12-002009TTS Palm Beach County School Board vs. Paula Prudente Status: Closed Recommended Order on Friday, December 7, 2012.

Summary: Dismissal for teacher who, after repeated warnings, used School District email to harass coworkers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH )

COUNTY, FLORIDA , )

)

Petitioner , )

) Case No. 12 - 2009TTS

vs. )

)

PAULA PRUDENTE , )

)

Respondent . )

)

RECOMMENDED ORDER

On September 21, 2012, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings, conducted the

final hearing in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Shawn N. Bernard, Esquire

Office of the Ge neral Counsel

3300 Forest Hill Boulevard, Suite C - 323

West Palm Beach, Florida 33406

For Respondent: Jeffrey Sirmons, Esquire

Johnson and Sirmons, LLP

501 Vonderburg Drive, Suite 305

Brandon, Florida 33511

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to dismiss

Respondent for misusing School District technology, harassing,

intimidating or bullying School Board employees, committing

professional or ethical misconduct or gross insubordination, or

failing to follow a policy, rule or directive.

PRELIMINARY STATEMENT

By Notice of Suspension and Recommendation for Termination

from Employment dated April 16, 2012, Petitioner's

superintendent informed Respondent that he had determined that ,

by clear and convincing evidence, just cause existed to

terminate Respondent's employment as a teacher. The

sup erintendent advised that he would recommend that , at its next

meeting, the School Board suspend Respond ent for 15 days without

pay and terminate her employment .

The April 16 l etter states that Respondent misused School

District technology, bullied and harassed School Board

employees, committed professional misconduct, ethical misconduct

and gross insubordin ation, and failed to follow a po licy, rule,

or directive. The letter states that these alleged acts and

omissions violate School Board policies 1.013(1), 3.02(4)(a),

(d) and (e) and (5)(c), 3.10(6), 3.29(10)(d), and 5.002(3) and

Florida Administrative Cod e Rules 6B - 1.001(3), 6B - 1.006(4)(a)

and (b) and (5)(a), (d), (e) and (h), and 6B - 4.009(3) and (4).

The April 16 letter alleges that just cause for dismissal exists

under sections 1012.22(1)(f), 1012.27(5) and 1012.33 , Florida

Statutes ; School Board policie s 1.013 and 3.27; and article II,

section M of the collective bargaining agreement.

The April 16 letter gives Respondent the choice of filing a

grievance or requesting a formal administrative hearing.

Respondent timely requested a formal administrative he aring.

By Petition filed June 7, 2012, Petitioner alleged the

factual bases for the proposed dismissal of Respondent. The

earliest alleged incident took place on July 12, 2011, when

Deneen Wellings, Petitioner's Equal Employment Opportunity (EEO)

Coordin ator, asked Sandra Gero, Petitioner's former Director of

Employee Relations, for help in stopping Respondent's harassment

of Ms. Wellings. The Peti tion alleges in some detail

Ms. Wellings' characterization of Respondent's communications,

but does not refe r to the timeframe of the communications

the mselves, which is late June 2011 . The apparent purpose of

the reference to these communications is explain why , on

July 13, 2011, Darron Davis, Petitioner's former Chief of Human

Resources, issued a warning to R espondent not to send

unprofessional emails and telephone messages.

The Petition alleges that, on November 8, 2011, Respondent

sent the first of multiple emails to Diane Howard, Petitioner's

Director of Benefits and Risk Management, and Ms. Howard's

staff. These emails were allegedly so numerous and disruptive

that Ms. Howard directed Respondent to stop emailing her. But

Respondent continued to email Ms. Howard until January 23, 2012.

At the start of the hearing, Petitioner moved for leave to

amend the Pe tition in three respects. A s to paragraph 10,

Petitioner requested leave to amend the fourth word of the first

sentence from "four" to "eight," so as to allege that, over the

past eight years, Respondent had engaged in unprofessional

conduct and ignored d irectives to stop using School Board email

to harass, intimidate, and bully School Board employees. And,

a s to paragraph 11 , Petitioner requested leave to amend the

first sentence by adding "counseled and" immediately before

"disciplined" and adding to th e end of this sentence: "dating

back to 2003." The purpose s of the second and third amendments

were to identify the period over which Respondent had been

counseled and disciplined.

Respondent objected to the first and third amendments. The

Administrat ive Law Judge overruled the objections and allowed

all three amendments. The amendments do not alter the timeframe

of alleged harassment and insubordination on which Petitioner

relies for dismissal. T he amendments merely identify the longer

period during which incidents involving Respondent might provide

context, such as to show that subsequent acts were more likely

intentional insubordination or conscious harassment.

At the hearing, Petitioner called 11 witnes ses and offered

into evidence 47 exhibits : Petitioner Exhibits 1 - 41, 43, and

53 - 57 . Respondent called one witness and offered into evidence

one exhibit: Respondent Exhibit 1 . All exhibits were admitted .

The court r eporter filed a transcript on October 8, 2012.

On October 18, 2012 , the court rep orter filed a second

transcript, which corrected undisclosed error s in the first

transcript. On separate occasions, t he court reporter and

parties requested the Administrative Law Judge to discard the

first transcript, so he has done so, and the second tr anscript

is the official transcript of the proceeding.

The parties filed proposed recommended orders on

November 19, 2012 .

FINDING S OF FACT

1. Respondent has been employed by the Palm Beach County

School Board from 1978 through May 2, 2012 ; for nearly a ll of

these 24 years, she has been employed as a classroom teacher .

Respondent holds a continuing contract, although the parties

have stipulated that this is a "just cause" case, pursuant to

the collective bargaining agreement between Petitioner and the

P alm Beach County Classroom Teachers Association, July 1, 2011 -

June 30, 2014 ( CBA) . CBA, Article II, Section M.1 authorizes

dismissal of an instruction al employee if Petitioner prov es just

cause by clear and convincing evidence . ( In an abundance of

cautio n, for reasons explained in the Conclusions of Law, this

Recommended Order relies on the continuing contract for the

limited grounds for dismissal and the CBA for the clear and

convincing standard of proof for dismissal. )

2. Petitioner has previously tran smitted to the Division

of Administrative Hearings (DOAH) two adverse employment

proceedings against Respondent. In DOAH Case 10 - 0371 (Prudente

I), Petitioner proposed, in December 2009, to suspend Respondent

without pay for ten days for using School D ist rict email to send

to her coworkers emails that, among other things, depicted a

presidential candidate in a negative fashion. In DOAH Case No.

