vs.
Case No. 19-0239
CARLA D. MCCRAY,
Respondent.
Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Mary Li Creasy by video teleconference with locations in Miami and Tallahassee, Florida, on March 1, 2019.
For Petitioner: Christopher J. La Piano, Esquire
For Respondent: Catherine A. Riggins, Esquire
Whether Miami-Dade County School Board ("MDCSB") had just cause to suspend and recommend the termination of Respondent,
Carla McCray's ("McCray" or "Respondent"), employment for the reasons set forth in the agency action letter dated December 20, 2018.
On December 18, 2018, at its scheduled meeting, MDCSB took action to suspend and terminate McCray from her position as a school security monitor at Miami Senior High School ("MSHS").
McCray timely requested an administrative hearing. MDCSB referred the matter to the Division of Administrative Hearings ("DOAH") on January 14, 2019, to assign an Administrative Law Judge to conduct the final hearing. The final hearing was set for March 1, 2019, and was heard as scheduled.
At the final hearing, MDCSB presented the testimony of the following: Dwight Arscott, Assistant Principal, MSHS;
Benny Valdes, Principal, MSHS; and Carmen Molina, District Director, Office of Professional Standards ("OPS"). MDCSB Exhibits 1 through 10 and 15 through 25 were received into evidence.
McCray testified on her own behalf and offered the testimony of Evelyn Dopico, former mathematics teacher and union steward at MSHS. McCray's Exhibits 1 through 8 were admitted into evidence.
April 17, 2019. MDCSB requested and was granted an extension of
time for the parties to file proposed recommended orders. The parties timely filed proposed recommended orders, which were given consideration in the preparation of this Recommended Order.
Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged violations.
MDCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida.
At all times material to this case, McCray was employed by MDCSB as a school security monitor at MSHS, a public school in Miami-Dade County, Florida, and served in that capacity since 1998.
Respondent's employment with MDCSB is governed by Florida law, MDCSB's policies, and the collective bargaining agreement ("CBA") between MDCSB and the United Teachers of Dade Union.
As a school security monitor, McCray's duties included assisting students, assisting with student/staff altercations, protecting the school from intruders, and to generally protect the safety of everyone in the school.
The proposed discipline is based upon McCray's repeated refusal to submit for a fitness-for-duty evaluation after repeated instructions to do so.
Facts Giving Rise to the Fitness-for-Duty Evaluation Request
In March 2018, the Office of Professional Standards ("OPS") for Miami-Dade County Public School ("MDCPS") received a call from Marian Lambeth, the Chief of the Professional Practices Commission of the Florida Department of Education. She advised OPS that McCray sent the Commission correspondence entitled "Criminal Misconduct Complaints and Willful Violations," which was 322 pages. The lengthy, repetitious, and disjointed correspondence describes a variety of alleged "cyber internet crimes," including inter cyber-bullying, cyber- harassment, and cyber-stalking. The voluminous "complaint" lists alleged infractions dating back for at least ten years. This bizarre document caused OPS and District Director
Carmen Molina to be concerned for McCray's well-being and essentially put McCray on the District's "radar."
McCray previously made similarly odd computer-related complaints in December 2016 to Assistant Principal
Dwight Arscott. She told him people were taking control of computers she was using and logging her out of District computers. Mr. Arscott contacted the MSHS Information Technology Services ("ITS") department and also school police.
McCray's complaint was investigated and found to be without any merit.
McCray again made similar complaints to Mr. Arscott in January 2017, and this time he referred her to school police because, in McCray's opinion, ITS had not done a sufficient job of investigating the matter. Again, no problem was discovered regarding McCray's district-issued computers or accounts.
At the start of the 2018-2019 school year, McCray expressed to Mr. Arscott that she did not feel safe using school email systems and requested that he contact her through her personal Yahoo email address. She expressed that she did not want to use the District email because she was being
cyber-bullied and harassed and did not feel safe using it. As a result she was experiencing "distress."
McCray memorialized her concerns in emails she sent to Mr. Arscott and other MSHS administrators beginning in August 2018. In one such email, Respondent stated that she was experiencing "overwhelming of emotional, psychological and spiritual distressed." She also stated, "I wasn't feeling in
the best of wellness, for the same aforementioned reasons." She also requested a meeting with Mr. Arscott after her "wellness recovery." Mr. Arscott accommodated Respondent and gave her some time off. At the meeting she requested a personnel
investigation, and Mr. Arscott explained to her that that process did not apply to her computer-related complaints.
