12-000947TTS Orange County School Board vs. Liudmila Parker Status: Closed Recommended Order on Tuesday, October 23, 2012.

Summary: School Board proved teacher's repeated combative, disrespectful, discourteous, and bullying statements in emails and in person were just cause for termination. Board also proved gross insubordination supporting discharge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0947TTS

)

LIUDMILA PARKER , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings, heard this case, as noticed,

on August 13, 2012, in Orlando, Florida.

APPEARANCES

For Petitioner: John C. Palmerini, Esquire

Orange County School Board

445 West Amelia S treet

Orlando, Florida 32801 - 1128

For Respondent: Joseph Egan, Jr., Esquire

Egan, Lev and Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802 - 2231

STATEMENT OF THE ISSUE S

A. Did Respondent, Liudmila Parker, commit miscond uct in

office, willful neglect of duty and gross insubordination in

violation of section 1012.33(1)(a), Florida Statutes (2011 ), 1/ as

well as engage in conduct unbecoming a public employee ?

B. Did Ms. Parker violate the Principles of Professional

Conduct for the Education Profession and Orange County School

Board Management Directive B - 12?

C. What discipline, if any, should Petitioner, Orange

County School Board (Board), impose on Ms. Parker?

PRELIMINARY STATEMENT

The Board employs Ms. Parker as a teacher . On March 6,

2012, the Board issued an Administrative Complaint seeking to

terminate Ms. Parker ' s employment. Ms. Parker requested an

administrative hearing to challenge her termination. The Board

referred the matter to the Florida Division of Administ rative

Hearings to conduct the requested hearing. The undersigned

noticed the matter for hearing to begin May 15, 2012.

On March 28, 2012, the Board moved to amend the

A dministrative C omplaint. An O rder of April 12, 2012, granted

the motion. Ms. Parke r sought reconsideration of that ruling.

Ms. Parker ' s Motion for Reconsideration was denied May 8, 2012.

On May 1, 2012, the Board moved for leave to file a second

amended complaint. That motion was denied on May 11, 2012.

During a pre - hearing conferenc e conducted on May 7, 2012,

the parties asked to continue the hearing. The request was

granted, and the hearing was rescheduled to June 26, 2012.

On June 20, 2012, the parties filed a Joint Motion for

Continuance. The motion was denied on June 21, 2012. On

June 2 5, 2012, the undersigned conducted an emergency telephone

hearing at the parties ' request. They sought a continuance of

the final hearing due to the imminent landfall of Tropical Storm

Debby. The final hearing was continued until August 13, 20 12.

The final hearing was conducted as scheduled.

At the start of the final hearing, Ms. Parker renewed the

motion for reconsideration of the O rder allowing the amended

complaint. The undersigned took the motion under advisement.

After consideration o f the argument of the parties at the hearing

and in their Proposed Recommended Orders, the renewed motion for

reconsideration is d enied.

The Board offered the testimony of Leigh Ann Blackmore,

Brandi Boone, Bridget Bresk, Alisa Dorsett, Suzanne Knight,

Car ianne Reggio, Rafael Sanchez, and Eugene Trochinski. Board

Exhibits 1 through 11 and 13 through 17 were admitted into

evidence.

Ms. Parker testified on her own behalf. The testimony of

Ms. Parker ' s witness James Martrille was also accepted.

Ms. Parker's Exhibits 1 through 7 and 11 through 16 we re

admitted.

The parties moved to extend the time for filing proposed

recommended orders. The motion was granted. The parties timely

filed proposed recommended orders.

FINDING S OF FACT

Stipulated Facts Admitt ed by Both Parties 2/

1. The Board employed Ms. Parker as a classroom teacher.

2. Ms. Parker held a Professional Service Contract with the

Board.

3. Ms. Parker received a written reprimand on May 3, 2010 ,

for verbal intimidation of students and inter fering in an

investigation.

4. On November 19, 2010, Ms. Parker received a written

reprimand for embarrassing students.

5. On November 29, 2010, Ms. Parker received a 5 day

suspension without pay for confronting a student regarding a

complaint the stud ent and his parent made about Ms. Parker.

6. From February 9, 2011, through the end of the 2010 - 2011

school year, Ms. Parker was on relief of duty status without pay.

Background Facts

7. Ms. Parker taught ninth - grade English for Speakers of

Other Lang uages (ESOL) at Dr. Phillips High School in Orange

County, Florida, during the 2011 - 2012 school year. Ms. Parker

has been teaching for 34 years. She started teaching in

Lithuania where she taught for 27 years. In Lithuania she also

taught ESOL. Ms. Par ker majored in ESOL and has taught it all

her life.

8. Assistant Principal of Instruction Dr. Suzanne Knight

was Ms. Parker ' s direct supervisor.

9. When Ms. Parker began work at Dr. Phillips, she was

given a copy of the Dr. Phillips High School Facul ty and Staff

Handbook. She also had access to an electronic copy of the

handbook.