10 - 10835 (Prudente II), Petitioner proposed the termination of

Respondent for sending to her coworkers inappropr iate emails

under circumstances that established gro ss insubordination and

harassment, intimidation , and bullying of other School Board

employees.

3. Prudente I covers acts and omissions from Febru ary 2007

through November 2008 (Tr. 186); Prudente II co vers alleged acts

and omissions from 2009 through June 30, 2010 (Tr. 189); and the

present case covers acts and omissions from July 1 2 , 2011

through February 2012 ( Petition, paragraph 20, and Tr. 15, 20,

22, 27, and 150).

4 . After an administrative hear ing in Prudente I , o n

January 24, 2011, DOAH Administrative Law Judge June C. McKinney

issued a R ecommend ed O rder urging that the School Board enter a

Final O rd er rescinding the proposed ten - day suspensi on and

awarding Respondent back pay. After transmitt al to DOAH,

Prudente II was assigned to the undersi gned Administrative Law

Judge, but this case never went to hearing.

5 . By Settlement Agreement dated March 30, 2011,

Respondent and Petitioner disposed of Prudente I and II. T he

Settlement Agreement prov ides for : a) Respondent to be

susp ended for ten days without pay; b) Petitioner to withdraw

its exceptions and issue a Final O rder adopting the Recommended

O rder in Prudente I; and c) the parties not to reopen Prudente

I I after it had been closed without prejudice. Given the

adoption of the Prudente I Recommended O rder, the basis for the

ten - day suspension without pay must have be en Prudente II ,

although this is unclear from the Settlement Agreement .

6 . T he reference to back pay in the Prudente I Recomm ended

O rder implies that Respondent served her suspension prior to the

November 2010 hearing . However , the record in the present case

suggests otherwise . First, after the execution of the

Settlement Agreement, Respondent served the ten - day suspension

men tioned in the agreement; if she had already served the ten -

day suspension that had been proposed in Prudente I, she

presumably would have been credited for this suspension in the

Settlement Agreement. Second, a t the hearing, a discussion

among counsel and the Administrative Law Judge suggested that

the ten - day suspension ordered by the Settlement Agreement arose

under Prudente II . ( Tr. 190 - 93. )

7 . Although Prudente II is thus the source of prior

discipline, which is relevant if Respondent is subject to

discipline in the present case, Prudente I, not Prudente II ,

provides a source of facts that may be useful in the present

case establishing, for instance, Respondent's state of mind or

knowledge while sending the emails from July 1 2 , 2011, through

Februar y 2012 . By adopting the Prudente I Recommended Order,

the School Board, in its Final O rder, adopted the findings of

Judge McKinney -- many of which were unfavorable to Respondent -- as

well as her ultimate recommendation, which was, of course,

favorable to Re spondent. By contrast, Prudente II does no t

establish any facts becau se, prior to the hearing, the parties

settled the case without admitting to any guilt .

8 . After serving her ten - day suspension without pay ,

Respondent resumed teaching duties on April 7, 2011 . She

received a temporary assignment at Dreyfoos High School for what

remained of the 2010 - 11 school year . Undeterred by her recent

suspension, Respondent quickly returned to her emailing ways.

9. In May and June 2011, Respondent sent a series of

rambling, sometimes - incoherent emails complaining of various

forms of mistreatment directed to her. Respondent sent these

emails to various persons, includ ing members of the School

Board, the Central Area superintendant , Ms. Gero, and an EEOC

investiga tor. But Respondent's preferred recipient appears to

have been Ms. Wellings, evidently due to her EEO

responsibilities and Respondent's self - identification as a

victim of employment discrimination.

10. Respondent evidently had filed a discrimination

comp laint against Petitioner with the Equal Employment

Opportunity Commission (EEOC). The EEOC complaint appears to

have alleged that Petitioner had failed , after the Settlement

Agreement, to pay the back pay ordered by Judge McKinney in

Prudente I; to reinst ate certain medical, dental , and vision

benefits; to grant Respondent a preference for her permanent

teaching assignment at Dreyfoos ; and to redress miscellaneous,

earlier grievances. Appearing to have become dissatisfied with

what she viewed as Petitione r's intr ansigence in the EEOC

proceeding , Respondent evidently decided to bring pressure on

Ms. Wellings by announcing her list of grievances directly or

indirectly to third parties who, Respondent assumed , had some

influence over Ms. Wellings.

11. For example, o n June 20, 2011, Respondent sent to

Ms. Wellings, with copies to an EEOC representative and others,

the following email:

Please, DO NOT CONSIDER PBCSD DECEITFUL

DENEEN WELLINGS EEO DISCRIMMINATION [sic],

Retalliation [sic] and Legal Dept Cafet eria

Style Misrepresentations with her Negligence

& Failure to Follow EEO, Ethics & DOAH

Judges' Recommended Orders she requested to

overturn with Unethical Agreement

Malpractices as she has written in her

letter of June 13, 2011.

1 2 . On the same day, Re spondent left a three - minute

voicemail on the office telephone of Ms. Wellings. The

voicemail began :

Hello this is a message for the deceitful

Deneen Wellings. This is Paula Prudente

. . .. I have . . . sent an EEOC, an EEO

and Ethics complaint and a pe nding lawsuit

against you and you do not have a right to

file a motion to dismiss it. You are not

dismissed Deneen. You are very deceitful

and you still have a pending lawsuit against

you. . . . [Y]ou are not excused and you

are not dismissed. . . . Gi ve me my back

pay for November, my health insurance and my

reinstatement of my position at Dreyfoos

School of the Arts, my ADA accommodation and

you are going to have to cease and desist

your cafeteria style of . . . law and

agreements cause . . . you are very wrongful

in your misrepresentations . . . you are

very deceitful Deneen. I will also be out

of town but . . . the lawsuit is still going

against you. You are not dismissed. Thank

you.

