13-001676 Lee County School Board vs. Barbara Rice Status: Closed Recommended Order on Friday, December 20, 2013.

Summary: Petitioner has just cause to terminate Respondent's employment as a custodian, based on her repeated gross insubordination and willful neglect of duties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 1676

BARBARA RICE ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, an evidentiary hearing was conducted in

this case on September 10 and 11, 2013, by video teleconference

with sites in Tallahassee and Fort Myers, Florida, before

Administrative Law Judge Elizabeth W. McArthur of the Division of

Administrative Hearings.

APPEARANCES

For Petitione r: Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner has just

cause to terminate Respondent ' s employment as a custodian.

PRELIMINARY STATEMENT

By letter dated April 1, 2013, Respondent Barbara Rice

(Respondent) was notified that Petitioner Lee County School Board

(Petitioner) intended to seek termination of Respondent ' s

employment. The letter also informed Respondent that she would

be suspended without pay, effective April 2, 2013.

On April 15, 2013, a Petition for Termination (Petition) was

served on Respondent. The Petition set forth the allegations on

which Respondent ' s proposed termination was based, and included

charges of willful neglect of duties, gross insubordination,

incompetence, failure to adhere to high ethical standards, and

failure to satisfactorily and efficiently perform assigned job

duties.

The Petition informed Respondent of her right to request a

hearing on the charg es. Respondent timely requested an

administrative hearing, and Petitioner referred the matter to the

Division of Administrative Hearings. The evidentiary hearing was

scheduled in consultation with the parties regarding their mutual

availability.

Prior to the hearing, the parties filed a Joint Pre - hearing

Stipulation in which they set forth a number of admitted facts

and agreed statements of law. The parties ' stipulations are

incorporated into this Recommended Order to the extent relevant.

At the hearing, Petitioner presented the testimony of the

following witnesses: Andy Brown, investigator with Petitioner ' s

Department of Professional Standards and Equity (DPSE); Jason

Peters and Lisa Eastridge, both of whom were Lexington Middle

School (Lexington) assis tant principals during the relevant time

period; Jeff Hancock, Lexington head custodian; Rosa Valentin, a

custodian and former head custodian at Lexington; Mack Farmer,

Lexington building supervisor; and Linda Caprarotta, Lexington

principal. Petitioner ' s Exhibits 1 through 21 were admitted in

evidence.

Respondent testified on her own behalf and also presented

the testimony of Claytrina Griffin, a custodian at Lexington.

Respondent ' s Exhibits 1 through 4, 6, and 7 were admitted in

evidence. An objection to Respondent ' s proposed Exhibit 5 was

sustained; the proposed exhibit was neither admitted nor

proffered, and therefore, is not part of the record. See

§ 120.57(1)(f), Fla. Stat. (2013). 1/

The five - volume Transcript was filed on October 7, 2013.

The fi ling deadline for proposed recommended orders (PROs) was

extended pursuant to the parties ' joint motion. The parties

timely filed their PROs by the extended deadline, and they have

been considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. Petitioner is responsible for hiring, overseeing, and

terminating employees in the school district.

2. Respondent has been employed by Petitioner as a

custodian since September 13, 2002. Respondent worked at Dunbar

Middle School (Dunbar) until August 6, 2010, when she was

involuntarily transferred to Lexington. Respondent worked at

Lexington from August 2010 until her suspension on April 2, 2013.

3. Respondent ' s personnel file documents that throughout

her employment as a custodian, she has ha d problems with displays

of disrespect and insubordination to her fellow employees and

superiors. Respondent ' s disrespect and insubordination ha ve been

a consistent theme in written warnings and reprimands, incident

reports, and conference summary reports . Respondent has been

repeatedly advised in writing of the concerns with her behavior,

instructed to stop the unacceptable behavior, and advised of

disciplinary consequences if the behavior did not stop. The

writings in turn refer to verbal communication s with Respondent

about the same subject addressed in the writings. The writings

also reflect a consistent theme of Respondent ' s problematic

behavior arising when a superior would attempt to address a

problem with Respondent ' s job performance. For exampl e,

Respondent would be told to clean certain areas, but Respondent

would fail to follow the directives, and then Respondent would

become agitated and loud when confronted regarding her failure to

follow the cleaning directives.

4. The first memorandum, da ted January 9, 2004, was issued

by Respondent ' s then - supervisor, Carlos Morales:

Despite previous conversations regarding your

job responsibilities as a member of the

custodial staff at [Dunbar], it has become

necessary for me to apprise you in writing of

a serious concern regarding your

insubordination . . .

On Monday, January 5, 2004, you were asked to

vacuum all offices, rooms, and hallways of

the administrative wing. Upon checking the

administrative wing on the morning of January

8th, many areas appea red in need of

vacuuming. During my discussion with you

regarding this matter, your verbal, agitated

response became loud, accusatory and

insubordinate . . . It was then noted you

were approaching other school personnel

regarding the discussion and your

accusations.

Employees who are insubordinate are subject

to disciplinary action. I sincerely want you

to be successful at [Dunbar,] but this

requires more effort in your assigned duties.

The teachers, staff, and students depend on

you to do your part in making this a clean

and safe learning environment.

5. Respondent ' s performance evaluation for the 2003 - 2004

contract year echoed Mr. Morales ' concern, by finding that

Respondent " inconsistently practiced " effective communications

with co - workers and su pervisors. The comments informed

Respondent that she needed " to work on her communication in times

of questions of job requirements. " The same inconsistent rating

in the same category, with similar comments, appeared in

Respondent ' s evaluation for 2004 - 2 005.

6. Respondent received good performance evaluations for

contract years 2005 - 2006 and 2006 - 2007. No behavior problems

were documented in her personnel file during that time.

7. Respondent ' s performance evaluation for 2007 - 2008,

completed in March 2 008, found that although Respondent ' s job

performance was " adequate, " her punctuality and attendance

" continue to be " areas needing improvement. Later that same

year, in June 2008, an incident report was prepared by the

assistant principal to document an incident between Respondent

and her then - supervisor, Pete Torres. According to the report,

Mr. Torres tried to discuss a concern with Respondent about her

chronic tardiness, but Respondent " became very loud and

disrespectful towards her supervisor, Mr. To rres. " The assistant

principal met with Respondent to discuss the incident, and

determined that Respondent " was disrespectful towards her

supervisor. Disrespect toward s any school employee will not be

tolerated. Any type of future disrespect will result in [a]

documented performance letter. " Respondent was advised that a

documented incident report would be placed in Respondent ' s

personnel file.

8. Respondent ' s performance evaluation for 2008 - 2009 found

Respondent ' s performance inconsistent in the areas of punctuality

and communications with co - workers and supervisors. The comments

noted inconsistencies with Respondent ' s " interpersonal skills and

attendance issues. " Shortly after this performance evaluation,

on July 23, 2009, the assistant principal pr epared another

incident report to document an incident involving Respondent.

According to the documentation, at a mandatory meeting and

training session for all of the custodians with district zone

manager Debbie Greene to review summer cleaning processes and

procedures, Respondent " became very loud, disrespectful and

belligerent towards her direct supervisor, head custodian Randy

McMillan. " The assistant principal held another meeting with

Respondent to discuss the incident, and he determined that

Respon dent was disrespectful towards her supervisor. He also

reminded Respondent that " this was the second documented incident

involving disrespect towards a supervisor in the past two years. "

Respondent was told again " that this behavior is unacceptable and

w ould not be tolerated. " Respondent was advised that this

documented incident report would be placed in her personnel file.