10. The handbook included a copy of the Principles of

Professional Conduct of the Education Profession in Florida.

11. The handbook also included a copy of Orange Coun ty

Management Directive B - 12, Code of Civility.

12. Ms. Parker read and understood the handbook.

13. Ms. Parker read and understood the Principles of

Professional Conduct of the Education Profession in Florida.

14. Ms. Parker read and understood the C ode of Civility.

15. The handbook described and emphasized how to use common

sense and professional judgment to avoid complications resulting

from conduct that violates the Code of Ethics. The handbook

included these admonitions:

A. " All co - workers and e mployees of the

district are to be treated with dignity,

respect and courtesy at all times. "

B. " Use common sense and good judgment. Ask

yourself how someone else could perceive

your comments or actions. Ask yourself if

your comments or actions could be taken

out of context and/or misinterpreted. "

C. " Avoid putting yourself in a position

where you have to defend, explain or

justify your behavior or actions. "

December 8, 2011, Email

16. Dr. Phillips High School Principal Eugene Trochinski

observed Ms . Parker ' s classroom teaching on November 17, 2011.

17. Dr. Knight observed Ms. Parker ' s classroom teaching on

December 5, 2011.

18. Mrochinski and Dr. Knight gave Ms. Parker written

comments after observing her performance.

19. On December 8, 2 011, in an email to Mrochinski and

Dr. Knight, sent at 3:52 a.m., Ms. Parker stated that she had

" several questions to ask. " The tone and the text of the email

were confrontational and belligerent. Each of Ms. Parker ' s

" questions " was in bold face fo nt, something Ms. Parker does to

demonstrate her indignation.

20. Some of Ms. Parker ' s supervisors ' observations and her

" questions " follow:

a. Observation -- " Student in back of room

working on Rosetta Stone but not engaged in

daily lesson. "

" Question " " Do you think they should work

with the whole group without understanding

anything? " Do you think it is better for

them??? "

b. Observation -- " How do you celebrate

success in the lesson " There was no evidence

of this between teacher and students during

my observation. "

" Question " : " Do you want me to interrupt the

test and start celebrating success because

you came in for observation??? "

c. Observation -- [Although the specific

observation was not reproduced, it was

plainly about the students not appeari ng to

be engaged and the lesson being difficult to

focus on.]

" Question(s) " -- " My students demonstrated good

behavior and they were listening attentively.

Your comments ' Students did not appear to be

engaged in the lesson ' and ' It was hard to

focus on the lesson due to not understanding

the starting point ' do not make sense at all.

Hard to focus for who? For you??? May be.

My students were focused!!! Once again,

Dr. Knight was in class during Benchmark test

results analysis. Her comments show that sh e

does not like to see that students are

focused and attentive. "

21. Ms. Parker follows her " questions " with: " To sum up, I

evaluate the above - mentioned comments of administrators as one

more evidence of a biased attitude towards me at school; it is

app arent nagging, nothing else. "

22. The email ends with a demand to compare and contrast

the teacher training at Dr. Phillips with teacher training at

Hunter ' s Creek Middle School and Evans High School.

23. The last words of the email are: " Thank you fo r your

time spent on reading this email. I am looking forward to

getting your responses to my questions ASAP. "

24. Ms. Parker ' s explanation for her charges of bias was

only that she was a good teacher and , therefore , Dr. Knight must

be picking on her.

25. Sect ion 1012.34(3)(c) and Article X , Section (B)(2) of

the Contract between the School Board of Orange County and the

Orange County Classroom Teachers Association impose a duty on

Dr. Knight and Mrochinski to evaluate the performance of

teachers u nder their supervision, including Ms. Parker. This

observation and assessment is not " nagging " or " bias. "

26. Ms. Parker ' s December 8, 2011, email about their

observations was discourteous, disrespectful, uncooperative, and

a display of temper. It inter fered with her ability to perform

her duties and the ability of Dr. Knight and Mrochinski to

effectively perform their duties. Ms. Parker ' s email also

demonstrates a refusal to take responsibility for her own actions

and statements.

27. Ms. Parker ' s testimony about a later conversation with

Ms. Knight affirmed the hostility to criticism and suggestions

for improvement recorded in her email. One example is her

lengthy answer, at page 430, line 16 of the T ranscript, to the

question " How long would she [Dr. Knight] come in to your class? "

28. Ms. Parker ' s answer included this statement, with

emphasis supplied:

So -- and then when she said that it doesn ' t

coincide, I asked, Okay, Dr. Knight, for

example you were in my class on December 5 th ,

and you saw - - and she wrote down, she had in

her notes -- that we were going to read and

work with fluency based on the story The

Birds. And she said, yes. I said, Then why

do you say that my lesson plans do not

coincide with what I was teaching? She said,

Hum, I came in at the beginning and then I

don ' t know what you were teaching. I said,

Do you think that I wrote this agenda for the

president or somebody else? I wrote for the

students. I cannot just write the words and

do something else. I don ' t know. It seems

to me there is common sense here. Yeah. So

she was just arguing. And her statements, I

don ' t know.