The message continues, essentially restating the statements set

forth above.

13 . When Ms. Wellings returned from vacation on July 12,

2012, and found the hostile email and voicemail of June 20 and

other emails of similar tone, Ms. Wellings emailed Ms. Gero

about Respondent . Ms. Wellings described the tone of the

voi cemail as "threatening" and the email and voicemail as

"insulting and offensive." Ms. Wellings characterized the email

as unprofessional and unethical because Respondent had provided

false information about Ms. Wellings to School Board members and

employ ees, Administrative Law Judges, and representatives of

state and federal agencies. Ms. Wellings wanted Respondent to

stop this "harassing behavior" and asked Ms. Gero to take

whatever action she deemed necessary and appropriate.

14 . Listening to the June 20 voicemail, Ms. Gero agreed

that the tone was "very threat ening" and suspended Respondent's

access to School District email. Since Respondent had been

placed on temporary assignment, she was being supervised by

Mr. Davis, so Ms. Gero referred the matte r to him for further

action .

15 . On the next day , Mr. Davis sent Respondent a Specific

Incident Memorandum and Administrative Directive. Noting the

confrontational nature of the email to Ms. Wellings and the

copying of the email to School Board members a nd others,

Mr. Davis's memorandum reminds Respondent of Petitioner Policy

3.29(10)(d), which states that School District email shall be

used for School District business and shall not be used to send

abusive, threatening, or harassing messages.

16 . Refe rring to the voicemail to Ms. Wel lings,

Mr. Davis's memorandum states that Respondent called

M s. Wellings names that were unprofessional, malicious,

insulting, and demeaning. The memorandum reminds Respondent of

Florida Administrative Code R ule 6B - 1.006(5 )(d), which prohibits

engaging in harassment or discriminatory conduct that creates a

hostile, intimidating, abusive, offensive, or oppressive

environment, and R ule 6B - 1.006(5)(e), which prohibits malicious

or intentionally false statements about a colleag ue. The

memorandum refers to Petitioner Policies 5.002, which prohibits

threatening, insulting, or dehumanizing gestures that are severe

or pervasive enough to create an intimidating, hostile, or

offensive educational environment, and 3.02(4), which requi res

each employee to treat all individuals with respect and to

create an environment of trust, respect, and nondiscrimination.

17 . Mr. Davis's memorandum concludes:

You are hereby direct ed to cease any and all

improper use of District Technology . . . .

Further you are directed to interact with

all School District Personnel in a

respectful and professional manner, as

required by [the] Policies and [rules]

described herein, including School Board

Policies 3.02 and 5.002 and 6B - 1.006, F.A.C.

Failure to abide by these directives will

lead to the appropriate disciplinary action

being taken against you. [Based upon the

principle of progressive discipline

contained in the CBA,] [a]s a provision of

the Settlement Agreement [has already

imposed] a ten day unp aid suspension[,]

[t]herefore the next likely step, should you

fail to adhere to this directive, may be

Termination of Employment.

It is understood that you have the right to

file complaints with the appropriate

authorities. However, you must adhere to

S chool Board Policies and Directives and

maintain professionalism. If you require

assistance in this regard, I suggest that

you direct communications regarding these

matters through your attorney.

18 . Meanwhile, o n July 1, 2011, Respondent had been

assig ned to teach at Spanish River High School. Shortly after

Respondent's arrival at Spanish River, William Latson was

assigned to the school to serve as the new principal. Almost

immediately after assuming his new responsibilities at

Respondent's new school , Mr. Latson began to receive odd emails

from Respondent , suggesting that Ms. Gero's suspension of

Respondent's access to School District email was short - lived.

With copies to various third parties , again in an apparent

attempt to bring pressure upon the main addressee, Respondent

sent to Mr. Latson and others confron tational emails telling the

addresse e s what t he y should and should not do. Mr. Latson was

nonplused because Respondent's emails addressed to him were

often unrelated to anything going on at t he time and were filled

with so many directives and complaints as to be

incomprehensible. Mr. Latson directed Respondent to discontinue

sending such emails, but Respondent ignored Mr. Latson's

directive.

19. To facilitate an investigation of an issue evi dently

unrelated to the present case, Mr. Latson, by letter dated

September 20, 2011, reassigned Respondent to her residence, with

pay, as of that date. The term of her reassignment was one day.

20. For reasons also apparently unrelated to the present

case, by letter dated October 10, 2011, the Chief of School

Police informed Respondent that, until further notice, she had

been reassigned to a temporary duty location at the

transportation department call center, effective the next day.

Respondent remain ed in this temporary assignment for the

remainder of the timeframe relevant to the present case.

21 . T he culmination of the email to Mr. Latson occur red on

October 19, 2011. Responsible for delivering checks to various

school employees, Mr. Latson sent emails to those employees who

had not yet received their checks, including Respondent,

inviting them to come by the office to pick them up or to

provide mailing addresses where he could mail them . In h er

response, Respondent supplied her mailing address, but launched

into a b ewildering set of vitriolic directives , awkward

references to herself in the third person, and head - turning

claims that, at their most coherent, seem to confus e Mr. Latson

with Ms. Wellings. The directives start with a demand not to

r efer to Respondent as "Mrs.,"

which is in fact my Mother's & Sisters in

Law marriage Titles; they did not apply to

work as Mrs. Prudente at PBCSD -- they always

lived in NY. . . . Please cease & desist

your Misrepresentations on my status &

respectfully rem ove your unsubstantiated,

defamatory opinions & hearsay from my

Records & confirm corrections to PB Post &

Sentinal [sic] Newspapers/TV & Radio Media

Broadcasts. . . . "Please Resolve & Replace

Misrepresentations with Ethical Corrections

Officially Stated & Filed in Dept of Admin

Hearing Judges McKinney & Meale's Decisions

& EEOC Federal Investigators, Specifically:

" PBCSD Petitions are inadequate & failed to

prove insu bordination of the teacher,

Ms. Prudente. Rescind the 10 day suspension

with 10 days Ba ckpay."