9. For the 2009 - 2010 contract year, Respondent ' s

performance evaluation continued to reflect issues in the

communications areas. R espondent was rated as " inconsistent " in

the following areas: " responds appropriately to praise and

constructive criticism " ; and " communicates effectively with

coworkers, supervisors, and school - based staff. " The comments

regarding these ratings were: " Ms. Rice continues to have

trouble responding appropriately to constructive criticism.

Cooperating with supervisors continues to be an area of focus. "

10. The documentation in Respondent ' s personnel file from

her years at Dunbar portrays a pattern of sim ilar behavior by

Respondent in her dealings with a number of different

supervisors. This documentation put Respondent on notice that

her behavior was not acceptable. Nonetheless, Respondent did not

take away from her years at Dunbar that her behavior was not

acceptable and needed to change. When Respondent was asked if

she recalled having problems with her supervisors and other

employees at Dunbar, she responded:

Of course I ' ve had problems with -- from the

other school, but it was only by speaking my

op inion because if someone asked me something

I ' m going to tell them how I feel, but it ' s

not nothing about like cursing them or

whatever, just let them -- I ' m giving them my

answer. And then the way I talk, they say

that I be disrespectful to them because I

have a hot - pitched tone voice, but I don ' t

mean no harm on nothing I say. I just trying

to express my opinion. Even when I talk, I

talk with my hands and it don ' t mean that I ' m

trying to be rude or nothing, I ' m just used

to expressing my feelings.

11. Respondent was involuntarily transferred to Lexington

shortly after the beginning of the 2010 - 2011 contract year. The

circumstances of this transfer were not established in the

record.

12. Respondent began working as a custodian at Lexington on

August 9, 2010. She worked during the day over the summer, as

did all of the custodial staff. When school was in session,

Respondent was assigned to what was variously described as the

afternoon, evening, or night shift (hereafter referred to as the

" night shif t " ), working from 2:00 p.m. until 10:00 p.m.

13. At Lexington, the building supervisor was in charge of

the custodial department, and was the direct supervisor of the

custodial staff. The work hours for the building supervisor

position were from 8:30 a.m . to 4:30 p.m. Therefore, during the

school year, the building supervisor ' s work day overlapped with

the night shift by only two and one - half hours.

14. After the building supervisor left for the day, the

head custodian served as acting supervisor of the night shift

custodians. The head custodian was considered the liaison

between the building supervisor and the custodians. The head

custodian would receive instructions and directives from the

building supervisor in the afternoon, and the head custodian was

responsible for giving directives to the night shift custodians

and supervising their work to ensure that they carried out the

directives.

15. The head custodian position at Lexington was not a

managerial position; the head custodian did not have auth ority to

discipline the other custodians. However, by all accounts, the

head custodian was vested with authority to give directives to

the custodians working the night shift. The head custodian was

reasonably expected to act as supervisor of the night sh ift

custodians after the building supervisor left each day.

Otherwise, these employees would be left unsupervised for two -

thirds of their work day.

16. During Respondent ' s first year at Lexington, the

building supervisor was Jack Duffy and the head custo dian was

Rosa Valentin. According to Respondent, that year was " okay, " in

that she did not have any problems at work. However, according

to Respondent ' s performance evaluation, which recorded her

absences and tardy days through March 2011, Respondent mis sed a

lot of work. In fact, the evaluation comments refer to a meeting

with Respondent in February 2011 to address concerns with her

attendance; improvement in Respondent ' s attendance was noted in

the month following that meeting.

17. Respondent had onl y been working at Lexington for seven

months when assistant principal Jason Peters drafted Respondent ' s

performance evaluation for the principal, Linda Caprarotta, to

review and sign, in accordance with the standard practice. For

this short period of time , during which Respondent frequently was

absent and late, Respondent ' s performance was found inconsistent

in the areas of using leave only when necessary and punctuality ,

but her job performance otherwise was found to be effective.

18. However, the Lexing ton principal was not satisfied with

the overall performance of the custodial department for the 2010 -

2011 contract year, because the school was not being cleaned

well. Ms. Caprarotta determined that the building supervisor ,

Mr. Duffy, lacked appropriate management skills. She found him

to be too lax with the custodial staff . H e was not comfortable

supervising, giving directives, or confronting the custodians

when their work was unsatisfactory. Therefore, Mr. Duffy was let

go at the end of the 2010 - 2011 contract year.

19. On July 6, 2011, Ms. Caprarotta hired Mack Farmer to

replace Mr. Duffy as the Lexington building supervisor.

Mr. Farmer had the management experience Ms. Caprarotta was

looking for, having run his own cabinet manufacturing company fo r

25 years. Ms. Caprarotta informed Mr. Farmer of her expectations

for better - quality cleaning services for her school, and her

expectation that he would exercise stronger supervisory

responsibility than the prior building supervisor to ensure that

custod ians were doing their jobs.

20. The credible evidence supports a finding that before

Mack Farmer was hired, the custodial staff at Lexington had a

relatively easy time, with little expected or demanded of them by

the building supervisor. The night shift workers, including

Respondent, essentially had free rein to do things their own way,

but their own way was not getting the job done. As Respondent

put it, " Really I wasn ' t sure that they was watching me or

anything, but they never told me that I wasn ' t -- that I needed

to do better or anything[.] "

21. Although Respondent ' s attendance had improved after a

meeting was held in February 2011 to address the problem, the

improvement was short - lived. In addition, problems had become

apparent with Respondent ' s p erformance when she was there

working. On July 13, 2011, Ms. Caprarotta and Mr. Peters held a

meeting with Respondent " to address absenteeism/tardiness and

work performance. " The meeting was documented in a conference

summary performance report and place d in Respondent ' s personnel

file. According to the report, with regard to Respondent ' s work

performance issues, Respondent was reminded that she was

" expected to work thoroughly and continue to work/clean during

her designated work times. "

22. Responden t testified that everything fell apart after

Mr. Duffy was replaced with Mr. Farmer. Respondent was not happy

with the change, and did not agree with it:

Q: You heard Ms. Caprarotta, she wasn ' t happy

with Mr. Duffy, she didn ' t think that he was

requiring satisfactory services from the

custodial staff, you heard that, right?

A: Yes, I did.

Q: And do you agree that it ' s the principal ' s

choice as to who she wants as the building

supervisor?

A: Well, I don ' t agree, but I know that

that ' s what I heard th at that ' s mandatory that

the principal have all the say - so on who she

wants to be hired in her system.

* * *

Q: Okay. So whatever reason she had for

replacing Mr. Duffy, is that your concern?

A: No, it ' s not my concern, but it come down

to my c oncern whenever she replaces Mr. Duffy

and end up -- it ' s a stress - free environment

and then it ' s very stressful on the people

that I ' m working under.

23. According to Respondent, Mr. Farmer approached her on

his first day of work and told her that he kn ew who she was and

that she had better be careful because they were trying to get

rid of her.

24. The more credible testimony was a bit different from

Respondent ' s description. Ms. Caprarotta credibly testified that

when Mr. Farmer was first hired, she t alked to him about the

broader issue of the lack of cleanliness and need for better

management of the custodial staff. She briefed Mr. Farmer about

all of the staff members whom he would be supervising; Respondent

was included, but not singled out. Mr. F armer credibly testified

that he spoke with Respondent not on his first day, but shortly

thereafter, to tell her that she needed to change her behavior

and improve her performance or she was going to lose her job. He

had many conversations with Respondent , trying to get her to do

her work, be a team player, and improve her behavior. Respondent

acknowledged that she took away from Mr. Farmer ' s comments to her

that she needed to improve: " I figure I better do a good job. "

25. In August 2011, shortly after Mr. Farmer began as

building supervisor, Respondent was involved in an altercation

with Rosa Valentin, then - head custodian. Respondent was called

in for a conference with the principal, assistant principal, and

Mr. Farmer. A conference summary performan ce report dated

August 10, 2011, documented the incident and the conference, at

which Respondent was reminded that one of her job requirements

was that she must have the ability to work well with others, and

that Respondent was expected to do so. Respond ent was informed

that her failure to comply will result in further disciplinary

actions.