29. This statement was a display of temper, discourteous,

disrespectful, and uncooperative. It also interfered with

Ms. Parker ' s ability to perform her duties and the ability of

Dr. Knight to perform her duties.

30. Because of the December 8, 2011, email, Dr. Knight h el d

a conference with Ms. Parker on December 9, 2011, about the

email. Dr. Knight explained what was wrong with the email. She

also advi sed Ms. Parker of the importance of being careful when

writing emails because of the risks that a writer may not be as

polite as they would be in a personal conversation and the risk

that emails may be written and sent when emotions are running

high.

31 . Ms. Parker reiterated her claims that all criticisms

were due to bias. Ms. Parker interrupted Dr. Knight and said

" Let ' s have a dialogue not a monologue. "

32. During the meeting of December 8, 2012, Ms. Parker did

not acknowledge any validity to any of the concerns raised. She

did, however, complain about training and lack of support.

33. During this meeting, Ms. Parker communicated in person

as she had in the email. She again demonstrated an inability to

accept criticism and responsibility for her own actions. She was

again discourteous, disrespectful, and uncooperative and

displayed her temper. Ms. Parker ' s behavior interfered with her

ability to perform her duties and the ability of Dr. Knight to

perform her duties.

34. Ms. Parker ' s approach w as the same during her

testimony . She testified that she had a right to tell an

administrator to stop talking and let her speak. Ms. Parker

impatiently described the December 8 meeting as useless.

35. In her words starting at page 556, line 17:

Yes, I can [tell an administrator that she

should stop talking]. Because she was

starting to say again and again, and I have

no time to sit the whole planning period

without any production, without any use,

because my planning period I ' d rather spend

with stude nts. By the way, at that meeting,

I wanted to stand up and leave her office,

because she didn ' t want to listen to me. She

was only talking, talking, talking. For

monologue, she could send me an e - mail. If

it was a dialogue -- meeting is meant for

dialogu e, for exchanging ideas, for talking,

to discussing [sic] things, but she was just

talking and talking. That ' s why I said, Let

us have dialogue, not monologue, because she

was speaking 15 minutes.

36. Later in her testimony , Ms. Parker dismisses

Dr. K night ' s efforts to explain what Ms. Parker had done wrong

and suggest improvements this way: " She brought me there to

discuss things. Instead of discussion, she began to say boring

things, repeating. "

3 7 . Ms. Parker ' s testimony reflected the confrontati onal

and belligerent approach manifested in her emails and

conversations during her employment. She repeatedly expressed

her view of her superiority as a teacher and her view that all

criticisms were unfounded and unfair. She never acknowledged

even a po ssibility that any of her actions or communications were

improper.

" Elements of Literature " Communications

3 8. On January 5, 2012, Ms. Parker lunched with fellow

teacher Brandi Boone and two other teachers. During lunch ,

Ms. Parker said that she did not use the " Elements of Literature "

curriculum book and had not used it since the beginning of the

year , because it was " too difficult " for her students.

39. On January 11, 2012, Dr. Knight conduct ed an ESOL

meeting to address aligning the ESOL curriculum w ith the general

English curriculum. Having both general and ESOL student s use

the " Elements of Literature " curriculum was part of the school ' s

required teaching strategy. During the meeting, Ms. Parker told

Dr. Knight that she used the " Elements of Liter ature " curriculum

and that she loved it.

4 0. On January 12, 2012, Ms. Boone approached Dr. Knight

and told Dr. Knight about Ms. Parker ' s statement during the

January 5, 2012 , lunch meeting that she was not using " Elements

of Literature " because it was to o difficult for her students.

4 1. On January 17, 2012, Dr. Knight called Ms. Parker in to

her office. Assistant Principal Alisa Dorsett was present.

4 2. During the meeting Dr. Knight asked Ms. Parker if she

used " Elements of Literature. " She asked be cause of her

observations of Ms. Parker ' s classroom teaching and Ms. Boone ' s

statements. Ms. Parker said that she was.

4 3. Because of what she had observed and what Ms. Boone had

reported, Dr. Knight questioned the accuracy of this. She told

Ms. Parke r she thought that Ms. Parker was " being less than

honest. " This was a fair observation based on the information

known to Dr. Knight.

4 4. During the meeting, Ms. Parker repeatedly got up and

tried to go behind Dr. Knight ' s desk to show her documents.

Dr . Knight repeatedly had to ask Ms. Parker to sit down.

4 5. At the end of the meeting, Ms. Parker told Dr. Knight

that " If you want to go to court, we can go to court. "

Ms. Parker testified that she said: " Shall we go to court?

We ' ll go to court. "

4 6 . Regardless of the exact wording, the gist of the

comment is the same. The comment, like Ms. Parker ' s conduct in

the meeting, was a combative, discourteous, threatening, and

uncooperative response to Dr. Knight ' s attempt to address a

professional issue. The comment and Ms. Parker ' s behavior in the

meeting also interfered with Ms. Parker ' s ability to perform her

duties and the ability of Dr. Knight to perform her duties.