22 . Petitioner has not pleaded the Wellings email and

voicemail, which precede the start date of July 1, 2011, and the

Latson emails as grounds for dismissal in the present case. But

these communications nonetheless serve at least two purposes.

They establish that the emails described below were not isolated

instances and tend to prove that Respondent's use of School

District email was intentionally insubordinate and consciously

harassing.

23 . The emails that fall within the timeframe of July 1 2 ,

2011, through February 2012 concern Respondent's participation

in the School District's wellness program. The wellness program

offered eligible employees a discount of $50 from their monthly

premium for medi cal insurance during the 2011 - 12 school yea r,

provided they met certain criteria. The timeframe for

satisfying the eligibility criteria for this $500 benefit ran

from January 1 through August 1, 2011.

24 . A School District flyer announcing the wellness

program i dentifies three eligibility criteri a : a biometric

health screening, an online personal health assessment, and an

online tobacco user status form. Clearly stating that

interested employees must complete all three criteria by

August 1, 2011, the flyer warns that the program sponsor -- United

Health Care -- is unable to verify completion of these criteria

until the start of open enrollment in the fall of 2011.

25 . It is neither clear, nor particularly important, which

of these criteria that Respondent failed to submit on time.

According to on e of her emails, Respondent failed to timely

submit the health screening and personal health assessment.

Other emails suggest that Respondent failed to timely submit

only the health screening.

26 . Shortly before the midnight deadline, o n the evening

of J uly 31, Respondent tried to submit the needed form or forms

online, but, due to some problems, she was unable to do so. It

is possible that the error lie with Respondent 's computer or

with Petitioner's software program, but, again, this fact is not

partic ularly important. In any event, due to the failure of

Respondent to submit one or two of the required three forms,

Petitioner's benefits department declined to credit Respondent

with the $500 premium discount that she sought for the 2012 - 13

school year.

27 . When Respondent learned in the fall of 2011 that she

had no t qualified for the $500 benefit, she sent an email dated

November 9, 2011, to Ms. Howard. In the email, Respondent

claimed that she had experienced a "computer gl itch " when trying

to submit her paperwork online. Respondent's November 9 email

is characterized by a measured tone and the lack of any

inappropriate commentary. Unlike nearly all of Respondent's

other emails, copies are not provided to third parties. This

email, as well as all th at follow it, were sent using the School

District email system.

28 . On the next day, Ms. Howard replied by email to

Respondent that she was unable to make a n exception for

Respondent. Ms. Howard added, though, that Respondent could use

the late - filed hea lth assessment form toward her "2012 point

requirements."

29 . On November 11, 2011, Respondent sent an email in

reply to Ms. Howard. In a more confrontational tone than the

preceding email, Respondent's email starts:

How humiliating, UNflexible and U nfair to

NOT reciprocate PBCSC Professional Health

Benefits Courtesy, regardless of my 33 years

of A Classroom Teaching, my professional

flexible years of health insurance computer

glitches to be reciprocated with PBSC

UNflexible Health Benefits Blocked w ith On -

Going Unfair EEO ADA Labor Practices &

Penalties for Veteran A Teachers.

30 . The November 11 email concludes with a request to

cancel the $50 monthly "Penalties for the UNFAIR PBCSD 70 minute

g litch after midnight glitch OR cancel my Health Ins urance

Benefits so I can look for an ETHICAL NON - Discriminatory Health

Ins Provider." In closing, Respondent struck a more reasonable

tone, as she concluded : "I always appreciate your professional

courtesy and consideration as I have also provided A to PBCSD

since 1978."

31 . By email dated on the morning of November 14 to

Ms. Howard, a couple of union representatives, and Respondent's

attorney, Respondent essentially restated the requests contained

in the November 11 email. In an afternoon email on t he same

day , though, Respondent's tone became more strident and more

confusing, as she addressed the "computer glitch" that

supposedly prevented her timely filing of the wellness program

form or forms and another issue involving benefits. This email

was a lmost entirely in capital letters and boldface.

32 . By email dated November 17 to Ms. Gero with copies to,

among others, Respondent's attorney, Respondent addressed

several issues. As to the wellness program, the email states:

Diane Howard . . . willfull y neglected my

requests to correct the Google Glitched Date

& blocked me from UHC Benefits & August 1st

50 Question monthly $50 Smoking Survey

discount due to another frustrating Google

Glitch. Fri., Nov 18 will be my final

request for all parties to make corrections

for Compensation w/o ADA Age discrimmination

[sic].

33 . Not hearing from Ms. Howard, Respondent sent several

more emails to various recipi ents, such as her attorney,

Ms. Gero, a nd, less frequently, Ms. Howard. These emails

complain ed about the "computer glitch" and one or two other

benefits issues that she had raised . Interspersed among these

emails are occasional references to Respondent's EEOC case and

EEOC complaints that she has filed over the ye ars . A couple of

emails refer to a Schoo l District police investigator's

"promise" to contact Respondent to discuss her eligibility for

the wellness program's monthly discount.

34 . The police investigator became involved when he was

summoned in mid - November to the benefits office where Responde nt

was loudly demanding that she be allowed to participate in the

wellness program. To mollify Respondent, the investigator , who

was the same investigator who had handled Respondent's case in

Prudente I, told Respondent that he would help her set up an

ap pointment for the following week. Respondent furnished the

investigator a copy of some paperwork that she said supported

her claim of unfair treatment in terms of her employee benefits.

35 . Up to this point, the tone of Respondent's post -

November 10 em ails betrays more confusion than anger. It is

unclear why she thought that a police investigator, whose

responsibilities obviously do not include employee benefits,

wou ld help her secure the $500 premium discount , but it is

perfectly clear that Respondent believed that he would do so.

36 . On November 22, 2011, Ms. Howard replied to several

emails that Respondent had sent her, all in November.

Ms. Howard's email states that she had previously told

Respondent that she could not make an exception for her, but

Respondent "continued to send these confusing, rambling,

unprofessional and unethical emails to me and my staff, while

copying [the teachers' union] and many other people."