26. The altercation addressed by the August 2011 conference

summary performance report was described in somewhat - conflicting

terms by several witnesses. The more cre dible testimony

established that Respondent confronted Ms. Valentin, who was

weeding the flower beds next to the school building. Another

custodian was standing next to Ms. Valentin. Respondent made

negative comments critical of Ms. Valentin, questioning why

Ms. Valentin was not making the other custodian help with the

weeding, and suggesting that Ms. Valentin would have made

Respondent help if it w ere Respondent standing next to her.

Respondent and Ms. Valentin argued, and Respondent called

Ms. Va lentin a " b****. " Ms. Valentin went inside to the main

office to report the incident to the principal. Respondent

followed Ms. Valentin into the main office, where Respondent

resumed her verbal assault on Ms. Valentin. Respondent was the

instigator and the aggressor, and her behavior was completely

inappropriate.

27. Respondent did not deny the essential facts of this

altercation. She did not deny having called Ms. Valentin a

" b****. " This incident stands in marked contrast to Respondent ' s

testimony t hat she was never disrespectful and was just

expressing her opinions. A custodian calling a head custodian a

" b**** " is no mere expression of opinion.

28. Respondent ' s friend, Clayt rina Griffin, another

custodian who was with Respondent during the alte rcation,

testified without a great deal of credibility that she did not

see anything wrong with Respondent ' s comments. However,

Ms. Griffin admitted that, unlike Respondent, she did not say

anything to Ms. Valentin because whether Ms. Valentin required

th e other custodian to help her weed or not was none of

Ms. Griffin ' s business.

29. Shortly after this incident, Ms. Valentin requested to

be moved to the day shift for personal reasons, even though that

would mean she could no longer be the head custodian whose job

was to supervise the night shift custodians. Ms. Valentin ' s

request was granted, and her position was downgraded to a regular

custodian at a lower pay grade. After advertising and

interviewing candidates for the head custodian position, Jeff

Ha ncock, who was a custodian at a different school, was hired as

Lexington ' s new head custodian.

30. Mr. Farmer and Mr. Hancock had specific ideas about how

the cleaning should be done by the custodians. Just as

Respondent expressed her dislike for the new , more demanding

building supervisor, Respondent also made clear that she did not

like the new head custodian. Ms. Griffin echoed Respondent ' s

sentiments, complaining that Mr. Farmer and Mr. Hancock were

demanding. Ms. Griffin complained that Mr. Hancock would spend

too much time (which she quantified as five minutes), hanging

around to tell Ms. Griffin what to do and how to clean, and

repeating the same directive over and over. Both Respondent and

Ms. Griffin testified that Mr. Farmer and Mr. Hancock ha d their

own ideas regarding how they wanted the custodians to clean and

neither Mr. Farmer nor Mr. Hancock liked it when Respondent or

Ms. Griffin would clean their own way, as they apparently had

been able to do when they had enjoyed lax supervision or no

supervision at all . The key difference between these two

custodians, however, is that Ms. Griffin would keep quiet and

would just do her work in the way that Mr. Farmer and Mr. Hancock

wanted it done. As a result, Ms. Griffin was able to finish her

assi gned cleaning duties by the end of her shift, even when she

and the other custodians at work had to absorb extra duties

because of absent workers.

31. Respondent did not respond appropriately to being told

how to do her work by Mr. Farmer and Mr. Hancock. Instead,

Respondent responded with displays of the same type of behavior

for which she had been taken to task when she worked at Dunbar.

32. On December 16, 2011, Ms. Caprarotta issued a letter of

reprimand to Respondent for being insubordinate and disr espectful

to her supervisor, Mack Farmer , on December 7, 2011. Mr. Hancock

was out that day, so Mr. Farmer stayed at work for the night

shift. Mr. Farmer gave Respondent specific directions regarding

cleaning her assigned rooms, telling her that she was to go into

each room and clean it completely before going to the next room.

Instead of following directions, Respondent went up and down the

hallway, complaining and yelling at Mr. Farmer. Mr. Farmer

directed Respondent to stop, but she continued. Respo ndent

yelled at Mr. Farmer from one end of the hallway to the other,

and followed him until she was in his face, yelling at him that

he gave her too much work. If Respondent had not wast ed the time

she should have spent cleaning to walk up and down the ha llway ,

loudly " expressing her opinion " to her supervisor , she might have

found there was not too much work.

33. That same night, in the middle of her shift, not during

a break, Respondent went to Mr. Farmer ' s office to fill out a

vacation request. Mr. Fa rmer instructed her to stop; he told her

that she should not take the time to fill out a vacation request

when she had not finished her cleaning assignments. Respondent

ignored his directive, and kept filling out her request. As

Mr. Farmer aptly describ ed it, " This was [Respondent] doing what

she wanted to do instead of doing her job. "

34. As a result of Respondent ' s failure to follow

Mr. Farmer ' s multiple directives on just this one day, Respondent

failed to complete her cleaning duties by the end of her shift.

35. In t he December 16, 2011, letter of reprimand ,

Ms. Caprarotta noted that Respondent had engaged in the same kind

of insubordinate and disrespectful behavior on January 5, 2004,

June 26, 2008, July 23, 2009, and August 8, 2011 , and each tim e ,

Respondent ' s outbursts targeted a different supervisor.

Ms. Caprarotta gave Respondent the following directives :

Effective immediately, you are expected to

treat your supervisor with respect. At no

time should you be screaming or yelling in th e

work environment. You are expected to follow

directives given to you by your supervisors.

You are expected to finish all work assigned.

Failure to comply with this directive will

result in further disciplinary action up to

and including termination.

36. Despite the directive s in the December 16, 2011, letter

of reprimand, Respondent engaged in the same type of behavior,

which was the subject of another conference summary performance

report issued on February 16, 2012, and placed in Respondent ' s

perso nnel file. The subject of this conference was Respondent ' s

disrespect toward Jeff Hancock, the head custodian, described in

the summary as Respondent ' s " Designated Supervisor . . . when the

Building Supervisor is not present. " When Mr. Hancock had given

Respondent directives, she refused to listen to him and was rude

and disrespectful. Respondent had to be reminded again that she

was required to work well with others and was required to respect

her designated supervisor by following directions.

37. In t he early spring of 2012, Mr. Peters drafted

Respondent ' s performance evaluation for the 2011 - 2012 contract

year. This evaluation reflected a marked deterioration from the

prior partial - year ' s evaluation, consistent with the documented

problems added to Re spondent ' s personnel file. Respondent did

not improve in the dependability section, receiving two

inconsistent ratings. In the job skills section, Respondent ' s

performance was deemed inconsistent in all five areas measured.

Likewise, Respondent ' s perfor mance was inconsistent in f ive of

the s even areas in the interpersonal skills section; her two

effective ratings in this section did not involve communications

or interactions with others; instead, Respondent was found

effective in dressing in an appropria te manner and being clean

and neat in appearance. The evaluation comments reflected that

Respondent " had issues with respecting authority, " although, as

before, she had shown improvement following the most recent

meeting. In addition, Respondent was told that she needed " to

improve her quality of work and be more efficient. " Finally, her

problems with tardiness and absences were noted.