4 7. It is not the fact that Ms. Parker wanted to exercise

her legal rights that is i mproper. It is the way she expressed

it that is improper.

4 8. Ms. Parker ' s repeated attempts to move behind

Dr. Knight ' s desk were also combative, discourteous, threatening,

and uncooperative.

Emails of January 17 and 18

49. After the January 17 meet ing, Ms. Parker wrote emails

to Dr. Knight and Ms. Dorsett. In her January 17 email to

Ms. Dorsett, Ms. Parker asked Ms. Dorsett to write in her notes

that Dr. Knight told Ms. Parker that she was a dishonest person

and that Ms. Parker had lied during the ESOL meeting.

5 0. Ms. Dorsett replied that she would write that

Ms. Parker had asked to have that statement included in her

notes. But Ms. Dorsett testified that she did not agree that the

requested additions were accurate.

5 1. Ms. Parker sent another email to Dr. Knight on

January 18, 2012 , in which she said that Ms. Dorsett had not

responded to the January 17 email. Ms. Parker then asked in the

email , " So who is dishonest then? "

5 2. The statement is discourteous, disrespectful, a display

of temper , and uncooperative. It also interfered with

Ms. Parker ' s ability to perform her duties and the ability of

Dr. Knight and Ms. Dorsett to perform their duties.

Communications with Ms. Boone

5 3. On Sunday, January 22, 2012, at 12:49 a.m., Ms. Parker

sent Ms. Boone an email. In it , Ms. Parker accused Ms. Boone of

telling Dr. Knight that she grouped her students by ethnicities.

5 4. Ms. Parker, who suspected but had not confirmed that

Ms. Boone told Dr. Knight that she said she did not use " Elements

of Lit erature , " went on to discuss her usage of " Elements of

Literature. "

5 5. The email concluded: " My colleagues who create

slanders will be really upset when investigation starts.

According to The Principles of Professional C onduct, ' the

educator shall ma intain honest y in all professional dealings. '

You have to be honest and tell the truth. You must take

responsibility for your words and actions. "

5 6. The statement was threatening. Ms. Parker intended to

convey to Ms. Boone that she would sue her for slander.

Exercising your legal rights, including in a work place context,

is not inherently improper. But Ms. Parker ' s threat of

investigations and slander suits reduced her ability to

effectively perform her duties, reduced Ms. Boone ' s ability to

effect ively perform her duties, harassed Ms. Boone, created a

hostile and intimidating environment, and was bullying.

5 7. Ms. Boone replied in an email of January 22, 2012, at

8:24 p.m. She denied accusing Ms. Parker of grouping students by

ethnicity. She ack nowledged providing information to Dr. Knight

and that she was appalled when Ms. Parker told Dr. Knight she

used and loved " Elements of Literature. " In a second email a few

minutes later, Ms. Boone said that she wanted Dr. Knight present

for any further c onversations between her and Ms. Parker about

students or Ms. Parker ' s claims.

5 8. Ms. Parker responded with a lengthy email that included

the following series of sarcastic and combative statements.

You showed yourself a very disrespectful

person accusing me, a veteran teacher, who is

2 times older than you, who has worked 34

years at school.

I also noticed that you have hearing

problems. Am I right?

Maybe you misunderstood something and jumped

to conclusions?

Besides, I love humor. Boring people do not

understand it as a rule.

And guess what? I have a lot of students '

works done during the first semester based on

" Elements of Literature " , and I can show them

to everybody at any time. I showed them to

Dr. Knight.

Why should I tell [sic] that I did not work

with EL???

You saw my students ' projects too. In your

class there are no students ' works at all!

To sum up, you violated the Principles of

Professional Conduct: Obligation to the

Profession of Education (d) and (e) because

you created offensi ve environment and made a

malicious statement about your colleague

(me).

Now you will have to take responsibility for

your words.

After your actions I have no desire to

communicate with you at all, but because of

working conditions I will have to have " t hat

pleasure " , only in the presence of Rita or

administrator.

59. Ms. Parker ' s statements in these email communications

harassed Ms. Boone and created a hostile, intimidating, and

oppressive environment. The statements were discourteous and

interfered with the ability of Ms. Parker and Ms. Boone to

perform their duties.

Midpoint Evaluation

6 0. Dr. Knight met with Ms. Parker on January 19, 2012, to

discuss her midpoint evaluation. Assistant Principal Bridget

Bresk attended as a witness. During the me eting, Dr. Knight gave

Ms. Parker a direct and reasonable order to acknowledge that she

had received the written mid - point evaluation. Ms. Parker had

not acknowledged receipt as requested when she was provided the

evaluation. The acknowledgement form onl y asked the teacher to

acknowledge receiving the evaluation . It did not state or imply

that the teacher agreed with the evaluation.

