12-001557TTS Manatee County School Board vs. Yvonne B. Eisenberg Status: Closed Recommended Order on Tuesday, January 29, 2013.

Summary: Teacher yelled at and used profanity to assistant principal after directive regarding language, therefore suspension is appropriate.

Case No. 12-1557TTS

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

YVONNE B. EISENBERG, )

)

Respondent. )

)

)

Pursuant to notice, this case was heard in Bradenton,

Florida, on October 11, 2012, before J. D. Parrish, an

Administrative Law with the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 33602

For Respondent: Melissa C. Mihok, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33605

STATEMENT OF THE ISSUES

Whether Respondent, Yvonne B. Eisenberg (Respondent),

committed the violations alleged in the Amended Administrative

Complaint filed on September 27, 2012, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

This administrative action is a disciplinary case against

an employee of Petitioner, Manatee County School Board (Board or

Petitioner). The Board’s Superintendent of Schools recommended

that Respondent be suspended without pay for three days based

upon alleged conduct that occurred at Southeast High School.

Respondent timely challenged the proposed action and the matter

was forwarded to DOAH for formal proceedings on April 27, 2012.

At the hearing, Petitioner presented the testimony of Shane

Hall (Mr. Hall), Jane Toole (Ms. Toole), and Debra Horne.

Petitioner’s Exhibits 2A, 2E, and 2F were admitted into

evidence. Respondent testified in her own behalf and presented

the deposition testimony of Frederick Leonard Johnson.

Petitioner’s objection as to the relevance of Mr. Johnson’s

testimony is overruled.

The Transcript of the proceedings was filed with DOAH on

October 30, 2012. An unopposed request to extend the time to

file proposed orders was granted, and the parties were given

leave until December 17, 2012, to file their proposals. Both

parties timely filed proposed recommended orders that have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a duly-constituted entity charged with

the responsibility and authority to operate, control, and

supervise the public schools within the Manatee County Public

School District (School District). As such, it has the

authority to regulate all personnel matters for the School

District. See § 1001.32, Fla. Stat. (2012).

2. Dr. Timothy McGonegal is the superintendent of the

public schools for the School District. Dr. McGonegal has the

authority to recommend suspension and/or termination of

employees for alleged misconduct.

3. At all times material to the allegations of this case,

Yvonne B. Eisenberg was an employee of the School District

assigned to teach profoundly mentally handicapped (PMH) students

at Southeast High School.

4. At all times material to the allegations of this case,

Mr. Hall was an assistant principal at Southeast High School.

Mr. Hall’s responsibilities included overseeing the exceptional

student education (ESE) program at Southeast High School.

Respondent’s PMH class fell within the purview of the ESE

program. Ms. Toole, an ESE specialist at Southeast High School

who is the ESE department chairperson, directly supervised

Respondent’s class.

5. PMH students require constant supervision and care.

Respondent was assigned a full-time aide to assist her with the

class. At times Respondent was assigned a second aide to help

with students. Students in Respondent’s class were limited

intellectually and physically. All required assistance with

feeding, diaper changes, and mobility.

6. It is undisputed that the challenges of managing

Respondent’s classroom were daunting. No one disputes that

Respondent’s daily work required physical and emotional

strength. Cooperation between Respondent and others assigned to

work in her classroom was important in order for the school day

to run smoothly.

7. Students in Respondent’s PMH class ranged in age and

size. The eldest student could be 22 years old. It is

undisputed that a 22-year-old might prove to be a physical

burden for mobility and diaper changes.

8. Respondent has received satisfactory performance

evaluations in the past. Respondent is effective as an ESE

teacher. Nevertheless, on November 12, 2010, Mr. Hall conducted

a conference with Respondent to present, in writing, specific

expectations for Respondent’s future job performance. Mr. Hall

advised Respondent to follow the Code of Ethics and to speak

civilly and professionally to staff and co-workers.

9. On June 10, 2011, Mr. Hall gave Respondent a written

reprimand for her actions during the 2010-2011 school year.