38. In May 2012, the Lexington principal made a referral to

the DPSE to investigate Respondent for misconduct, includin g

excessive absenteeism, disrespect, and insubordination. The

principal testified that she made the decision to make the

referral to the district level because all of the school - level

meetings, discussions, written reports, and reprimands had been

ineffec tive in bringing about sustained improvement in

Respondent ' s behavior and performance.

39. The details of the 2012 investigation were not

established in the record. However, in accordance with the

collective bargaining agreement between Respondent ' s uni on, the

Support Personnel Association of Lee County (SPALC), and

Petitioner (hereafter referred to as the SPALC agreement), the

investigation file was provided to Respondent and her union

representative , and then a predetermination conference was held .

T he predetermination conference in July 2012 was attended by

Ranice Monroe, director of the DPSE, Respondent, and her union

representative, Mr. Rushlow . In the predetermination conference,

Respondent and her representative were given the opportunity to

res pond to the investigation material.

40. The 2012 investigation concluded with a finding of

probable cause to take disciplinary action against Respondent.

Respondent received a formal letter of reprimand as disciplinary

action for excessive absenteeism. I n addition to the formal

disciplinary action, Petitioner took other action t o address

Respondent ' s disrespectful and insubordinate behavior.

Mr. Rushlow and Ms. Monroe went to Lexington to work with

Respondent for the purpose of retraining , or " coaching , " her.

They gave Respondent instructions on how to relate to, and

communicate better with, people. As Ms. Monroe recently reminded

Respondent (in the 2013 predetermination conference that was the

precursor to this disciplinary action), the hope was that

Respondent would respond to this informal coaching assistance by

improving her behavior. 2/

41. Instead of improving her behavior in response to the

coaching assistance, Respondent made no effort to change, because

she continued to deny that there was any problem with her

behavior:

Q: Do you remember Mr. Rushlow and others

coming out to the school and to try to coach

you on how to relate to other people?

A: They had to come and coach me simply

because they was making false accusations so

I had to go to t he meeting and attended the

meeting. That don ' t mean that happened.

That do not mean that I talk back to them and

that don ' t mean that happened. The ones that

say that I talked back, it was just that I

was expressing and giving them my point of

view. B ut disrespecting them? That wasn ' t

really no disrespect[.]

42. According to the Lexington principal, after the July

2012 predetermination conference, Respondent had clear

instructions to return to work , work hard , and keep her comments

to herself; howev er, Respondent did what she was told for only

about two weeks. She then fell into her old pattern of refusing

to take instruction from her supervisors, Mr. Farmer and

Mr. Hancock, and talking back to them.

43. As an example, Ms. Caprarotta got involved in an

incident in September 2012 when Respondent would not listen to

Mr. Hancock ' s instructions regarding the order in which

Respondent was supposed to clean her assigned rooms. On several

occasions, the kitchen science teacher had complained that her

roo m was not being cleaned and she had to sweep and mop it

herself. Meanwhile, Respondent was not able to regularly finish

her cleaning assignments by the end of her shift, but Mr. Hancock

would require her to clock out and leave her work unfinished,

because overtime pay was not allowed without prior approval. In

an attempt to partially address these problems, Mr. Hancock

instructed Respondent to clean the kitchen science classroom

first, but Respondent responded rudely, yelling at him.

Ms. Caprarotta was informed, and spoke with Respondent about the

incident. Respondent told the principal that " that man does not

have to tell me what I need to do; you should hear what he says

to me, he treats me like a slave. " When Ms. Caprarotta asked

what exactly she me ant by that, Respondent replied: " He keeps

trying to tell me what to do. " Ms. Caprarotta informed

Respondent that Mr. Hancock is her supervisor during the night

shift and she had to listen to him and comply because her rooms

were not getting clean every n ight.

44. At this point, Ms. Caprarotta instructed Mr. Hancock to

keep Mr. Farmer, Mr. Peters, and herself informed regarding

Respondent ' s behavior and job performance. In addition, she and

Mr. Peters began following up to inspect areas where cleaning

pr oblems were called to their attention, so that they could judge

for themselves. While Respondent contends that she was being

unfairly targeted for scrutiny, the credible evidence established

that Respondent ' s performance was reasonably subjected to

scruti ny, brought on by Respondent ' s own failure to perform well,

and by her inappropriate outbursts directed to her supervisors

when they tried to address the problems with her work.

45. On November 20, 2012, Mr. Farmer inspected the school

and provided Mr. Ha ncock with an inspection report that listed

items and areas not cleaned sufficiently during the previous

evening shift. The boys ' and girls ' bathrooms on the first

floor, which were Respondent ' s assigned areas, were on the

report, with specific items list ed that were not cleaned. 3/

Mr. Farmer also reported the cleaning deficiency to Mr. Peters,

and had Mr. Peters personally inspect the first floor bathrooms.

Mr. Peters agreed with Mr. Farmer ' s report that the bathrooms had

not been cleaned properly.

4 6. Mr. Hancock gave Respondent the list of items that she

had failed to clean adequately the previous day. Respondent did

not complete the items on the list that day, and Respondent took

leave the next day, so Mr. Hancock had to finish the cleaning.

47. Although Respondent first claimed that she was

completely unaware that there were any problems with the quality

of her cleaning in the fall semester of 2012, she admitted that

she remembered Mr. Hancock going over a list of things that had

not been cleane d in the bathrooms. Respondent minimized the

problems, claiming that they were nothing substantial.

Respondent ' s claim was not credible; Mr. Farmer observed such

problems as not emptying and cleaning the feminine sanitary

receptacles, and not cleaning dir t and grime on stall doors and

door handles that was built up to the point where it was clear

that the cleaning had not been done properly in weeks.

48. On one afternoon after school in mid - October 2012,

then - assistant principal Lisa Eastridge went to the " time - out

room " to return some books. She found the room locked, with the

lights off. She unlocked and entered the room, and started

walk ing across to put away the books she was returning, when she

was startled to see that Respondent was there, seated a t a

student desk, with her head down on the desk. At about the same

time, Respondent realized that Ms. Eastridge was in the room and

jumped up. Ms. Eastridge asked Respondent if she was all right,

and Respondent said she was fine. Ms. Eastridge put the books

down and left. Thereafter, she checked with Mr. Farmer to find

out if Respondent was on her break at the time, and confirmed

that it was not Respondent ' s break time. The next day, after

Respondent learned that Ms. Eastridge had spoken to Mr. Farmer

about the incident, Respondent sought out Ms. Eastridge to tell

her that she had not been sleeping. Ms. Eastridge told

Respondent that she did not tell Mr. Farmer that Respondent had

been sleeping, but told him that she found Respondent in the

time - out r oom with the door locked and lights off, and

Respondent ' s head down on the desk.

49. At the hearing, Respondent claimed that Ms. Eastridge

was lying about this encounter, although Respondent offered no

reason why Ms. Eastridge would lie. Respondent claim ed that the

actual encounter between herself and Ms. Eastridge in the time -

out room was over the summer, that there were no desks in the

time - out room because they had been removed so the floors could

be done, that Respondent was in the bathroom off of the time - out

room, and that Ms. Eastridge found her there when she exited the

bathroom. While the encounter Respondent described may have also

occurred, Ms. Eastridge ' s description of a different encounter in

mid - October 2012 was credible, and not credibly r efuted by

Respondent.