Ms. Howard's email states that Respondent was "highly

disruptive" when she ap peared in the benef its office on November

18 and concludes:

Please stop sending these emails as they are

offensive, threatening, harassing and

insulting. Also do not come back into this

office as you have been here 3 times already

and we have repeated our response three

times. . . .

To be very clear, our response is:

If you have medical bills that are not being

paid by our health carrier, United, you need

to fax these to our onsite United Healthcare

representation [name and phone number

omitted].

The a nnual enrollment period ended Nov 18,

2011. You were able to go online anytime

during a three week period and make your

benefit selections for 2012.

Our position is that you did not meet the

requirements in ord er to comply with the

[wellness - program disc ount .] Therefore you

are not eligible for the premium discount in

2012. You may complete the requirements in

2012, by July 31, 2012, and then you will be

eligible for the discount in 2013. The

online health assessment that you completed

on August 2, 201 1, will apply towards the

fulfillment of the requirements for the 2013

premium discount.

To restate, do not continue to call, visit

or send emails on these same issues. I find

them offensive, insulting and harassing.

37 . By reply email later the same d ay to Ms. Howard, with

a copy to Ms. Gero, Respondent stated:

Thank you for re - confirming your offensive

opinions, false & abusive allegations

against me as your choice to make

threatening & confusing replies which have

continued to frustrate me again toda y. I

repeatedly requested your support assistance

for appropriate annual adjustments [to

Respondent's other benefits issue.] I never

requested your humiliating misrepresented

emails & phone call replies to me whenever I

request sincere support assistance .

I am constantly intimidated by your PBCSD

Admin' Depts insulting, and inappropriate

threatening letters, emails & phonecall

responses 'including termination' because I

have filed requests your Sworn Oath to

Ethcal [sic] EEO HR Compliance. Your false

al legations and misrepresentations are

demonstrably contradictory to my A

Appreciated, Awarded & Honored Professional

33 years of Classroom Excellence, which I am

equally deserving of your reciprocal

Ethical, EEO ER HR ADA & Ins Benefits

Support.

Your wron gful, rude, retalliative [sic]

letters, emails & phonecall responses with

Misrepresented false allegations for my

requesting your consideration, support &

advise [sic] is an ineffective and

inflammatory excuse for your disgraceful

Misconduct.

38 . The nex t day, someone, probably Ms. Gero, forwarded to

Respondent information about Petitioner's employee assistance

program (EAP). Nine days later, Respondent replied by email to

Ms. Gero, Mr. Howard, Ms. Wellings, and Mr. Davis, thanking them

for sending her t he EAP information, but adding:

By the Way, Please help me to appropriate

reinstate and reduce my documented 2009 -

2010 - 2011 EAP Diagnosed Manic Stress which

was demonstrably induced & worsened by PBCSD

workplace & District office Administrators

whom have G oogle - Glitched or denyed [sic]

and/or blocked me from continuing my Highly

Qualified A Merit Teaching career with

Equal Employment HR ER Opportunity,

Voluntary transfer positions/applications,

ADA Accommodations , and most importantly to

reimburse/reinstat e my earned & deserved

United Health Care Medical, Dental & Visio n

Benefits without the $50 Smok er's Penalty in

the New People Soft Google Glitch (as I have

appropriately earned and updated annually

over the last 33 years in PBCSD).

Please reply & mail my DOAH Judge

Recommended Order [sic] to Rescind the 10

days Nov 2010 Suspension with 10 days

Backpaycheck, since My case was dismissed &

Clos ed without Prejudice because PBCSD

Failed to prove the Teacher's

Insubordination (Please remove your

defamatory Misr epresentations &

unsubstantiated False Allegatio

39 . On December 2 , the interim executive director of the

union, Tony Hernandez, informed local union representatives that

teachers would need to sign new contracts by December 16. On

December 5, Re spondent sent an email to Mr. Hernandez about

signing a new contract and addressing some aspect of her

employee - benefits claims, possibly the appeal that is discussed

below . Later the same day , Melinda Wong, Petitioner's Director

of Human Resources Custom er Relations , sent an email to

Respondent advising her that she was under a still - valid

continuing contract, which she had signed in January 1982, so

she would not be receiving a contract that year. Ms. Wong added

that she did not have any knowledge about the benefits appeal,

so she could not respond to that part of Respondent's email.

40 . O n December 6, Respondent sent a reply email to

Ms. Wong, with copies to Ms. Howard, Ms. G ero, and

Mr. Hernandez, thanking Ms. Wong for her "prompt & professional"

repl y. T his email states, "fyi," that the School District's

imposition of

unfair, excessive $50 monthly charges &

willful complacency to make correct ions on

hundreds of New Ins urance Surveys/Non -

Smokers -- regardless of repeated requests &

reports to UHC [Unit ed Healthcare]/Employee

Benefits Directors & Classroom Teachers

Association Offices. Watch TV News

Investigations coverage today on . . .

Channel 5.

I informed UHC & Risk Mgt that our PBCSD

Tech Support IT upstairs (speci fically, a

few of our former JI L H S Tech Academy

students) can fairly resolve PBCSD UHC Risk

Mgt Survey Gli8tches in less than 10

minutes --

Whomever [sic] does not make professional

efforts to offer sensible Employee Solutions

is part of the on - going problems.

41 . In early December, a n automated email notified School

District employees that the benefits enrollment period had ended

and they could view their choices on line. In response, o n

December 7, Respondent emailed Ms. Howard, a staffperson i n

Ms. Howard's department, Ms. Gero and Ms. Wong asking for their

help because the deadline for appeals was December 9, and she

had to address the "computer glitch" that had prevented her from

receiving the $500 premium discount and another employee -

benefits problem . This email thanks the recip ients for their

anticipated assistance. When no one responded, Respondent re -

sent this email on December 8, adding her attorney to the

recipients.

42 . On December 22, Ms. Howard sent an email to Respondent

and apparently other similarly situated employee s :

Your appeal for the Wellness rewards credit

was not able to be granted. We are sorry

the decision could not be more favorable.

You will receive information in the mail in

January about the requirements to be

completed in 2012 for the discount to be

ap plied in 2013.