6 1. Ms. Parker refused. Ms. Parker said that she would not

acknowledge receipt of the evaluation because she did not ag ree

with it. Dr. Knight explained that the acknowledgement simply

stated that Ms. Parker had received it and did not say that

Ms. Parker agreed with the evaluation.

6 2. Ms. Parker still refused. She told Dr. Knight that

" acknowledge " means to agree and that Dr. Knight " should look it

up yourself. "

6 3. Ms. Parker intentionally refused to obey a reasonable

direct order given by her direct supervisor, Dr. Knight.

Ms. Parker was also discourteous and uncooperative. Her conduct

impaired Dr. Knight ' s abili ty to perform her duties.

6 4. During the meeting, when they discussed what Ms. Parker

needed to improve, Ms. Parker told Dr. Knight " sorry for

breathing. " She sought to justify the comment by saying it was

an " American expression. "

6 5. Ms. Parker also t old Dr. Knight her comments after the

classroom observation about celebrating student success were

" ridiculous. "

6 6. At the meeting ' s end , Ms. Parker told Dr. Knight one of

the following: " I have people who will take care of me and I

have people who wil l take care of you " ; " There are people who

will take care of me and take care of you. " ; or " There are

people who will take care of me and you. "

6 7. There are no material differences between the three

statements. Any version is a threatening and b ullying statement.

Ms. Parker ' s argument that she was only stating the obvious , that

she could file a grievance , is not persuasive. She made no

reference to a grievance in the meeting. Her words plainly

convey a darker impression than " we may have to ag ree to disagree

and resolve our disagreements legally " or " I will file a

grievance about this. "

6 8. The preceding comments were threatening, bullying,

discourteous, disrespectful, and uncooperative. Also , throughout

the meeting , Ms. Parker ' s conduct impa ired the ability of

Dr. Knight and Ms. Parker to perform their duties.

69. After the meeting, Ms. Parker sent Dr. Knight two

emails. The first, sent at 5 :20 p.m. , included the following two

sarcastic statements :

A. I appreciate your close attention to me

lately. I wish you started to analyze

planning problems since the beginning of the

school year, but better late than never.

B . Well, I think you are very brave. I

wonder if you are aware of the fact that

Code of Civility refers to all OCPS

employee s, not only teachers.

7 0 . The second, sent 30 minutes later, included the two

statements that follow.

A. Referring to Dr. Knight ' s concerns about

whether Ms. Parker was using the " Elements

of Literature, " Ms. Parker said: It proves

again and again your hostile biased

attitude.

B. Earlier or later, we all have to pay for

what we have done. . . . (Unknown author).

7 1 . Ms. Parker ' s original explanation that she was

paraphrasing a biblical passage and her later explanation that

she was quoting Oscar Wil de are neither persuasive nor material.

The source of the quote does not alter the fact that the

statement and the entire email are discourteous, disrespectful,

bullying, and uncooperative.

Grievance Meeting

7 2 . On January 20, 2012, Ms. Parker submitted a grievance

to the Board ' s employee relations office. Carianne Reggio, the

Equal Employment Opportunity Officer and Equity Officer for the

Orange County Schools, investigated the grievance.

7 3 . Ms. Reggio met with Ms. Parker on March 20, 2012, to

advise her of the result of the investigation.

74 . During the meeting Ms. Parker displayed, as she had in

her meetings with Dr. Knight, what the union representative

described as confidence " that borders on what we might perceive

as arrogance. "

7 5 . During th e meeting , Ms. Parker gave no indication that

she acknowledged that anything she had said or done during the

communications and meetings from December 2011 forward was

inappropriate or improper. She maintained that same position

during her testimony .

76 . During the three - hour meeting, Ms. Reggio reviewed her

findings of no violations with Ms. Parker and considered

Ms. Parker ' s reactions and complaints. Ms. Parker was very

upset.

77 . While Ms. Reggio was walking Ms. Parker to the

elevator , Ms. Parker sai d she could see why teachers resort to

extreme measures and shoot up school systems. This was a

reference to a recent murder/suicide in Jacksonville, Florida,

where a teacher shot the headmistress of his school and then

killed himself.

78 . Ms. Parker di d not accompany this statement with any

gestures, a display of a weapon, or any more specific statement.

The statement was crass, disquieting, and inappropriate. But it

was not a threat.

79 . On March 6, 2012, the Superintendent of Schools

recommended te rmination of Ms. Parker ' s contract.

CONCLUSIONS OF LAW

Statement of Stipulated Issues of Law 3/

8 0 . Pursuant to § 1012.33(1)(a):

All such contracts, except continuing

contracts as specified in subsection (4),

shall contain provisions for dismissal

during the term of the contract only for

just cause. Just cause includes, but is not

limited to, the following instances, as

defined by rule of the State Board of

Education: immorality, misconduct in

office, incompetency, two consecutive annual

performance eva luation ratings of

unsatisfactory under s. 1012.34, two annual

performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012.34, three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under s.

1012.34, gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

8 1 . Miscon duct in office is defined by Florida

Administrative Code Rule 6A - 5.056(2) as follows:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional C onduct for the Education

Profession in Florida as adopted in Rule

6B - 1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability o r his or her colleagues ' ability to

effectively perform duties.