More specifically, Mr. Hall cited Respondent’s failure to

correct her unprofessional conduct toward staff and co-workers,

and her willful neglect of duties. Among other items not

pertinent here, Respondent was directed to complete sensitivity

training and to promote a positive atmosphere in her classroom.

Respondent denied the underlying facts that gave rise to the

reprimand, but admitted to “yelling” at her aide. Speaking

disrespectfully and loudly toward others was a chief component

of Mr. Hall’s concern regarding Respondent’s behavior.

10. On September 20, 2011, Respondent approached Mr. Hall

at approximately 8:00 a.m. and asked to talk to him. Mr. Hall

had a busy morning agenda but told Respondent he would talk to

her later in the day. Respondent accepted the deferment of the

talk and did not suggest an emergency situation that required

more immediate attention.

11. Later in the day, at approximately 10:30 a.m.,

Respondent returned to Mr. Hall’s office and asked for a

meeting. In the interim between the first request for a talk

and the second request, Respondent had sent Mr. Hall e-mails

outlining a need for supplies, a request for input regarding an

aide’s condition (whether the aide had been cleared to help lift

students), and a need for gloves.

12. Mr. Hall advised Respondent that she was not

responsible for buying gloves and soap, and that those types of

supplies for her students would be provided by the School

District.

13. Respondent claimed that a second aide was not needed

in her classroom because she felt the two aides assigned to the

PMH class were “against her.”

14. Finally, Respondent asked about the status of any

physical restrictions for a specifically named aide,

Ms. Mitchell. Mr. Hall assured Respondent that the aide could

lift as required by the job and had no restrictions.

15. The meeting ended with Mr. Hall presuming he had

addressed Respondent’s concerns. Mr. Hall also mentioned that

Mr. Johnson, a substitute teacher at Southeast High School,

could be made available to help lift Respondent’s students when

needed.

16. At approximately 1:15 p.m. the same day (September 20,

2011), Respondent approached Mr. Hall’s office with her fists

clenched, her face red with anger, and yelled, “Am I going to

get any help in here today?” Mr. Hall was surprised by the loud

yelling and was taken aback for a moment. Since he did not

understand her request he asked Respondent for a clarification.

17. After a brief exchange, it became apparent to Mr. Hall

that Respondent was upset because her students had not been

changed all day and were sitting in dirty diapers. Mr. Hall

maintained that Respondent had not clearly asked for assistance

in changing the students during the two exchanges they had had

during the school day. At that point, Respondent exited

Mr. Hall’s office and slammed the door.

18. Mr. Hall then telephoned an ESE classroom near

Respondent’s room and directed Mr. Hubbard to report to

Respondent’s classroom to assist her with changing the students.

19. As Mr. Hall was completing that call, Respondent

reappeared at his office and Mr. Hall asked her to step inside.

At that time, Mr. Hall told Respondent she could not communicate

with him as she had, that she must remain respectful and

professional. Respondent then advised Mr. Hall that she was

“pissed off.”

20. Mr. Hall directed Respondent to return to his office

at the end of the school day, and that Mr. Hubbard was in her

classroom waiting to assist her with the diaper changes.

21. Subsequently, Respondent told Ms. Toole that she

yelled at Mr. Hall. Respondent maintains that the frustrations

of her job and the events of the day supported her behavior.

Moreover, Respondent asserts that her passion for the care of

her students led to the emotional outburst. Respondent did not

return to Mr. Hall’s office at the end of the school day.

22. Mr. Hall reported the matter to his principal and to

the District’s Office of Professional Standards. The

Superintendent of schools recommended that Respondent receive a

three-day suspension without pay for her conduct toward Mr. Hall

and her failure to correct behaviors that had previously been

identified. The requirement that Respondent show respect toward

co-workers was not a new theme. Had Respondent exhibited

patience and a professional demeanor, clearly articulated her

need for assistance in lifting her students for diaper changes,

and sought help in a timely manner (during any portion of the

school day prior to 1:15 p.m.), she could have easily avoided

disciplinary action. As soon as Mr. Hall was made aware of her

need for lifting assistance, he directed additional help to

Respondent’s classroom. Curiously, Respondent did not ask

Ms. Toole, her ESE supervisor, for help.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 120.569 and 120.57(1),

Fla. Stat. (2012).