50. Later in October 2012, Ms. Eastridge was exiting a

stairwell when she observed Respondent in a confrontation with

Mr. Farmer. They had their backs to her, and so they did not see

her. Mr. Farmer was speaking politely and softly , attempting to

go over the cleaning procedures with Respondent, explaining that

she needed to clean the home science classroom first and then

make sure the bathrooms are clean. Respondent responded loudly

and disrespectfully, yelling at Mr. Farmer that s he knew what she

was supposed to be doing, and arguing with him as he was gently

trying to explain why she needed to clean the areas in a certain

order. Ms. Eastridge stood there for a moment to see if she

needed to intervene, but Respondent and Mr. Farme r proceeded down

the hallway away from Ms. Eastridge, so she just went on her way.

51. Ms. Eastridge also observed Respondent in similar

confrontations with Mr. Hancock. On one occasion during the 2012

fall semester, Ms. Eastridge came upon Respondent an d Mr. Hancock

in the hallway outside of the custodial office. Mr. Hancock was

trying to talk to Respondent about making sure to clean the

bathrooms properly. Respondent, however, was being very loud and

argumentative, yelling and screaming at Mr. Hancock .

Ms. Eastridge stopped to ask Mr. Hancock if she needed to

intervene and assist. Respondent attempted to downplay the

confrontation, saying that they were just having a conversation.

Ms. Eastridge advised Respondent that she needed to conduct her

conv ersations in a peaceful, quiet, respectful tone of voice, not

yelling and screaming at Mr. Hancock.

52. Respondent was involved in another confrontation with

Mr. Hancock on December 19, 2012. At the beginning of her shift

that day, Respondent had cleane d the courtyard adjacent to the

cafeteria, wiping down the outdoor tables and removing the trash.

She then joined the other custodians to clean the cafeteria.

Respondent noticed that teachers were bringing food out to the

courtyard, and she learned that they would be meeting with

parents for a parent - teacher organization (PTO) meeting.

Respondent got angry and started yelling at Mr. Hancock across

the cafeteria that she was not going to clean up again after the

teachers were done. Respondent admitted th at she asked

Mr. Hancock " what type of head custodian are you, " and told him

that it was dumb to send her out to clean the courtyard when the

teachers were going out to mess it up again. 4/ Respondent did not

believe she was disrespectful to Mr. Hancock: " I ' m only

expressing and all I told him was that was a dumb -- you know,

like that was a bad choice that you made [ . ] "

53. After Respondent " expressed her opinion " that

Mr. Hancock was a bad head custodian who made dumb choices,

Mr. Hancock just walked a way. Respondent followed him to make

sure he was not going to report what she had said to the

principal. Mr. Hancock testified credibly that Respondent was

shouting at him that he had better not report her to the

principal.

54. On December 21, 2012, Mr. Farmer inspected the

classrooms before the winter break. He found that several

classrooms in Respondent ' s assigned areas had not been dusted,

cleaned, or vacuumed for quite some time. Mr. Farmer had

Ms. Caprarotta inspect the rooms, and she found them noticeably

dirty, with corners full of dust, dirt, and paper scraps, and

shelves and counters " filthy with dust. " When Mr. Farmer spoke

with Respondent about these problems, Respondent blamed the

teachers for doing things in the classrooms to make them so

dirty. Mr. Farmer ended up cleaning the rooms himself.

55. Mr. Farmer testified credibly that Respondent was

repeatedly insubordinate to him by refusing to follow his

directives, and by telling him that he was not her boss and could

not tell her what to do . When Mr. Farmer t ried to tell

Respondent to do her job, she would laugh at him and tell him

that she w as going to bring harassment charges against him.

Respondent denied that she ever told Mr. Farmer he was not her

boss, but admitted telling him tha t " h e really not no

professional on being no building supervisor. He might have

supervised where he had his cabinet shop, but you ' re not doing it

right. " Respondent also denied laughing at Mr. Farmer, but

admitted threatening him with harassment charges when he would

tell her to do her job.

5 6 . As evident from the following exchange, Respondent

ultimately admitted that she did not accept direction from either

Mr. Hancock or Mr. Farmer, even though she acknowledged that

Mr. Farmer was her direct supervis or; Respondent then tried to

blame the union for her own refusal to follow Mr. Farmer ' s

directions, as if the union somehow had led her to believe she

could be insubordinate:

Q: Barbara, do you not believe that a

supervisor or boss should be able to direc t

the people that they supervise?

A: I believe so. That ' s why I give

Ms. Caprarotta so much respect because she ' s

our boss, but because she acted like a boss,

she performed like a boss. But Mr. Farmer and

Mr. Hancock, they didn ' t perform like t hey

should be telling me nothing, and I should

have went to the principal. I didn ' t never do

it. I should have went to the principal with

all of this, but I never did it.

* * *

Q: Doesn ' t it mean anything to you based on

the respect that you have for Ms. Caprarotta

that she hired Mr. Farmer and that should mean

something?

A: Well, as we talking now it means something

now. I have respect now. But then I wasn ' t

thinking that way. I wasn ' t thinking that

way. I was only thinking that she ' s j ust my

boss, no one else, because the union kept

throwing in my face that John [sic: Jeff]

Hancock, he ' s not your boss, he can ' t tell you

this, and this all I was going on. You know,

you know, like miss -- like Bob Rushlow said,

oh, I ' m gonna file a griev ance I don ' t even

know what all the half of this stuff is.

Q: Do you feel like the union misled you?

A: That ' s right. I feel like they did.

Maybe I wouldn ' t be doing the type of acts

like I was doing.

5 7 . Ms. Caprarotta credibly testified to the le ngths that

Lexington personnel went to in their attempts to curb

Respondent ' s misbehavior and improve her work performance,

including in the performance conferences detailed above and in

informal conferences with Respondent and union representatives.

In o ne of the informal conferences with Respondent and her union

representative during the 2012 fall semester, attended by

Ms. Eastridge, Respondent got angry and belligerent in response

to Ms. Eastridge ' s description of Respondent ' s confrontation with

Mr. Fa rmer (addressed in paragraph 50 above). Respondent slammed

her hands on the table angrily and yelled at Ms. Eastridge that

she was not even there.

5 8 . Ms. Caprarotta personally met with Respondent many

times to address the numerous incidents brought to h er attention

during the 2012 - 2013 contract year. Ms. Caprarotta tried to

coach , counsel , and direct Respondent to control her temper,

listen to her superiors, and just do her work. Ms. Caprarotta

told Respondent that if she did not heed the warnings she had

been given time and time again, she was going to lose her job.

Ms. Caprarotta testified that she liked Respondent and tried hard

to get her on track. For a brief period after each time they

met, Respondent ' s performance and attitude would improve.

H owever, Respondent would always slide back into the unacceptable

pattern of disrespect and insubordination directed to the head

custodian and the building supervisor, and not doing a good job

cleaning her assigned areas.

5 9 . On January 9, 2013, Ms. Caprar otta gave Respondent a

30 - day notice that she would be reassigned to the day shift. The

principal made this decision because she believed it was

necessary to micromanage Respondent, keeping her under the

watchful eyes of the principal, assistant principal s, and

building supervisor.

60 . There was not really a day - shift position for another

custodian, and the reassignment would leave the night shift short

one custodian. This move was, therefore, not so much of a

solution or chance for redemption as it was a gesture of defeat.

Before the reassignment went into effect on February 11, 2013,

the Lexington principal made a referral to the DPSE, requesting

that Respondent be investigated for insubordination and

inadequate job performance. 5/ As Ms. Caprarotta ex plained to the

DPSE investigator:

I have been in an administrative position for

the past 16 years. I have spent more time

dealing with [Respondent] than I have with

any others combined. The situation is

continual with little to no progress. . . .