We will have [benefits] representatives

available to sit with employees at their

work sites from Jan 24 to Feb 18, 2012.

They can assist you in navigating the myuhc

site so that you will be able to

successfully complete the requirements in

2012 for the discount in 2013. Please be

sure to follow the instructions in the home

mailing you will receive in January if you

would like an appointment with one of thes

[sic] representatives.

Also we communicate benefits information

throughout the yea r by emails from "Benefits

Buzz" so be sure to look for them and read

them.

Again we are sorry that our decision could

not be more favorable.

43 . To this email, Res pondent responded, the same day, by

email:

As we all know, For 33 years I have promptly

a nd professionally achieved A Merited

School Awards and submitted by Lab Corp

Bloodwork and Survey for Wellness Rewards

again with [my attorney] from last Nov 2010

through December 2011 and re - submitted again

from July 15 through August 1, 2011 on

Google G litched People Soft & UHC Self

Service WebSites, [sic] However, PBCSD

Benefits/Risk Management/UHC willfully

continues to BLOCK & GLITCH & DENY my

Payroll Deductions and Out of Pocket

Expenses & Appeals in order to receive my

Professional Health Benefits o ver this past

year Nov 2010 - Dec 2011.

Please APPROPRIATELY RE - SUBMI T and CREDIT my

HEALTH CARE WITH OUT the PBCSD $50 MONTHLY

PENALTY SCAM to United Health Care and Risk

Management Benefits Directors, which UI have

also reported to Elected School Board

Off icials, DOJ/EEOC Federal Investigator and

[the website of a labor lawyer].

( Respondent's reference to a "scam" may be connected to a

warning email that Respondent and other School District

employees had received concerning an online scam supposedly from

t he "College Board" -- a warning that prompted a brief response by

Respondent suggesting that the School District IT person add to

the list of scams the "computer glitch" scam. )

44 . On January 10, 2012, Respondent sent another email to

Ms. Wellings, Ms. Gero , Ms. Howard, and her attorney demanding

the $50 monthly discount. Although the entire email is

underlined and possibly in boldface, it is not inappropriate or

confrontational in tone. The addition of Ms. Wellings appears

to be due to Respondent's statem ent that she will "visit Payroll

Tues or Wed. again in order to follow up on your mandatory

HR/EEO & Insurance Compliance as you have been advised by the

DOJ EEOC Federal Investigator . . . Letter to Deneen Wellings in

July 2011."

45 . On January 11, Respo ndent sent an email to an EEOC

investigator, Ms. Gero, Ms. Wellings, Ms. Wong, Mr. Hernandez,

and her attorney. The email starts:

I did NOT 'miss the deadline.' As you know,

PBCSD GLITCHED and ACCESS BLOCKED for

hundreds of Employees, including me, in

Sp ring & Summer months of 2011 due to their

District Technology System switching

overhaul of a "NEW UPDATED VERSION of

Google" which is an understandable GLITCH

that WE ALL KNOW CAN BE APPROPRIATELY

ADJUSTED in the School District Technology

Offices.

PLEASE RE - SUB MIT my Reasonable Request for

Amicable Adjustment to REMOVE the capricious

monthly $50 penalties and/or FILE ADDITIONAL

EEOC, EEO HR GRIEVANCE Case CLAIMS, with

[union attorney] who diligently assisted me

in my Civil Rights to to [sic] retrieve and

reinstate my PBCSD Benefits BLOCKED & DENIED

ACCESS for my Medical, Vision, St. Mary's

Hospital Breast Cancer Followup Appts &

Dental BENEFITS REIMBURSEMENTS

REINSTATEMENTS in April thru October 2011

and in December - January 2012 for their

willful, wrongful Complacency, Non -

Compliance & now OVERCHARGING me monthly $50

penalty.

Remember, I filed and completed by LabCorp

Blood Labs & SURVEYS after my SEVERAL MONTHS

of my Risk Mgt UHC BENEFITS were ACCESS

BLOCKED and Oct - December my Professional

Development TD E Inservice Sessions

Opportunities to Re - Certification are also

willfully BLOCKED & Denied by Admin

Welli ngs, Latson & Gero.

PLEASE RE - SUBMIT to REMOVE Discriminator y,

Retalliative [sic] Penalties & Bloc ks or

FILE ADDITIONAL GRIEVANCE COMPLAINT in my

EEO HR Case against PBCSD for Professional

Career Discrimmination [sic] Damages &

Losses.

46 . Later the same day, a union representative replied to

Respondent's email by saying that she and Mr. Hernandez

"appealed to the district on your behalf regarding the August 1,

2011 Health Survey timeline that you missed. Unfortunately, we

have been unsuccessful in getting them to grant credit for

completing the survey." The union representative copied

Respondent's attorney, so he would be aware of their efforts.

47 . On January 12, Respondent sent an email to Ms. Howard

without copies to anyone else. The email states:

How consistently stressful that since I've

re - submitted 2008 EEO ADA HR Concerns &

Ethics Complaints that none of the infamous

"PBC School Board Admin Specialists" have

ever been capable of favorably following any

of the lawfully sensible ethical CTA FEA

Contract Dr's & DOAH Judge's Recommendations

nor Conflict Resolutions for any of my

respectfully re - submitted Claims to EEO ADA

HR & Risk Mgt Ins Benef its Legal Dep t

Appeals, except by wrongfully writing false

reports & filing their threatening letter

containing false, defamatory allegations for

me to drop my EEOC Claims or I will be

suspended and/or terminated for

insubordination.

Thankfully, the DOJ/E EOC has been lawfully

capable of re - submitting Investigations for

the infamous PBCSD Administrative

Specialists in order to clear up their

consistent, Collaborative Complacency & Non -

Compliance.

I have learned to "Never give up & never

give in" (Vince Lom bardi) . . . As Always,

Tru t h , Justice & Perseverance Prevails from

now on 2012.

48 . On January 17, Ms. Howard emailed Ms. Gero. This

email states:

I wrote to [Respondent] on Nov 22 via email

asking her to stop sending these harassing

emails. Since the n she is continuing to

send me these emails. In addition, they are

rambling and confusing.