The emails from McCray caused Mr. Arscott to worry about Respondent's well-being. Additionally Mr. Arscott was concerned that a security monitor was making these complaints, because security monitors are responsible for protecting the school and alerting administration to potential security issues.
MSHS is charged with educating and supervising over 3,000 students. Security monitors are relied upon to be the administration's "eyes and ears" at the school. MSHS Principal Benny Valdes shared the same concerns regarding McCray's communications because her self-described "emotional distress" could affect the safety of everyone at the school, including the students, staff, and McCray.
On September 20, 2018, at 6:59 p.m., McCray sent yet another email to Mr. Arscott complaining of harassment, bullying, stalking, discrimination, safety violations, and security violations. She also claimed to be experiencing medical difficulties, including abrupt panic attacks, breathing problems, chest pain, and having to depart work early to immediately seek medical attention. The verbiage of the email is jumbled, disjointed, and nonsensical.
Mr. Arscott was concerned, particularly by the alleged "safety concerns," because they were not detailed in the email.
When he attempted to speak with McCray about her allegations, she provided no details. Mr. Arscott knew McCray left school a couple times to see doctors and his concerns were growing.
In her September 20, 2018, email, McCray copied numerous other public officials and entities having nothing to do with MDCPS, including the Miami-Dade State Attorney, the FBI, Governor Rick Scott, and Senators Marco Rubio and Bill Nelson.
On September 21, 2018, at 9:49 p.m., a similar email was sent to Mr. Arscott once again and a similar list of public officials was copied by McCray. In this email McCray requested copies of the documentation pertaining to her computer complaints. Apparently the ones she had been previously provided by Mr. Arscott were not "visually sufficient" for her.
On September 24, 2018, at 5:39 a.m., McCray sent another similar email to Mr. Arscott and, once again, copied a seemingly random list of public officials. Then again on September 26, 2018, at 5:40 a.m., McCray sent another similar email to Mr. Arscott, as well as various public officials.
Mr. Arscott estimated that there were 30 or more of these repetitious and bizarre emails sent by McCray between September 20 and 26, 2018. At or about the same time one morning, McCray also texted Mr. Arscott with her concerns
46 times between approximately 5:00 a.m. and 6:00 a.m. Trying to address all of McCray's repetitive requests, sent virtually
at all hours of the day and night, took Mr. Arscott away from his other duties at the school.
As a result of these communications and their concerns for both Respondent and the school, both Mr. Arscott and
Mr. Valdes supported the decision to send Respondent for a fitness-for-duty evaluation. Mr. Valdes also stated that he would not be comfortable with Respondent returning to MSHS. The Fitness-for-Duty Process
School Board Policy 4161--Fitness for Duty, applies to noninstructional personnel, which includes security monitors. The fitness policy refers to the applicable CBA. Article XXI(F) of the CBA dictates that at the request of administration, an employee can be sent for a psychological or psychiatric examination or test upon a written statement of the need for such an examination.
District Director Carmen Molina testified that the District was first alerted of concerns for McCray's
well-being when Marian Lambeth called and provided OPS with a copy of McCray's 322-page complaint in March 2018. These concerns were amplified when McCray began sending emails to MSHS administration describing various forms of distress she was experiencing. Much like Mr. Arscott and Mr. Valdes, Ms. Molina was concerned that a security monitor was making these complaints and allegations. Understanding the role of security
monitors at a school, she too supported sending McCray for a fitness-for-duty evaluation.
As a result of the administration's well-founded concerns, on September 27, 2018, a Conference for the Record ("CFR") was held with McCray and two union representatives concerning sending McCray for a fitness-for-duty evaluation. When McCray arrived for the CFR, Ms. Molina handed her an envelope that contained a written description of why she was being sent for a fitness evaluation. Ms. Molina explained to her both in writing and verbally that she was being sent for the evaluation because of her repeated complaints about cyber- bullying and her claims of emotional, psychological, and spiritual distress. The reasons for the evaluation were also memorialized in the CFR summary Ms. Molina drafted and presented to McCray.
At the CFR, McCray wanted the meeting postponed for lack of union representation, yet this claim had no basis because two union representatives were present. McCray asked Ms. Molina what the basis for the fitness determination was and Ms. Molina advised her that it was because of the frequency and the content of the emails she was repeatedly sending.
Ms. Molina even presented her with an email dated September 26, 2018, and asked McCray if she sent it. McCray replied that
"it looked familiar."
