEMENT

In an Administrative Complaint d ated October 23, 2009, the

Superintendent of Schools for Manatee County notified Respondent of

his recommendation that the School Board suspend her without pay for

3 days for violating school boar d policies. In response, Counsel

for Respondent filed a Request for Evidentiary Hearing dated

October 26, 2009. On November 1 2, 2009, the documents were

forwarded to the Division of Administrative Hearings for the

assignment of an Administrative Law Judg e to conduct the hearing.

Initially assigned to Judge Carolyn S. Holifield, the case was

transferred to the undersigned to conduct the hearing. The final

hearing was held, as pre viously scheduled, on February 10, 2010.

At the hearing, Petitioner presented the testimony of Katherine

Hayes, Joy Bauknight, and Debra Horne. Petitioner's Exhibits 1, 1A,

1C, 1D, 1F, 1G, 1H, 2, 5, 7, 8, and 10 were received in evidence.

In addition to her own t estimony, Respondent presented the

testimony of Michelle Laurent, M allorie Ray, Lynn Kessler, and

Katherine Hayes. Respondent's Exhibits 1, 2, 4, 7, 11, and 14 were

received in evidence. The two-volume Transcript was received at the

Division of Administrative Hearings on March 15, 2010. Proposed

Recommended Orders were timely filed on April 12 and 13, 2010.

FINDINGS OF FACT

1. Petitioner, the School Board of Manatee County, Florida,

("Petitioner" or "School Board") is r e s p o n s i b l e f o r p r o v i d i n g

public education in Ma natee County, Florida.

2. Melissa Grav es has been employed wi th the School District

of Manatee County ("Dist rict") since August 8, 2000.

3. During the 2008-2009 sch ool year, Ms. G r a v e s w a s a

kindergarten teacher at Gullett El ementary School (" Gullett"). The

last day for students that year was June 4, 2009, and the last day

for teachers was June 5, 2009.

4. Katherine Haye s was the principal at Gullett. At the end

of the school year, Ms. Hayes required all teachers to c o m p l e t e a n

"End of Year Checklis t" ("checklist") and a "Room Prep Ch eck List for

Summer Cleaning" ("room prep list").

5. On May 27, 2009, Ms. Hayes emailed t he checklist to all

teachers. The list includes such tasks as: taking textbook

inventories, returning media center material s, completing end of

year report cards, making a final check of cumulative folders,

stripping hallway bulletin boards, and c ompleting a room prep list.

The checklist was to have been checked off by the responsible

person, for example, Ms. Hayes when she received the report cards,

and the head custodian when tasks on the room prep list were

completed. The deadline was J u n e 5 , 2 0 0 9 .

6. On June 1, 20 09, Ms. Hayes se nt a second email to all

teachers with th e room prep list attach ed to give specific

i n s t r u c t i o n s o n h o w t o p r e p a r e c l a s s r o o m s f o r summer cleaning.

7. In May 2009, Ms. Hay es informed Ms. Graves that she was

being reassigned from kindergarten to second grade. Ms. Graves was

unhappy about the reassignment and, near the end of the month, the

teacher's union filed four grievances ag ainst Ms. Hayes on behalf of

Ms. Graves. The grievances were dismissed by the Superintendent.

Ms. Graves' allegation that her reassignment was in retaliation for

the filing of the grievances is not supported by the testimony

regarding the dates of the two events.

8. On June 3, 2009, Ms. Hayes sent an email to teachers

confirming that thirteen teachers, inclu ding Ms. Graves, would be

assigned to new grades and, ther efore, moving to different

classrooms for t he 2009-2010 school year. She requested that they

coordinate their efforts with teachers who were moving in/out, and

told them to contact the head custod ian to s c h e d u l e a s s i s t a n c e . O n

June 5, 2009, Ms. Ha yes sent another remi nder for te achers to

c o m p l e t e t h e c h e c k l i s t a n d r e t u r n i t t o h e r before l e aving that day

for the summer.

9. At the end of the day on June 5, 2009, Ms. Graves and one

other teacher, Kim McAfee, who h ad additional duties checking off

teachers' technology checklists, had not completed their own

checklists and room prep lists. Both teachers were to return and

complete the tasks on January 8, 2009. Ms. McAfee did, but

Ms. Graves did not.

10. Ms. Graves testified that, rather than prepare her room on

June 5, 2009, she chose to work with Ms. McAfee on an I-Movie

project, an end of the year gift she gave to her students' parents

that apparently had some defects in the sound. She was also

transferring files from one laptop to another. Ms. Graves'

technology projects took longer than expected because Ms. McAfee,

who was assisting her, was being interrupted by teachers who needed

her to verify that they had comp leted the technology portions of

their checklist.

11. Ms. Graves noted that, in an email on May 20, 2009,

Ms. Hayes instructed teachers not t o " d i s m a n t l e " t h e i r c l a s s r o o m s

to avoid disrupti ng students, but to begi n separating personal

items from school ma terials, so that th ey could take their

personal items home. Ms. Graves never "d ismantled" her room

before the last day; nevertheless, Ms . Graves knew that she did

not need to wait unti l the last day to begi n the task. She had

been able to prepare her room for the summer in one day for the

previous nine years.

12. Ms. Graves also testified that three teacher's aides

who came to assist her on the morning of June 5th made a bigger

mess and mixed her personal items with school property while she

was out of the room. She gave the aides essentially no

instructions except to take everything off the walls and pack

them. She then returned to her project in Ms. McAfee's room.