49 . By letter dated February 21, 2012, Mr. Davis suspended

Respondent's access to School District email for misuse of

School District technology. The letter note s that he had warned

her to discontinue improper use of School District email.

50 . In addition to the above - noted Latson and Wellings

emails, Respondent has misused School District email in the

past . Respondent had received and defied several warning

m emoranda from two past principals not to use School District

email to harass coworkers.

51 . In the more recent of these situations , at John I.

Leonard Community High School, Respondent used a code to email

all school employees when she did not have perm ission to

communicate by these means to all school employees , Respondent

addressed an email to a female coworker named "Continent"

as "Cuntinent," and Respondent sent the above - mentioned emails

ridiculing president ial candidate .

52 . Respondent's emails in volving the $500 premium

discount constitute harassment and gross insubordination.

53 . Respondent's emails constitute harassment due to their

large number over a relatively brief period of time , their

confrontation al tone, and the relatively modest bene fit

involved. Ms. Howard did not ignore Respondent. Upon receipt

of Respondent's first email, Ms. Howard immediately contacted

the appropriate person at U nited Health Care . The United Health

Care representative researched the matter with the company's

i nformation management personnel responsible for online filings

and later assured Ms. Howard that nothing indicated a problem at

the company's end of the attempted transaction. Unfortunately,

Ms. Howard did not communicate these efforts to Respondent, so a

few more emails were justifiable from Respondent's perspective.

54. Although Ms. Howard may not have told Respondent about

the appeal process , it seems, from Ms. Wong's response to one of

Respondent's emails, that Respondent was aware of this process .

Approximately 100 other employees had complained about problems

with online filing. By mid - December, as the new plan year was

about to start, Ms. Howard was forced to cobble together an

appeal process for the employees. Ms. Howard and the teachers'

unio n entered into a memorandum of understanding under which

they jointly examined, employee - by - employee, all of the online

registration files and a pplied uniform standards to each

redetermination.

55. Respondent must be permitted some email communication

w ith Ms. Howard prior to disposition of her appeal on December

22. Some employees won their appeals, so it may be inferred

that the online filing system was flawed. But, even prior to

December 22, Respondent crossed the line between pressing her

rights an d harassing Ms. Howard. These pre - December 22 emails

include baseless claims of discrimination and wilful neglect of

duty by Ms. Howard and irresponsible claims that Ms. Howard has

abused, thre atened, and lied to Respondent. Absolutely nothing

in the rec ord suggests that these claims by Respondent are true,

or, more importantly, that Respondent had any reason whatsoever

to believe that they were true, except for the simple fact that

she had been denied a $500 benefit due to a computer problem for

which, i n the final analysis, Respondent had no more reason to

assign responsibility to United Health Care or Petitioner than

she had to assign to herself.

56. Additionally, the four emails that Respondent sent to

Ms. Howard after the December 22 email announci ng the

unfavorable outcome of the appeal also compel a finding of

harassment. Petitioner had made its final decision concerning

eligibility for this $500 benefit. Nothing whatsoever can be

gained from further emails to Ms. Howard. At this point,

Respond ent's only option was litigation of some form. Although

the tone of these post - December 22 emails is relatively muted ,

the ir very existence constitutes nothing more than an attempt to

hector and harangue Ms. Howard.

57. I n sending these harassing email s to Ms. Howard,

Respondent committed gross insubordination. Mr. Davis had

warned Respondent that further misuse of School District

technology to abuse School District employees could result in

Respondent's termination. Mr. Davis's directive was reasonab le

in nature , and Mr. Davis had proper authority over Respondent to

issue the directive. By harassing Ms. Howard with the above -

described emails in November, December, and January, Respondent

exhibited a constant or continuing refusal to obey Mr. Davis's

directive.

58. In sending t hese harassing emails to Ms. Howard,

Respondent committed misconduct in office. Respondent's emails

unreasonably interfered with Ms. Howard's performance of her

professional or work responsibilities and created a hostile,

abusi ve, and offens ive environment. Given Respondent's history

of abusing School District email repeatedly -- despite directives

to stop -- her harassing emails to Ms. Howard were so serious as

to impair Respondent's effectiveness in the school system.

Harboring grudges for actual or perceived slights, Respondent

has displayed, repeatedly, a torch - the - earth approach to

emailing in which, with copies to various third parties and

vague threats to go to the media or file another EEOC complaint,

she has cast herself a s a force of disruption to the educational

process that is the mission of the School District and its

instructional, noninstructional, and administrative employees

and agents. As such, Respondent's effectiveness in the school

system is null.

59. As noted in the Conclusions of Law, the definition of

"gross insubordination" requires an "intentional" refusal to

obey a directive. Implied in the harassment prohibited by the

Principles of Professional Conduct, also noted in the

Conclusions of Law, may be some notion of conscious, if not

intentional, conduct.

60. The record contains hints of some mental or emotional

impairment suffered by Respondent. Testifying that she felt an

urge to nurture Respondent, Ms. Gero ordered that Respondent

enter the EAP, which s he attended from September 28, 2011 to

January 3, 2012, at which time she "successfully" completed the

program. But Respondent sent three of the four post - appeal

emails to Ms. Howard in the te n days after completing the EAP.

Because Respondent did not te stify to any impairment at the

hearing, the Administrative Law Judge is left to infer that the

therapy may have addressed a different issue; if addressing a

relevant issue, the therapy may not have provided much relief;

or, of course, after the therapy, Re spondent consciously chose

to continue to harass Ms. Howard .

61. Clearly, Respondent's thinking is, at times,

disordered. But she has repeatedly abused School District email

in a fashion similar to the present case , and she has repeatedly

been ordered to stop . Respondent's thinking does not appear to

have been so disordered to have prevent ed her from understanding

that, if she continued to harass coworkers by way of School

District email, she could be fired, as Mr. Davis clearly warned.

For a $500 benef it, Respondent took this risk. She is not

dismissed for a rude email or two. She is dismissed because,

for months, she subjected Ms. Howard to a barrage of emails that

were not intended to communicate, except in their number and

hostility. Along the way , several persons, including the police

investigator, Ms. Gero, and Ms. Howard, gently tried to direct

Respondent from the disastrous path that she was on, but she was

grimly determined to pursue this matter to its obvious

conclusion: win the $500 benefit or be fired trying.