During the CFR, Ms. Molina directed McCray to go to the fitness-for-duty evaluation and provided her with a list of clinical evaluators from which to choose three. McCray refused to sign this referral document, as well as the written basis for the fitness determination. It was explained to her that going to the fitness-for-duty evaluation was a condition of her continued employment and that if she refused, it would be considered insubordination. McCray was given until
September 28, 2018, to call Ms. Molina with her selected evaluators, but she never made the call. After this meeting, McCray was placed on "alternate assignment" and remained at home with full pay.
When McCray did not call Ms. Molina as directed to schedule the fitness evaluation, another CFR was scheduled for October 4, 2018. Ms. Molina testified that McCray was given more than two day's notice for this second CFR and emailed the notice to her preferred Yahoo email account. McCray did not attend this CFR. However, the written summary of this CFR, which once again contained written directives to schedule the fitness-for-duty appointment, was sent to McCray.
McCray failed to select her choices of evaluators for the second time and, as a result, a third CFR was held on October 15, 2018. Despite her refusal to participate in the fitness process, McCray continued to send a barrage of bizarre
emails. McCray attended this CFR and was once again directed by Ms. Molina to go for a fitness evaluation. This was the third time McCray received these directives in writing and the second time Ms. Molina gave them verbally.
During this CFR, McCray was once again presented with a list of doctors to choose from and she again refused to sign it. McCray was also advised that her continued refusal to go for the fitness evaluation was gross insubordination. McCray repeatedly said, "I heard you" when Ms. Molina spoke to her.
In early November 2018, there was a fourth CFR held with McCray that she attended and was once again given a chance to participate in the fitness process. Again, she refused.
On November 29, 2018, McCray was given a fifth and final opportunity to participate in the fitness-for-duty process at her meeting prior to board action. It was explained to her by Ms. Molina, Ms. Molina's supervisor, Dr. Jimmie Brown, and then Associate Superintendent Joyce Castro that she would have to go for the fitness evaluation or be terminated. McCray still refused to go. McCray was also presented with an entire copy of her disciplinary file by Ms. Molina.
On December 18, 2018, McCray was emailed and sent via certified mail a letter that informed her that her termination was going to be recommended at the December 19, 2018, MDCSB meeting. On December 20, 2018, McCray was emailed and sent via
certified mail a letter that informed her that MDCSB had taken action to terminate her employment.
McCray's Arguments
McCray argues that termination is inappropriate because she did not receive sufficient advanced notice of the first CFR, as required by the CBA, and she was not given a valid reason for the need for the fitness-for-duty evaluation. McCray also argues that MDCSB's failure to provide a Notice of Specific Charges prior to her termination deprived her of due process.
Notice of the First CFR
Article XXI, Section 1, A(3) of the CBA governing the terms of McCray's employment provides that, "Employees shall be given two days' notice and a statement of the reason for the conference, except in cases deemed to be an emergency."
MDCSB alleges that the September 27, 2018, CFR was an emergency justifying the lack of advance notice. McCray contends that there was no emergency because MDCSB became concerned about McCray's mental health after receiving her
322-page complaint letter in March 2018.
Although the March 2018 complaint raised concerns regarding McCray's well-being and mental stability, it was her ongoing and ever-increasing barrage of bizarre, and often incomprehensible, emails to numerous individuals in which she expressed concerns about her own safety and stability that
escalated the situation to an emergency. Despite the lack of advanced notice, McCray had two union representatives present at this first meeting to assist her with the process. Accordingly, MDCSB was justified in calling the initial emergency CFR without two days' advance notice.
Reason for the Evaluation Request
Contrary to McCray's assertion that she was asked to submit to a psychological evaluation based solely upon "too many emails," MDCSB repeatedly explained verbally and in writing to McCray that it needed the evaluation based on the volume and
content of those emails. In the emails, McCray complained of unspecified harassment, bullying, stalking, discrimination, unspecified safety violations, and security violations that she claimed were causing her abrupt panic attacks, breathing problems, chest pain, and causing her to seek medical assistance.
At each CFR and in the CFR summaries, McCray was advised that MDCSB wanted her to participate in a fitness-for- duty examination because of her own complaints of school-related "emotional, psychological, and spiritual" distress.
Notice of Specific Charges
McCray points out that she was not provided with a Notice of Specific Charges until February 18, 2019, only 11 days
prior to the final hearing and approximately two months after MDCSB's termination recommendation.
Due process required that McCray be provided notice and an opportunity to be heard prior to suspension or termination and the right to a post-termination evidentiary hearing.
Prior to termination, McCray was given five notices of CFRs and at least three CFR summaries explaining the need for her to participate in a fitness-for-duty evaluation, and that failure to do so was a violation of MDCSB policy and insubordination.