[When the shift change goes into effect], I

will have to micromanage her all day every

day. . . . I do not need her during the day

and the night shift will now be a person

short, however, I will not tolerate the

insubordinate and unprofessional behavior

towards my staff any longer.

6 1 . Respondent was under the impression that she was doing

well on the day shift. However, the arrangement could not last;

Respondent ' s job position was needed for the night shift, for

cleaning empty classrooms and bathrooms when s tudents and

teachers were gone for the day.

6 2 . Respondent made clear in her testimony at the hearing

that she is unwilling to change her behavior. During the 2012 -

2013 contract year, up to the date of her suspension, Respondent

was repeatedly confrontat ional and disrespectful with her direct

supervisor, with the head custodian when he was her acting

supervisor, and with at least one assistant principal.

Respondent repeatedly refused to follow reasonable directives

from her direct supervisor. Respondent repeatedly refused to

follow reasonable directives from the night - shift acting

supervisor. Respondent repeatedly refused to follow reasonable

directives from the principal, such as the directive that

Respondent must take direction from the head custodian .

6 3 . Respondent attempted to establish at hearing that the

2013 investigation took her by surprise, because she had no idea

that anyone had a problem with the quality of her work or with

her behavior during the 2012 - 2013 contract year. This claim was

no t credible, and was refuted by Respondent ' s own testimony that

was diametrically opposed to the claim of surprise. Respondent

testified that she knew that her performance was under scrutiny,

because Mr. Farmer and Mr. Hancock watched everything she did an d

picked on every little thing. Quite plainly, then, Respondent

was aware that her supervisors were not pleased with the quality

of her work, but she did not attempt to address their criticism s .

Instead, Respondent viewed the criticisms and cleaning dire ctives

as provocation for her to respond angrily and disrespectfully.

According to Respondent, Mr. Farmer and Mr. Hancock made her be

disrespectful and insubordinate to them; they knew that if they

gave her directions, she would " snap " and refuse to foll ow their

directions. As Respondent described it:

It was always wh at ever you have to do they

would -- while I ' m doing it they would steady

coming in repeating the same thing over just

torturing me when I already done heard them

say i t. And so that make me -- provoke me to

snap and say I done heard that, just get out

of my face, I done heard that or something

like that. It ' s just like it was a ongoing,

never stop situation on just nagging me,

that ' s all. So it made me felt like . . .

I was doing my job, but how can I finish in

time if they steady come every other 30

minutes in the room saying speed up or saying

the same thing over, I want you to do this or

then the next one will say the same thing.

6 4 . Notwithstanding Respondent ' s perception, a supervi sor ' s

directives to a subordinate employee regarding how the supervisor

wants the employee to carry out his or her job does not

constitute " nagging. " Rather than treating such directives as

nagging or as provocation that had to be met with a harsh

respons e to " get out of my face, " Respondent should have curbed

her tongue, accepted the supervision, and followed the directives

as part of Respondent ' s job responsibility. Respondent was not

entitled to free rein to work in the manner she saw fit, nor was

Resp ondent entitled to harshly criticize her supervisors when

they sought to direct Respondent in the manner in which she was

to carry out her job.

6 5 . No credible evidence was presented to establish that

the directives given to Respondent by either Mr. Farme r or

Mr. Hancock were unreasonable. Instead, Respondent just

disagreed with how her supervisors wanted her to perform her

assignments, and bristled simply because they would tell her what

they wanted her to do. For example, when Respondent was having

tr ouble cleaning all of her assigned rooms by the end of her

shift, Respondent was directed to clean her rooms in a certain

order so that the most important rooms, or the rooms that had

been the subject of complaints (such as the home science

classroom), wou ld be done first. Respondent disagreed with this

directive, and rather than simply following orders, she argued

with the directive, violated the directive, and then argued some

more. Respondent told her supervisor, Mr. Farmer, that he was

not qualified f or his job and had no business telling her how to

clean. At the hearing, Respondent stubbornly stuck to the mantra

that she was only expressing her opinion when asked, and did not

intend any disrespect. Respondent ' s claim was not believable.

Surely, Res pondent does not expect anyone to believe that

Mr. Farmer asked Respondent for her opinion regarding whether he

was qualified to supervise her. Respondent ' s comments were

blatantly disrespectful and grossly insubordinate.

6 6 . Perhaps Respondent was capa ble of doing a good job

cleaning, but with all of the time and energy she spent

complaining, criticizing, and talking back to her supervisors,

she proved incapable of doing her work in the remaining time.

And even though Respondent acknowledged that she ha d problems

finishing her assigned work by the end of her shift, Respondent

reacted badly whenever her supervisors would tell her to hurry

up, that she needed to pick up the pace in order to finish in

time. Respondent reacted to such comments as provocatio n for

another round of angry responses, yelling at her supervisors that

she did not need to hear " that junk " and that they should " get

out of her face. "

6 7 . Respondent attempted to blame her inability to finish

her assigned cleaning duties by the end of h er shift on the extra

cleaning duties she had to absorb when other custodians were

absent or tardy. Respondent attempted to prove that the

custodial staff at Lexington had an unusually high number of

absences and tardy days during the 2012 - 2013 contract y ear, and

therefore, her inability to finish her cleaning was the fault of

administration for not hiring more staff. The credible evidence

did not prove Respondent ' s theory. Attendance data was offered

only for the 2012 - 2013 contract year; no comparative data was

submitted for other years. Testimony by school officials was

that the custodial staff always took a good number of days off,

especially near weekends and holidays, and they were entitled to

their leave time; 2012 - 2013 was not considered to be an unusual

year in this regard. Although the attendance data offered by

Respondent showed a fair amount of absences in 2012 - 2013 , most of

the absences by night shift custodians did not take place until

after February 8, 2013, which was Respondent ' s last day working

the night shift. Respondent pointed to one custodian, in

particular, who missed many whole and partial days due to an

on - the - job injury. However, most of those absences were after

February 8, 2013. Therefore, the absences of custodial staff

wer e not shown to be the cause of Respondent ' s recurring

inability to finish her assigned cleaning duties when she was on

the night shift through February 8, 2013. Significantly, the

only other regular night shift custodian to testify, besides

Respondent, sa id that she has always finish e d her assigned

cleaning duties by the end of her shift, even when she has extra

cleaning dutie s to make up for other custodians who are not

working .

68 . During the 2012 - 2013 contract year, up until

Respondent ' s suspension, Re spondent repeatedly was told of the

shortcomings in the quality of her work, from not cleaning the

bathrooms properly , to not vacuuming and mopping the home science

classroom floors, to not vacuuming and dusting her assigned

classrooms, to not finishing he r assigned cleaning duties by the

end of her shift. Moreover, Respondent was well aware of the

repeated confrontations she had with the head custodian,

custodian, with the building supervisor, and with assistant

principal Eastridge. 6/ Respondent has no o ne but herself to blame

for minimizing or trivializing these incidents, and ignoring the

many warnings and chances she was given. Inexplicably, despite

all the warnings Respondent had been given that her misbehavior

was unacceptable and could result in te rmination, Respondent

decided that she did not have to take the warnings seriously,

because she did not think h er misbehavior was unacceptable as she

had been told repeatedly:

I felt like disrespecting wasn ' t -- if you

disrespect somebody, you got to be re ally

cursing somebody out, or this here and that,

or if for me to get to get to this far I have

to done stole something or demolished the

school or something.