62. CBA Article II, Section M.7 provides:

Except in cases which clearly constitute a

real and immediate danger to the District or

the actions/inactions of the employee

constitute such clearly flagrant and

purposeful violations of r easonable school

rules and regulations, progressive

discipline shall be administered as follows:

a. Verbal Reprimand With A Written

Notation -- Such written notation shall not be

placed in the employee's personnel file and

shall not be used to the further detriment

of the employee after twelve (12) months of

the action/inaction of the employee which

led to the notation.

b. Written Reprimand -- A written reprimand

may be issued to an employee when

appropriate in keeping with the provisions

of this Section. Such written reprimand

shall be dated and signed by the giver and

the receiver of the reprimand and shall be

filed in the affected employee's personnel

file in keeping with the provisions of

Article II, Section B of this Agreement.

c. Suspension Without Pay -- A suspension

without pay may be issued to an employee,

when appropriate, in keeping with the

provisions of this Section, including just

cause and applicable laws. The length of

the suspension also shall be determined by

just cause as set forth in thi s Section.

The notice and specifics of the suspension

without pay shall be placed in writing,

dated and signed by the giver and receiver

of the suspension. . . .

d. Dismissal -- An employee may be dismissed

(employment contract terminated or non -

renewed) when appropriate in keeping with

provisions of this Section, including just

cause and applicable laws.

CONCLUSIONS OF LAW

63 . DOAH has jurisdiction over the subject matter.

§ 120.57(1), Fla. Stat.

64 . An instructional employee under a continuing contr act

may be suspended or dismissed for a limited number of specified

reasons:

Any member of the . . . instructional staff,

. . . who is under continuing contract may

be suspended or dismissed at any time during

the school year; however, the charges

agains t him or her must be based on

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, drunkenness, or being

convicted or found guilty of, or entering a

plea of guilty to, regardless of

adjudication of guilt, any crim e involving

moral turpitude, as these terms are defined

by rule of the State Board of Education.

§ 1012.33(4)(c). Compare § 1012.33(6)(a) (requiring "just

cause" for suspension or dismissal of instructional employee not

described in § 1012.33(4)).

65 . A s indicated by Ms. Wong in the Findings of Fact,

Respondent remains sub ject to her continuing contract. However,

the CBA "may operate within the penumbra of those statutes and

rules [governing continuing contracts]." Sch ool B oard of

Seminole C ou nty v. Mo rgan , 582 So. 2d 787, 788 - 89 (Fla. 5th DCA

1991).

66 . Because the outcome remains the same, even if the more

rigorous standard of proof from the CBA is applied with the more

limited set of grounds for suspension or termination from

section 1012.33(4)(c) , this Recommended Order applies the clear -

and - convincing standard of proof to the limited grounds for

suspension or dismissal set forth in section 1012.33(4)(c).

67 . As it existed during the relevant timeframe, Florida

Administrative Code Rule 6B - 4.009(4 ) defines "gross

insubordination" as "a constant or continuing intentional

refusal to obey a direct order, reasonable in nature, and given

by and with proper authority."

68 . As it existed during the relevant timeframe, Rule

6B - 4.009(3) defines "miscondu ct in office" as a violation of

"the Principles of Professional Conduct for the Education

Profession . . . as adopted in Rule 6B - 1.006 . . ., which is so

serious as to impair the individual's effectiveness in the

school system." As it existed during the r elevant timeframe,

Rule 6B - 1.006(5)(d) provides that an educator

Shall not engage in harassment . . . which

unreasonably interferes with an individual's

performance of professional or work

responsibilities or with the orderly

processes of education or whic h creates a

hostile, intimidating, abusive, offensive,

or oppressive environment . . ..

69 . Petitioner has proved by clear and convincing evidence

that Respondent has committed gross insubordination and

misconduct in office within the relevant timeframe.

70 . As Respondent concedes in her proposed recommended

order, the prior discipline that Respondent has received for

past abuses of School District email to harass coworkers

constitutes the written reprimand described in the CBA. But

Respondent attempts to distinguish this prior discipline from

the ten - day suspension in the Settlement Agreement on the ground

that she admitted to guilt in the former, but not the latter.

( Respondent Proposed Recommended Order, paragraphs 61 - 66. )

71. T he key is that Petiti oner has previously imposed upon

Respondent a ten - day suspension without pay , not whether she

admitted to any guilt in receiving this discipline. Compare

Anusavice v. Bd . of Registration in Dentistry , 451 Mass. 786,

796 - 98, 889 N.E. 2d 953, 961 - 93 (2008); Marek v . Bd . of

Podiatric Medicine , 16 Cal. App. 4th 1089, 20 Ca. Rptr. 2d 474

(Cal.App.2d 199 3). T he ten - day suspension without pay was for

the abuse of School District email in harassing coworkers, and

the Settlement Agreement does not remove this disc ipline from

consideration under the CBA progressive discipline provisions .

The important fact is that Respondent had every opportunity to

l earn from this prior discipline, but failed to do so . As

Mr. Davis warned her in his July 13 letter , the next logic al

step was and is dismissal.

RECOMMENDATION

It is

RECOMMENDED that the School Board enter a Final Order

dismissing Respondent from employment, effective as of the first

day of the 15 - day suspension proposed in the April 16, 2012,

notice from the Superi ntendent.

DONE AND ENTERED this 7th day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Ta llahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of December, 2012 .

COPIES FURNISHED :

Shawntoyia Bernard, Esquire

Palm Beach Coun ty School Board

Office of the General Counsel

Suite C323

3300 Forest Hill Boulevard

West Palm Beach, Florida 33406

Jeffrey S. Sirmons, Esquire

Johnson and Sirmons, LLP

Suite 309

510 Vonderburg Drive

Brandon, Florida 33511

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

E. Wayne Gent, Superintendent

Palm Beach County School Board

Office of the General Counsel

Suite C3 16

33 40 Forest Hill Boulevard

West Palm Beach, Florida 33406

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.