24. Petitioner bears the burden of proof in this cause to

establish, by a preponderance of the evidence, that Respondent

committed the violations alleged. See McNeil v. Pinellas Cnty

Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996).

25. Section 1012.33, Florida Statutes, authorizes school

districts to take disciplinary action against its employees

based upon “just cause.”

26. In this case, Petitioner’s procedures governing

employment with the School District, Policy 6.11(1), provides:

(1) Suspension or Termination of Employees:

Any employee of the School Board may be

temporarily suspended, with or without pay,

or permanently terminated from employment,

for just cause including, but not limited

to, immorality, misconduct in office,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude,

violation of Policies and Procedures Manual

of the School District of Manatee County,

violation of any applicable Florida statute,

violation of the Code of Ethics and the

Principles of Professional Conduct of the

Education Profession in Florida.

27. Petitioner’s Amended Administrative Complaint alleged

Respondent’s actions constituted three violations ( see Amended

Administrative Complaint, paragraphs 15, 16, and 17): misconduct

in office, gross insubordination, and failure to maintain the

respect and confidence of one’s colleagues, of students, of

parents, and of other members of the community by failing to

sustain the highest degree of ethical conduct.

28. The first alleged violation, misconduct in office, is

defined by Florida Administrative Code Rule 6A-5.056(2), as

follows:

(2) “Misconduct in Office” means one or

more of the following:

(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 Conduct 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 or his or her colleagues’ ability to

effectively perform duties. [Emphasis

Added.]

28. The Code of Ethics of the Education Profession in

Florida provides:

6A-10.080 Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator’s primary professional

concern will always be for the student and

for the development of the student’s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one’s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

29. The Principles of Professional Conduct for the

Education Profession in Florida provides, in pertinent part:

6A-10.081 Principles of Professional

Conduct for the Education Profession in

Florida.

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

* * *

(5) Obligation to the profession of

education requires that the individual:

* * *

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual’s performance

of professional or work responsibilities or

with the orderly 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.

30. Florida Administrative Code Rule 6A-5.056(4) defines

“gross insubordination” as:

(4) “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 failure in the

performance of the required duties.

31. With regard to the charge of misconduct in office, it

is determined that Respondent’s behavior on September 20, 2011,

constitutes a violation of the law. Respondent yelled angrily

at her supervisor and thereby created a harassing and hostile

environment. Respondent had previously been directed to refrain

from loud, menacing tones with co-workers. Mr. Hall’s

memorandum of November 12, 2010, specifically identified and

prohibited yelling or using profanity. Respondent was

specifically told not to use profanity. Respondent’s assertion

that she was “pissed off” in a loud, inappropriate tone does not

meet the professional standards contemplated by the governing

rules. Respondent’s slamming Mr. Hall’s door demonstrates

disrespect and a gross indifference to the work environment.

32. With regard to the charge of gross insubordination, it

is determined that Respondent’s behavior on September 20, 2011,

constitutes a violation of the law. Mr. Hall’s directive to

Respondent regarding her treatment of co-workers was reasonable

in nature, and given by and with proper authority. Yelling at

one’s superior after being told not to yell and use profanity is

unacceptable. Had Respondent presented her request for help in

a professional manner, the students’ needs would have been

easily addressed. Misplaced passion or outrage because the

students had not been changed does not excuse unprofessional

conduct.

33. With regard to the charge of failure to sustain the

highest degree of ethical conduct, it is determined that

Petitioner failed to meet its burden in this regard. Any

technical violation regarding the standard of educators’ conduct

has previously been identified and fully addressed as misconduct

in office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent be suspended for three

days without pay.

DONE AND ENTERED this 29th day of January, 2013, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January, 2013.

COPIES FURNISHED :

Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez

and Hearing P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 33602

Melissa C. Mihok, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Dr. David Gayler, Interim Superintendent

Manatee County School Board

215 Manatee Avenue West

Bradenton, Florida 34205-9069

Dr. Tony Bennett, 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

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.