6 9 . In terms of process, the evidence established that

Petitioner followed the procedural requ irements of section 7.10 of

the SPALC agreement, by conducting an investigation in early 2013

upon request of the Lexington principal, by providing the

investigative file to Respondent and her union representative in

advance of the predetermination confere nce, and by conducting a

predetermination conference on March 14, 2013, at which Respondent

and her representative had the opportunity to respond to the

investigation material. The result of that process was the

Petition, and Respondent has had every oppo rtunity in this

proceeding to put Petitioner to its burden of proof and to present

evidence in defense of the charges against her.

70 . As is evident to some extent from the hearing

transcript, Respondent ' s testimony and demeanor at hearing only

served to corroborate the testimony of Lexington personnel

describing Respondent ' s chronic misbehavior. Despite numerous

instructions by the undersigned and by Respondent ' s own lawyer,

Respondent comported herself as follows: she would not listen to

questions; sh e gave answers that did not match the questions or

that went far beyond the questions; she criticized questions

directed to her instead of answering; she repeatedly offered

comments when there was no pending question; she repeatedly

interrupted; she was an gry and belligerent at times, and impatient

at other times, at one point announcing to her own lawyer in the

middle of his questioning: " I want to go home. " 7/ Respondent ' s

lack of self - control on display at hearing added credence to the

testimony of nume rous witnesses describing Respondent ' s chronic

misbehavior that was at the heart of the charges against her.

CONCLUSIONS OF LAW

71 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 1 20.569, 120.57(1), and 120.65(6), Fla. Stat.

7 2 . In this proceeding, Petitioner seeks to terminate

Respondent ' s employment. Petitioner bears the burden of proof,

and the standard of proof is by a preponderance of the evidence.

§ 120.57(1)(j); McNeill v . Pinellas Cnty. Sch. Bd. , 678 So. 2d

476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 569

So. 2d 883 (Fla. 3d DCA 1990).

7 3 . Respondent is an educational support employee. Section

1012.40(2)(b), Florida Statutes, provides that educational

s upport employees such as Respondent may be terminated only " for

reasons stated in the collective bargaining agreement. "

7 4 . The SPALC agreement provides that any discipline that

constitutes " a verbal warning, letter of warning, letter of

reprimand, suspen sion, demotion or termination shall be for just

cause. " SPALC agreement, § 7.10. The SPALC agreement does not

define " just cause. " Id. With regard to the concept of

progressive discipline, the SPALC agreement states only generally

that discipline " shal l be, when appropriate, progressive in

nature. " Id.

7 5 . Petitioner has construed just cause for purposes of

discipline pursuant to the SPALC agreement in the same manner as

in section 1012.33 relating to instructional staff. The parties

stipulated that " just cause " should be interpreted in accordance

with the following language in section 1012.33(1)(a):

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, . . .

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.

7 6 . Florida Administrative Code Rule 6A - 5.056 contains the

definitions of the terms used in section 1012.33(1)(a). The rule

definitions pertinent to the charges against Respondent are as

follows:

(2) " Misconduct in Office " means one or more

of the following:

* * *

(c) A violation o f the adopted school board

rules[.]

* * *

(3) " Incompetency " means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) " Inefficiency " means one or more of the

following:

1. Failure to perform duties prescribed by

law;

2. Failure to communicate appropriately with

and relate to students;

3. Failure to communicate appropriately with

and relate to colleagues, administrators,

subordinates, or parents;

4. Disorganization of h is or her classroom

to such an extent that the health, safety or

welfare of the students is diminished; or

5. Excessive absences or tardiness.

(4) " Gross insubordination " means the

intentional refusal to obey a direct order,

reasonable in nature, and g iven by and with

proper authority; misfeasance, or malfeasance

as to involve failure in the performance of

the required duties.

(5) " Willful neglect of duty " means

intentional or reckless failure to carry out

required duties.

7 7 . The Petition charged R espondent with willful neglect of

duties, gross insubordination, incompetence, failure to adhere to

high ethical standards, and failure to satisfactorily and

efficiently perform assigned job duties.

7 8 . Based on the Findings of Fact above, Petitioner met its

burden of proving that Respondent is guilty of willful neglect of

her duties, by intentionally failing to carry out her required

duties. Respondent knowingly wasted time at work engaging in

inappropriate communications, criticizing, disrespecting, and

arguing with her supervisors, instead of doing her work.

Respondent ' s intentional misbehavior caused her to fail to

complete her assigned duties by the end of her shift.

7 9 . Based on the Findings of Fact above, Petitioner met its

burden of proving that Respondent is guilty of gross

insubordination, by her repeated " intentional refusal to obey a

direct order, reasonable in nature, and given by and with proper

authority. " Respondent takes the position that she could not be

guilty of being insubordinate to the head custodian, because he

did not have the " proper authority " to give her direct orders.

As found above, the evidence established otherwise. In any

event, Respondent plainly is guilty of gross insubordination in

her interactions with Mr. Farmer, wh o was admittedly Respondent ' s

supervisor with proper authority to give her direct orders and to

expect compliance with them. Moreover, Respondent is also guilty

of having been grossly insubordinate to Ms. Caprarotta, even

though Respondent was not as rude or confrontational in the ways

in which she refused to carry out Ms. Caprarotta ' s direct orders.

Respondent may have been nicer or more polite to Ms. Caprarotta ' s

face, but that does not detract from the fact that Respondent

repeatedly refused to carry o ut Ms. Caprarotta ' s direct orders.

8 0 . Petitioner also met its burden of proving that

Respondent is guilty of incompetence , by failing to discharge her

required duties as a result of her " inefficiency , " as defined in

rule 6A - 5.056(3). Respondent ' s PRO co nceded that " there were

instances when Respondent was less than efficient and failed to

perform certain duties. " As found above, the evidence d oes not

support Respondent ' s theory that her failure to perform her

assigned duties was justifiable or excusable due to Respondent

being overburdened, either because of absences of other

custodians or for any other reason. Instead, Petitioner proved

that Respondent ' s intentional misbehavior was at the core of her

failure to discharge her required duties . Responden t spent her

days miscommunicating, misbehaving, and disrespecting those with

whom she was required to work, listen to, and respect. The time

Respondent wasted engaging in misbehavior was time that she

needed, and should have used, to complete her assigned cleaning

duties. This chronic inefficiency caused her to fail to

discharge her required duties.

81 . The last two charges in the Petition are based on

alleged violations of rules adopted by Petitioner. If

established, the rule violations would constitu te " misconduct in

office " as defined in rule 6A - 5.056(2)(c). According to the

Petition, the first alleged rule violation is based on

Petitioner ' s rule 5.02, which allegedly requires that employees

such as Respondent dedicate themselves to high ethical sta ndards.

Petitioner did not prove the existence or contents of its adopted

rule 5.02. In any event, the description of the rule in the

Petition is of an aspirational goal that is too vague to

proscribe particular conduct and to put employees on notice of

the standard to which they must conform their conduct. The

charge under this general aspirational standard adds nothing to

the previous specific charges. The undersigned declines to find

Respondent guilty of violating the aspirational standard that is

al legedly codified in Petitioner ' s rule 5.02.

8 2 . The final charge in the Petition -- failing to

satisfactorily and efficiently perform assigned job duties -- does

not identify any statute or rule allegedly violated. According

to Petitioner ' s PRO, the charge i s intended to assert a violation

of Petitioner ' s adopted rule 5.29. The undersigned declines to

find Respondent guilty of violating a provision that is allegedly

codified in Petitioner ' s rule 5.29. The rule was not identified

in the Petition, and neither the rule ' s existence nor its

contents were established in this record. In any event, the

substance of the charge seems redundant with the charge of

incompetence previously addressed.