8 2 . Gross insubordination means the intentional refusal to

obey a direct order, reasonable in nature, and given by and with

proper authority; misfeasance, or malfeasance as to involve

failur e in the performance of the required duties. F.A.C.

6A - 5.056(4) .

8 3 . Willful neglect of duty means intentional or reckless

failure to carry out required duties. F.A.C. Rule 6A - 5.056(4).

8 4 . The Principals of Professional Conduct for the

Education Profe ssion in Florida, Florida Administrative Code Rule

6B - 1.006 requires as follows:

Obligation to the student requires that the

individual:

" Shall make reasonable effort to protect the

student from conditions harmful to learning

and/or to the student ' s me ntal and/or

physical health and/or safety. " ( Rule

6B1 - 1.006(3)(a) )

" Shall not intentionally expose a student to

unnecessary embarrassment or disparagement. "

( Rule 6B - 1.006(3)(e))

" Obligation to the profession of education

requires that the individual:

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 processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination. " (Rule 6B - 1.006(5)(d))

8 5 . Orange County Management Directive B - 12 states as

follows:

Co de of Civility

The education of a child happens only through

partnership and among partners must be the

child, the school faculty and staff, the

parent(s) or guardian(s), the community and

district office employees. Partnership is an

active state that in cludes sharing

responsibilities, meaningful communication

and welcomed participation. When people who

are working together agree, the partnership

runs smoothly. But no two people will

always agree and that can make partnership

difficult. The partnership is most

powerful - - as children are educated to reach

their potential - - when we agree on how to

disagree. We must be civil in our discourse.

Civility is often described by its absence.

We hear of harmful actions such as road rage,

physical confrontation, ethnic stereotypes

and slurs. But civility is not just an

absence of harm. It is the affirmation of

what is best about each of us individually

and collectively. It is more than saying

" please " and " thank you. " It is reflecting

our respect for others in our behavior,

regardless of whether we know or like them.

It also is not simply being politically

correct and is not to be used to stifle

criticism or comment. It is being truthful

and kind and is each of us taking

responsibility for our own actions rat her

than blaming others.

As we communicate with each other, we need to

remember that we are working together to

benefit the children of this community.

Therefore, the Orange County School Board

requires that as we communicate; students,

OCPS faculty and staff, parents, guardians

and all other members of the community shall:

Aeat each other with courtesy and

respect at all times

This means that:

We listen carefully and respectfully as

others express opinions that may be

different from ours

We share our opinions and concerns

without loud or offensive language,

gestures or profanity

Beat each other with kindness

This means that:

We treat each other as we would like to

be treated

We do not threaten or cause physical or

bodily harm to another

We do not threaten or cause damage to the

property of another

We do not bully, belittle or tease

another and we do not allow others to do

so in our presence

We do not demean and are not abusive or

obscene in any of our communications

C. Take responsibility for our own actions

This means that:

We share information honestly

We refrain from displays of temper

We do not disrupt or attempt to interfere

with the operation of a classroom or any

other work or public area of a school or

school facility

D. Cooperate with each other

This means that:

We obey school rules for access and

visitation

We respect the legitimate obligations and

time constraints we each face

We notify each other when we have

information that might help reach our

common goal. This includes information

about - safety issues - academic

progress, changes that might impact a

student ' s work, events in the community

that might impact the school

We respond when asked for assistance

We understand that we d o not always get

our way

86 . Authority and Enforcement of the Code of Civility

Authority and enforcement of a code for civil conduct ultimately

depends on the individual and collective will of those involved -

students, OCPS faculty and staff, parents, g uardians and all

other members of the community. However, individuals need to

know how to respond to uncivil behavior and how such behavior

will be responded to.

Therefore:

A. A student who believes that he or she has

not been treated in a manner reflec tive of

the Code of Civility should report such

behavior to the appropriate school

administrator.

B. A parent, guardian or community member

who believes that he or she has not been

treated in a manner reflective of the Code of

Civility should report such behavior to the

staff member ' s immediate supervisor.

C. An employee who believes that he or she

has not been treated in a manner reflective

of the Code of Civility should use the

following guidelines:

If personal harm is threatened, the

employee may contact law enforcement.

Anyone on school district property

without authorization may be directed to

leave the premises by an administrator or

security officer. Anyone who threatens

or attempts to disrupt school or school

district operations, physica lly harm

someone, intentionally cause damage, uses

loud or offensive language, gestures,

profanity or shows a display of temper

may be directed to leave the premises by

an administrator or security officer. If

such person does not immediately and

willingl y leave, law enforcement shall be

called.

If a telephone call recorded by an

answering machine, email, voice mail

message or any type of written

communication is demeaning, abusive,

threatening or obscene the employee is

not obligated to respond.

If personal harm is threatened, the

employee may contact law enforcement .

The employee shall save the message and

contact his or her immediate supervisor

or school district security.