McCray was also notified on December 18, 2018, by email and in writing, that MDCSB intended to recommend her suspension without pay and dismissal for just cause, "including but not limited to: gross insubordination; and violation of School Board Policies 4161, Fitness for Duty, 4210, Standards of Ethical conduct, and 4210, Code of Ethics."
Despite being provided multiple opportunities prior to termination to explain her basis for fearing for her safety and refusal to attend a fitness-for–duty evaluation, McCray refused to do so.
After the MDCSB meeting on December 19, 2018, at which McCray was recommended for suspension without pay and dismissal, she was provided notification of the action by letter dated
December 20, 2018, which mirrored the basis for discipline contained in the December 18, 2018, letter. This notification also provided her with notice of how to contest the proposed action.
MDCSB policies do not specify a time frame within which a Notice of Specific Charges must be issued for non- instructional employees. At no time prior to the issuance of the Notice of Specific Charges did McCray request any further explanation. There is no record of any pre-hearing discovery request by McCray regarding the specific factual or legal basis for the termination. It should be noted that the Notice of Specific Charges identifies violations of MDCSB Policy 4161— "Fitness for Duty" and "Gross Insubordination"--the same reasons for proposed discipline identified prior to the MDCSB action of December 19, 2018.
McCray was provided a full evidentiary hearing at the final hearing of this matter. McCray received all pre and
post-termination due process to which she was entitled.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of these proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes (2018).
Because MDCSB, acting through the superintendent, seeks to terminate McCray's employment, which does not involve
the loss of a license or certification, MDCSB has the burden of proving the allegations in its Notice of Specific Charges by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. See McNeill v.
Pinellas Cty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen
v. Sch. Bd. of Dade Cty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cty., 569 So. 2d 883 (Fla. 3d
DCA 1990).
The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law
Dictionary 1201, 7th ed. (1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v.
Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997))
(quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).
As a full-time school security monitor, McCray was, at all times material to this matter, a non-instructional "educational support employee" as defined by section 1012.40(1)(a), Florida Statutes. Pursuant to section 1012.40(2)(b), the employment status of an "educational support employee," such as McCray, must continue "from year to year unless the district school superintendent terminates the employee for reasons stated in the collective bargaining agreement "
In accordance with CBA Article V, Section 1, MDCSB has the right to discipline or terminate employees for "just cause."
The CBA does not define "just cause," but the term is well-known in Florida education law. The definition provided in section 1012.335(5), which governs directly in matters concerning contracts with instructional personnel but is applicable here as persuasive authority, states that:
[J]ust cause includes, but is not limited to:
Immorality.
Misconduct in office.
Incompetency.
Gross insubordination.
Willful neglect of duty.
Being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
MDCSB's Notice of Specific Charges alleges that Respondent is guilty of (I) Misconduct in Office, and (II) Gross Insubordination. Whether an employee committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v.
Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.
Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
Misconduct in Office
In accordance with State Board Rule 6A-5.056(2), "Misconduct in Office" means one or more of the following:
(a) a violation of the adopted school board rules; (b) behavior that disrupts the student's learning environment; or
(c) behavior that reduces the teacher's ability or his or her colleague's ability to effectively perform duties.
MDCSB Policy 4161--Fitness for Duty provides that support staff may be directed to submit to an appropriate examination by a health care provider in accordance with the applicable CBA. As discussed in greater detail above, McCray refused to submit to this reasonable request for examination on five separate occasions over a period of almost three months. During this period, McCray was paid her full salary while sitting at home.
MDCSB established, by a preponderance of the competent, credible, and persuasive evidence, that McCray's actions in this case constitute misconduct in office, as defined in rule 6A-5.056(2), which incorporates School Board Policy 4161--Fitness for Duty, and constitute just cause for termination.
Gross Insubordination
Pursuant to State Board Rule 6A-5.056(4), "Gross Insubordination" means the intentional refusal to obey a direct
order, reasonable in nature, and given by and with proper authority.
McCray was directed on five occasions to identify three doctors from the provided list so that a fitness-for-duty evaluation could be scheduled for her. McCray had over two months to comply with these reasonable directives, given with proper authority. McCray refused to do so. MDCSB demonstrated by a preponderance of the evidence that McCray's conduct, as described herein, constitutes gross insubordination and provides just cause for dismissal.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Carla McCray guilty of misconduct in office and gross insubordination and upholding her termination from employment.
DONE AND ENTERED this 3rd day of June, 2019, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2019.
Christopher J. La Piano, Esquire Miami-Dade County School Board
Catherine A. Riggins, Esquire
Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast 2nd Avenue, Suite 912
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
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.