13. On June 8, 2009, Ms. Graves, who was teaching summer

school classes at another elementary school, assured Ms. Hayes

that she would get the room prep task done during the three

weeks of summer school by returning each day aft er summer classes

ended, at 1:15 p.m., a nd working until Gulle tt closed at 3 : 1 5 p.m.

Ms. Graves came some b ut not every day d uring the three weeks.

14. Ms. Hayes re turned from a vacation on June 16 or 17, 2009,

and the head custodian informed her that all classrooms were

prepared for summer cleaning except Ms. Graves'. Ms. Graves

blamed her failure to complete the tasks on rainy weather, her

parents' having turned in their rented truck, and car troubles.

15. On J uly 30, 2009, M s. Hayes sent Ms . Graves a letter

telling her that the classroom had to be prepared for summer

cleaning n o l a t e r t h a n A u g ust 6, 2009.

16. Ms. Graves testified that she did not receive the letter

until August 5, 2009, and that day she sent Ms. Hayes an email

stating that she had just received the letter, but was unable to

comply with the deadline because she would be out -of-town until the

following week.

17. On August 11, 2009, Ms. Hayes and two cu stodians packed

and cleared Ms. Graves ' classroom, a nd place d her personal items in

storage in an empty classroom. They also cleared various items,

including toys and books from desks, tables, and the floor, and

emptied shelves and unplugged electronic devices.

18. On August 19, 20 09, Ms. Hayes sent Ms. Graves a letter

i n s t r u c t i n g h e r t o r e m o v e h e r personal items from storage by the

end of the day on August 21 , 2009, a nd she did.

ULTIMATE FINDING OF FACT

19. Ms. Graves repeatedly failed to follow the directive

of her supervisor, Ms. Hayes. The School Board established that

Ms. Graves has no reasonable explanation for her failure to

prepare her classroom for summer cleaning, and that Ms. Graves'

conduct constituted gross insubordination.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceedings, pursuant to Section 120.569 and Subsections

120.57(1) and 1012.33(6)(a), Florida Statutes (2007).

21. Petitioner is an "agency" under the Florida

Administrative Procedure Act, Chapter 120, Florida Statutes

(APA). §§ 120.52(1)(b) and (6), Fla. Stat. e.g. Sublett v.

District School Board of Sumter County , 617 So. 2d 374, 377

(Fla. 5th DCA 1993).

22. Respondent is a teacher, as defined by Subsection

1012.33(1)(a), Florida Statutes, and is employed by Petitioner

under an annual contract, for the school year 2008-2009.

23. Section 1012.27(5), Florida Statutes (2009), gives the

Superintendent the author ity to recommend to that the School Board

susp end a n employee; and S ection 1012.22(l)(f) , Florida Statutes

(2009), gives the School Board t h e a u t h o r i t y t o s u s p e n d s c h o o l

personnel without pay and benefits.

24. Petitioner has adopted a Policy and Procedures Manual,

which includes the distr ict work rules. Section 6.11(1) of the

Policies and Procedures Manual p rovides that:

Any employee of the School Board may be

temporarily suspended, with or without pay,

or permanently terminate d from employment,

for just cause i nclu din g , bu t n o t li mit e d to ,

immorality, miscondu ct in office,

incompetence, g r oss insubordination, willful

neglect of duty, drunkenness, or conviction of

any crime involvin g moral turpitud e, violation

of the Policies an d Procedures Man ual o f t h e

School District of Ma natee County , violation

of any applicable Florida S t a t u t e , v i o l a t i o n

of the Code of Ethics and the Principles of

Professional Conduct of the Educatio n Profession

in Florida.

25. The burden of proof in this case is on the Petitioner

to establish by a preponderance of evidence that Respondent has

committed the violations alleged in the Administrative

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

(Fla. 2d DCA 1996); Dile o v. School Boar d of Dade County. 569 So. 2d

883 (Fla. 3rd DC A 1990). A "prepo nderance of the evid ence" is the

"greater weight of the evidence," or evidence that more likely than

not tends to pr ove a c e r tai n pr op osi ti on . Gross v. Lyons. 763 So. 2d

276 (Fla. 2000).

2 6 . Florida Ad ministrative Code Rule 6B-4.009(4) defines gross

insubordination or willful neglect of duties as a "constant or

continuing intenti onal refusal to obey a direct order, reasonable in

nature, and given by an d with proper authority."

27. In this case, a preponderance of the e vidence showed that

Ms. Graves willfully fa iled to comply with direct orders from her

supervisor and that her conduct constituted gross insubor dination.

28. Gross insubordination is ju st cause for the suspension

of Respondent for three days w i t h o u t p a y p u r s u a n t t o C h a p t e r 6 . 1 1

of the Policies and Pr ocedures Manual of the School Board.

CONCLUSION

Based on the foregoing proposed Findings of Fact and

Conclusions of Law, it is Recommended that the School Board of

Manatee County enter a final order suspending Respondent,

Melissa Graves, from e m p l o y m e n t f o r t h r e e d a y s w i t h o u t p a y .

DONE AND ENTERED this 26th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 26th of April, 2010.

COPIES FURNISHED :

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

Post Office Box 639

Tampa, Florida 33602

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue West

Bradenton, Florida 34206-9069

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.