8 3 . Respondent contends that Petitioner failed to follow

the SPALC agr eement ' s requirements for discipline, by not

initiating separate investigations or taking separate actions for

each discrete episode of insubordination and inadequate job

performance that occurred after Respondent ' s 2012 investigation

was concluded. Respo ndent contends that this would have allowed

her to address the problems with her performance and behavior,

and to have progressive discipline imposed, rather than saving up

all of the transgressions for one action. This argument is

rejected. Respondent h as had the benefit of a decade of

warnings, progressive discipline, and more than ample

opportunities to conform her performance and behavior to the

expectations that were clearly laid out for her over and over

again. Section 7.10 of the SPALC agreement r equires that a

certain process be followed prior to taking disciplinary action.

As found above, Petitioner followed the required process in

conducting the 2013 investigation that was the precursor to this

administrative hearing.

8 4 . Respondent also conte nds that Petitioner ' s action is

improper retaliation against Respondent for " prevailing " in the

2012 investigation by " only " receiving a written reprimand for

excessive absenteeism. No improper retaliation was proven.

Moreover, as found above, the record does not support

Respondent ' s contention that she " prevailed " in the 2012

investigation. The 2012 investigation culminated in a

determination of probable cause to take disciplinary action. In

keeping with the progressive action concept set forth in the

SPALC agreement, the action Petitioner decided to take was a

combination of formal discipline and informal action. Petitioner

worked in conjunction with Respondent ' s union representative to

" coach " Respondent to try to teach her how to communicate better

and relate to others more appropriately. Petitioner reasonabl y

attempted a progressive approach, in the hope that Respondent

would take th e coaching attempt seriously and avoid harsher

disciplinary action. However, just as Respondent ignored prior

warnin gs, Respondent refused to accept coaching and refused to

change her behavior.

8 5 . Petitioner has met its burden of proving ample good

cause for the termination of Respondent ' s employment. Indeed,

the undersigned concludes that Respondent ' s persistent dis play of

gross insubordination would have been sufficient just cause to

warrant termination under the circumstances. Respondent was put

on notice time and time again, spanning over a decade, that such

inappropriate behavior, directed by Respondent to no le ss than

half a dozen different supervisors, would not be tolerated.

Respondent cannot deflect the blame by accusing her current

supervisors of provoking her; her attempted proof failed in this

regard, and her track record confirms that the blame belongs

s quarely on her own shoulders.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Lee County School Board enter a

final order terminating the employment of Barbara Rice.

DONE AND ENTERED this 20 th day of December , 2013 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 20 th day of December , 2013 .

ENDNOTE S

1/ All statutory references are to the Florida Statutes (2013).

It is noted that Petit ioner ' s statutory authority to terminate

Respondent ' s employment and to suspend Respondent pending the

outcome of this proceeding has not changed during the time period

relevant to the allegations in the Petition.

2/ Respondent attempted to cast the 2012 investigation and

resulting letter of reprimand as implicitly reflecting

Petitioner ' s determination that there was insufficient cause to

terminate Respondent ' s employment based on her disrespectful and

insubordinate behavior. However, there was no such

d etermination. The only determination was that there was

probable cause to take disciplinary action against Respondent.

" Just cause " is the standard for any form of discipline under

section 7.10 of the SPALC agreement. Although the " just cause "

standard applies to disciplinary investigations, considerations

of progressive discipline and alternatives to discipline may

shape the action taken at the conclusion of an investigation.

Where just cause exists, section 7.10 of the SPALC agreement

provides that " a ctions shall be when appropriate, progressive in

nature and may include, but are not limited to, verbal warning,

letters of warning and reprimand, suspension without pay,

retraining or other assistance and termination from employment. "

(emphasis added). The joint attempt by the union and the

district to retrain or coach Respondent to curb her misbehavior

was consistent with this provision.

3/ Respondent attempted to prove that reports of her inadequate

cleaning, such as Mr. Farmer ' s November 20, 2012, b athroom

inspection report, may have result ed from poor cleaning by other

custodians on nights when Respondent was absent , or from

Respondent being overburdened on nights when other custodians

were absent. The attendance records in evidence, however, show

that Respondent was working on November 19, 2012, as were all

other custodians, so absenteeism could not excuse Respondent ' s

failure to clean the bathrooms well on November 19, 2012.

4/ Respondent ' s criticism was not only very disrespectful to

Mr. Hanc ock, but it also demonstrated her clear unwillingness to

perform cleaning duties that were part of a custodian ' s job.

Respondent ' s view was that to make it easier for the custodian,

Mr. Hancock should have not required that the courtyard be

cleaned until after the PTO meeting, because the teachers and

parent s would just mess it up again. While that would have meant

less custodial work, it also would have meant that the PTO

meeting would be held in a dirty courtyard that needed cleaning

after it had been u sed by the students that day. Instead, it was

reasonable for the head custodian to require that the courtyard

be cleaned before the PTO meeting, even if that meant the

courtyard would have to be cleaned again after the meeting. The

record is replete with similar examples of Respondent complaining

when she is only being told to do her job, and blaming others for

her failure to do her job. For example, when Respondent ' s

assigned classrooms were found dirty before the winter break in

December 2012, Mr. Farm er tried to address the problems with

Respondent, but her reply was that " these teachers need to stop

doing stuff in these classrooms to make them so dirty. "

5/ Section 7.10 of the SPALC agreement, addressing discipline,

provides two parallel tracks for investigating allegations of

employee misconduct or unsatisfactory job performance. The

allegations can be reviewed at the school level, and after the

employee and his or her union representative are given an

opportunity to respond to the allegations, any resulting

discipline or other action is imposed by the " site based

administrator. " Alternatively, at the request of the site based

administrator, the allegations can be reviewed in an

investigation conducted by the district ' s DPSE if the allegations

of e mployee misconduct or unsatisfactory job performance could

result in suspension without pay or termination of employment.

Similar to the school - level disciplinary process, the employee

and union representative are given an opportunity to review the

invest igation material and respond to the allegations, and any

resulting discipline or other action is imposed by Petitioner.

Under either of these parallel tracks for investigating

allegations of misconduct or job performance, the SPALC agreement

provides that " [d]uring the investigation the District may

temporarily reassign the employee. "

6/ In accordance with instructions from the district ' s human

resources department, Ms. Caprarotta prepared a " final

performance evaluation " for Respondent for the 2012 - 2013 contract

year. The evaluation reflected the continued deterioration of

Respondent ' s behavior and job performance, consistent with the

testimony and findings herein.

7/ Respondent ' s counsel displayed remarkable patience under

trying circumstances . He had t o repeatedly instruct his client

along the lines of the following examples : " Listen to the

question " ; " You have to let me finish " ; " Let me stop you for a

minute. I don ' t want to talk over you, but like the Judge said,

try to focus on the question I was asking. Okay? " " Let ' s take it

a step at a time, okay? " " Well, let ' s start at the beginning.

Listen to me. " " But Barbara, I ' m trying to ask you -- " " Let me

stop you. " " What I ' m trying to understand, Barbara, is -- "

" Wait, wait. We ' re talking over each other. " " Let me interrupt,

I ' m sorry, just to kind of move it forward. " " I mean, you tell

us. I don ' t know, Barbara. I ' m asking you to explain. "

" Barbara, stop. We ' re getting off point, okay? I need to

redirect you because we ' re not going to ge t done in time. " " Let

me stop you. " " Let me finish the question. " " I ' ve got to move

forward. " " Wait , let me finish the question. "

COPIES FURNISHED:

Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902

Robe rt Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

Robert Edwards, Superintendent

Lee County School Board

363 Northeast Crawford Street

Mayo, Florida 32066 - 5612

Matthew Carson, General Counsel

Departm ent of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF R IGHT 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 cas e.