If any member of the public uses

obscenities or speaks in a demeaning,

loud or insulting manner, the employee to

whom the remarks are directed shall take

the following actions:

Calmly and politely ask the speaker to

communicate civilly.

If the verbal abuse continues, give

appropriate notice to the speaker and

terminate the meeting, conference or

telephone conversation.

If the meeting or conference is on school

district premises, request that an

administrator or authorized person direct

the speaker promptly to leave the

premises.

If the speaker does not immediately leave

the premises, an administrator or other

authorized person shall notify law

enforcement to take any action deemed

necessary.

87 . Conduct unbecoming a public employee is that conduct

" which falls below a reasonable standard of conduct prescribed by

t he employer. " See Orange County School Board v. Michael

O ' Beill , 2006 WL 1674280, Case No. 05 - 4551 (Fla. DOAH June 16,

2006)(Recommended Order), citing Seminole County Board of County

Commissioners v. Long , 422 So. 2d 938 (Fla. 5th DCA 1982).

Jurisdicti on, Burden, and Authority

88 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this case

pursuant to sections 120.569, 120.57(1), and 1012.40(2)(c),

Florida Statutes.

89 . The superintendent of the school district has the

authority to make recommendations for dismissal regarding school

employees pursuant to section 1012.27(5).

90 . The Board has the authority to dismiss employees

pursuant to sections 1001.42(5) and 1012.22(1)(f) , Florida

Statutes.

9 1 . D is trict school boards have authority to " adopt rules

governing personnel matters. " § 1012.23(1).

9 2 . Article XII(A)(1) of the Contract Between the School

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

Teachers Association (2010 - 2011) pro vides for discipline of

teachers such as Ms. Parker. It states: " 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 a reasonable expect ation of management which

reasonably should have been known to the employee. "

9 3 . The Board must prove that it has just cause to

terminate Ms. Parker ' s employment. Dileo v. Sch. Bd. Dade Cnty.

569 So. 2d 883 (Fla. 3d DCA 1990). It must prove just cause by a

preponderance of the evidence. See McNeill v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2nd DCA 1996); Sublett v.

Sumter Cnty. Sch. Bd. , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995).

9 4 . A pattern of verbal attacks on colleagues, as well as

ho stile and aggressive conduct towards a teacher ' s supervisors,

demonstrate just cause to discharge a teacher for misconduct in

office and gross insubordination. The behavior violates Florida

Administrative Code Rule 6B - 1 .006(5)(d). Gilchrist Cnty. Sch.

Bd . v. Taylor , Case No. 01 - 4891 (Fla. DOAH June 26, 2002;

Gilchrist Cnty. Sch. Bd. July 30, 2002).

9 5 . A teacher ' s repeated disrespectful conduct is

sufficient to demonstrate " a complete roadblock " to the teacher ' s

ability to be effective in the school sys tem. Sarasota Cnty.

Sch. Bd. v. Ehlers , Case No. 10 - 4142 (Fla. DOAH Nov. 10, 2010;

Sch. Bd. Sarasota Cnty . Dec. 7, 2010)

96 . A persistent, sustained, and unreasonable course of

defiance over time, with a disaffected attitude toward authority ,

justifies termination of a teacher for gross insubordination.

Id.

97 . In Ehlers , the employee ' s formal disciplinary history

was a verbal reprimand issued eight years before the termination

recommendation. This contrasts with Ms. Parker who was

reprimanded twice and suspended once in the two years before her

termination for repeated discourteous, disrespectful,

uncooperative, and combative conduct towards her supervisors and

a colleague.

98 . Progressive discipline is not required when there are

threats of viole nce and repeated harassment of co - workers. Id.

See also Sarasota Cnty. Sch. Bd. v. Berry , Case No. 09 - 3557 (Fla.

DOAH Jan . 27, 2010; Sch. Bd. Sarasota Cnty . March 2, 2010).

Charges of the Administrative Complaint

99 . Section 1012.40(2)(c) requires a superintendent and a

school board to provide an employee written notice of the reasons

for termination. The charges of the Amended Administrative

C omplaint must , therefore , be considered to determine if the

Board has proven just cause for termination. Cf. Klein v. Dep ' t

of Bus. and Prof ' l Reg. , 595 So. 2d 966, 967 (Fla. 2nd DCA 1993).

10 0 . Rule 6A - 5.056 defines the criteria for suspension and

dismissal of teachers for just cause. The Joint Pre - Hearing

Stipulation quotes the rule ' s current definition of " gross

insubordination " as an issue of law upon which there was

agreement. At the hearing, Ms. Parker argued that an earlier

version of the rule should be applied. The current law is

applied, as stipulated by the parties. See Gunn Plumbing, Inc.

v. Dania Bank , 252 So. 2d 1, 4 (Fla. 1971).

10 1 . The Amended Administrative Complaint charges that

Ms. Parker violated section 1012.795 (l)(i) by violating the

Principles of Professional Conduct for the Education Profession

prescribed by State Board of Edu cation rules. Rule 6B - 1.006

establishes the Principles of Professional Conduct for the

Education Profession in Florida.

