STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD )

)

Petitioner, )

)

vs. ) Case No. 07-0561

)

AMY MARIE UTRERA, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on March 23, 2007.

APPEARANCES

For Petitioner: Ana I. Segura, Esquire

Janeen R. Richard, Esquire Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132 For Respondent: no appearance

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to terminate Respondent, a noninstructional employee.

PRELIMINARY STATEMENT

By letter dated January 18, 2007, Petitioner informed Respondent that it had suspended her without pay and initiated dismissal proceedings against her. The letter cites as reasons

for these actions Respondent's nonperformance and deficient performance of job duties, in violation of School Board Rules 6Gx13-4A-1.21, 6Gx13-4A-1.213, and 6Gx13-4E-1.01.

Respondent timely requested a formal hearing.

By Notice of Specific Charges filed March 21, 2007, Petitioner provided a more detailed statement of the bases for the termination. The notice states that Respondent is an "educational support employee," as defined in Section 1012.40, Florida Statutes, so her employment may be terminated for reasons set forth in the collective bargaining agreement. The notice states that the collective bargaining agreement provides for termination for "just cause," which includes the grounds stated in Florida Administrative Code Rule 6B-4.009.

The notice alleges that Respondent has a long history of absenteeism and tardiness and recites various interventions, including five conferences for the record and four letters of reprimand. The result of the fifth conference for the record was the dismissal that is the subject of this case.

The notice alleges that Respondent's repeated absences and tardies constitute nonperformance of duties, willful neglect of duty, gross insubordination, and violations of School Board Rules 6Gx13-4E-1.01, 6Gx13-4A-1.21, and 6Gx13-4A-1.213.

At the hearing, Petitioner called two witnesses and offered into evidence 26 exhibits: Petitioner Exhibits 1-4, 6-8, 10-12,

14-15, 17-20, 22-24, 26, 28-29, 31, and 33-35. All exhibits

were admitted.

The court reporter filed the transcript on May 7, 2007.

Petitioner filed its Proposed Recommended Order on May 17, 2007.

FINDINGS OF FACT

1. Petitioner hired Respondent in December 2002 to provide clerical services at Sunset Elementary School, where she worked until she was suspended, as described below. Sunset Elementary School is a magnet school that receives more applications than it can accept. At all material times, Respondent was the sole magnet clerk, who handled the vast amount of paperwork through the recruitment/application process that runs annually from October 1 through January. These duties included ensuring that the paperwork was accurate and scheduling interviews with candidates. Under her 12-month contract, Respondent was required to perform her duties from 8:30 a.m. to 4:30 p.m. daily.

2. A new principal arrived at Sunset Elementary School for the 2003-04 school year. Immediately, Respondent began having problems with attendance, arriving late or not at all. At first, the principal spoke with Respondent informally, reminding her of her duties and the importance that she arrive at work on time every day. When informal discussions failed to result in any improvement, the principal sent Respondent a memorandum

   dated September 24, 2003, identifying seven absences for various reasons and six tardies. The memorandum requires Respondent to provide advance notice of absences and a physician's note for absences due to illness.

3. This intervention was ineffective. By memorandum dated April 16, 2004, the principal detailed 21 additional absences or tardies during the same school year since the prior memorandum. These absences included seven consecutive school days in April. As the principal testified, the main purpose of this memorandum was to learn if Respondent had quit.

4. By memorandum dated July 21, 2004, the principal reprimanded Respondent for her excessive absences and tardies during the preceding school year.

5. Respondent's attendance was not satisfactory the following school year. By memorandum dated April 14, 2005, the principal again reprimanded Respondent for repeated absences and tardies and failure to comply with the directives from the preceding school year. Since the memorandum of July 21, 2004, Respondent had been absent, tardy, or left early 43 times. In the six weeks since the April 14, 2005, reprimand, Respondent missed all or part of six days of work. By memorandum dated May 25, 2005, the principal reprimanded Respondent for gross insubordination due to the six absences or tardies since the April 14 memorandum.

6. Again, Respondent failed to respond to these interventions. During the 2005-06 school year, she was absent

   45 times, as advised by memorandum to her from the principal dated June 12, 2006. By memorandum dated June 13, 2006, from the principal, Respondent was again reprimanded for her absences and tardies during the preceding school year.

7. On October 13 and 19, 2006, Respondent failed to appear at work without prior (or subsequent) authorization. Petitioner conducted a conference for the record on November 7, 2006, at which its representatives discussed with Respondent her noncompliance with attendance rules. By memorandum dated November 21, 2006, from the principal to an assistant superintendent, the principal recommended dismissal of Respondent for gross insubordination and unsatisfactory attendance.

8. By letter dated December 20, 2006, the assistant superintendent informed Respondent of her intention to ask Petitioner, at its January 17, 2007, meeting, to suspend Respondent without pay and initiate dismissal proceedings against her, unless Respondent requested a hearing within 20 days. Respondent timely requested a hearing.

9. Article XXI, Section 3.D of the applicable collective bargaining agreement applies to "educational support employees" and provides:

   Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

11. Respondent is an "educational support employee," pursuant to Section 1012.40(1)(a), Florida Statutes. Not a probationary employee, Respondent may be terminated for any reason set forth in the collective bargaining agreement. As noted above, the agreement provides for termination for just cause, which includes gross insubordination.

12. Florida Administrative Code Rule 6B-4.009(4) provides: "Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority."

13. Petitioner has the burden of proving the material allegations by a preponderance of the evidence. Dileo v. School

    Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

14. Petitioner has proved just cause in terminating Respondent due to her repeated absences and tardies and due to her gross insubordination in failing to comply with repeated directives to improve her attendance and otherwise comply with simple attendance requirements.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment.

DONE AND ENTERED this 22nd day of May, 2007, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2007.

COPIES FURNISHED:

Dr. Rudolph F. Crew Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1308

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Ana I. Segura, Esquire Janeen R. Richard, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Amy Marie Utrera

1201 Southwest 124th Court, Unit C Miami, Florida 33184

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 07-000561

Orders for Case No: 07-000561