10 2 . Rule 6B - 1.006(4)(d) provides that a teacher:

Shall not engage in harassment or

discriminatory conduct which unreasonably

inte rferes 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; . . . .

10 3 . Ms. Parker ' s communications and conduct, other than

her comment leaving the grievance determination review meeting,

as determined in the Findings of Fact , violated this rule. She

repeatedly harassed Ms. Boone. Her insubordination and emails

were so repeated and extreme that the y a mounted to harassment of

Dr. Knight. The conduct interfered with Dr. Knight ' s and

Ms. Boone ' s performance of their professional responsibilities.

The Board proved the violation charged.

1 0 4 . The Amended Administrative Complaint charges that

Ms. Parker violated section 1012.33(l)(a) in that she engaged in

misconduct in office sufficient to impair her effectiveness as a

teacher. Ms. Parker ' s conduct and communications demonstrated

that she was unwilling to participate in the school ' s evaluation

process. She would not even acknowledge receipt of her

evaluation. She refused to even consider criticism and

suggestions . She repeatedly accus ed her supervisors of bias and

being inferior to her. This misconduct impaired her

effectiveness as a teacher.

1 05 . The Amended Administrative Complaint charges that

Ms. Parker violated s ection 1012.33(1)(a) by committing gross

insubordination. That section makes gross insubordination just

cause for discharge. Ms. Parker ' s refusal to participate in the

evaluation pr ocess and her refusal to sign the form acknowledging

receipt of her evaluation was gross insubordination.

The Code of Civility

1 06 . The Amended Complaint does not refer to Orange County

Manage ment Directive B - 12, the Code of Civility. The parties,

howe ver, identified whether Ms. Parker violated the Code as an

issue in their Joint Pre - Hearing Stipulation.

107 . Ms. Parker ' s conduct and communications as determined

in the Findings of Fact repeatedly violated the Code of Civility.

The Code requires court eous and respectful treatment of others.

Ms. Parker was discourteous and disrespectful.

1 08 . The Code prohibits bullying. Ms. Parker bullied

Ms. Boone and Dr. Knight.

1 09 . The Code requires teachers to refrain from displays of

temper. Ms. Parker rep eatedly displayed her temper in written

and spoken communications.

11 0 . The Code requires cooperation. Ms. Parker was

uncooperative time and time again. Her lack of cooperation

extended to refusing meaningful participation in her evaluation

and refusing to acknowledge having received the evaluation.

11 1 . Ms. Parker offered two primary theories of defense.

One was that management was biased against her and treated her

differently than other teachers. Persuasive credible evidence

does not support the theory. Among other things, there is no

credible, persuasive evidence that other employees engaged in a

pattern of conduct similar to Ms. Parker.

11 2 . The other theory was that her conduct should have been

recognized as consistent with Lithuanian culture and excused on

that account. The theory fails at the outset , setting aside the

question of its legal sufficiency, for lack of evidence that

behavior such as Ms. Parker's is the norm in Lithuania.

11 3 . The facts proven by the credible, persuasive evid ence

establish just cause for termination of Ms. Parker's contract.

Courts accept conflict with supervisors as a legitimate cause for

discharge. Davis v. State University of New York , 802 F.2d 638 ,

642 (2 nd Cir. 1986). Also disruptive behavior in the w orkplace is

just cause for termination. See Johnson v. Allyn & Bacon Inc. ,

731 F.2d 64, 73 (1st Cir.), cert. denied , 469 U.S. 1018 (1984).

Discourtesy, too, is just cause for termination. See NLRB v.

O. A. Fuller Super Markets, Inc. , 374 F.2d 197 (5 th C ir. 1967).

114. Ms. Parker's history of three disciplines for similar

conduct buttresses the conclusion that termination is the proper

action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Ora nge County School Board enter

a final order finding that there is just cause to terminate

Ms. Parker ' s employment and terminating her professional service

contract for just cause pursuant to section 1012.33, Florida

Statutes.

DONE AND ENTERED this 2 3rd day of October , 2012 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 3rd day of October , 2012 .

ENDNOTE S

1/ All references to the Florida Statutes are to the 2011 edition

unless otherwise noted .

2/ Th e stipulated facts are reproduced in paragraph s one through

six as presented in the Joint Pre - Hearing Stipulation.

3/ The Statement of Stipulated Issues of Law is reproduced in

paragraphs 80 through 87 as presented in the Joint Pre - Hearing

Stipu lation, except for some formatting modifications.

COPIES FURNISHED:

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Counsel

D epartment of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Barbara Jenkins, Superintendent

Orange County Schools

445 West Amelia Street

Orlando, Florida 32801 - 0271

Joseph Egan, Jr., Esquire

Egan, L ev and Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802 - 2231

John C. Palmerini, Esquire

Orange County School Board

445 West Amelia Street

Orlando, Florida 32801 - 1128

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wri tten 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.