STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF MIAMI-DADE )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 98-3885

)

THESLIE A. SESSIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 26 and 27, 1999, by video teleconference with the parties appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Luis M. Garcia, Esquire

Attorney’s Office

School Board of Dade County, Florida 1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent: Theslie A. Sessions, pro se

1348 Northwest 95th Street, No. 301

Miami, Florida 33147 STATEMENT OF THE ISSUE

Whether the Respondent should be terminated from her employment with the Dade County School District.

PRELIMINARY STATEMENT

This case began on August 26, 1998, when Petitioner, the School Board of Dade County, Florida, took action to terminate Respondent, Theslie A. Sessions, from her employment with the school district. Thereafter Respondent timely disputed the proposed action and the matter was referred to the Division of Administrative Hearings for formal proceedings.

Petitioner initiated the termination proceedings for just cause based upon Respondent’s alleged incompetency, gross insubordination, and willful neglect of duty. The specific charges of the allegations pending against Respondent were filed on November 30, 1998.

At the hearing Petitioner presented testimony from the following witnesses: Dr. Fred Pullum, principal at Coral Gables Adult Education Center (Coral Gables AEC); Alonzo Kilpatrick, an assistant principal at Coral Gables AEC; Isaac Rodriguez, director in the Office of Professional Standards for Petitioner; and Madeleine Rodriguez, coordinator with the Office of Educational Employment Opportunity. Petitioner’s Exhibits 5 through 37 have been admitted into evidence. Petitioner requested and official recognition was taken of the documents identified as Petitioner’s Exhibits 1 through 4. These exhibits cite provisions of the School Board rules and the Florida Administrative Code.

Respondent testified in her own behalf. Respondent’s exhibits were not received in evidence but have been marked for identification purposes.

The Transcript of the proceeding was filed on May 6, 1999. The parties requested and were granted additional time to file proposed recommended orders. Both filed proposed orders that have been fully considered in this matter.

FINDINGS OF FACT

1. At all times material to the allegations in this case, Petitioner was authorized by Florida law to operate the public schools within Dade County, Florida. Such authorization includes, but is not limited to, the employment, control, and supervision of non-instructional employees of the school district.

2. At all times material to the allegations of this case, Respondent was employed as a non-instructional employee of the school district. She was classified as a specialist II and, as such, was governed by the labor contract between the Miami-Dade County Public Schools and the United Teachers of Dade (UTD).

3. Petitioner first employed Respondent in 1992. At that time, as a part-time clerk in the Office of Grants Administration at the Satellite Parent Education Resource Center in Region III, Respondent exhibited unacceptable work performance.

4. Respondent’s interim and overall annual evaluations for her work as a clerk at the satellite center were unsatisfactory. Throughout the 1992/1993 school year Respondent was counseled as to her deficient performance areas. Additionally, she was offered assistance and strategies for improvement, yet failed to improve her work performance. As a result of this initial employment experience, Respondent was fully apprised of the evaluation and remediation process utilized by Petitioner.

5. When Respondent did not improve during the 1992/1993 school year she could not be recommended for full-time employment. Her last day of work for that year was April 23, 1993.

6. Over a year later, Petitioner employed Respondent as a data-input specialist at the Coral Gables AEC. On her May 30, 1995, evaluation, Respondent was advised of several areas of work performance that needed improvement. Among the areas needing improvement were attitudes toward other staff and the public as well as the quality of her work product.

7. The next year, school year 1995/1996, Respondent’s work performance was no better. On May 23, 1996, a conference-for- the record (CFR) was held to review the problems with Respondent’s work performance.

8. At the May 23, 1996, CFR, in addition to reviewing the unacceptable work performance issues, Respondent was given a

   referral to Petitioner’s Employee Assistance Program (EAP) due to her unacceptable behavior, her mood changes, and conflicts with staff and the public.

9. When Respondent failed to attend two conferences with the EAP, her referral was closed.

10. Respondent requested and was granted a one-year personal leave of absence for the 1996/1997 school year.

11. On or about May 28, 1997, Respondent returned to Coral Gables AEC and was supervised by Alonzo Kilpatrick.

12. On October 30, 1997, Respondent received a directive to adhere to her work schedule. This directive resulted from Respondent’s record of poor attendance or punctuality.

13. On December 12, 1997, Respondent’s mid-year evaluation rated her work performance as unsatisfactory. The areas of work performance inadequacy were fully outlined and explained. Basic areas of performance such as attendance and punctuality were deficient. Additionally, the quality of Respondent’s work was inadequate.

14. As a result of the unsatisfactory performance, Respondent was placed on prescriptive status and issued activities to improve her work performance. This prescription outlined deadlines and specific assignments to be completed by Respondent.

15. On January 12, 1998 a CFR was conducted to address Respondent’s interim unsatisfactory evaluation. Respondent was advised that she had failed to comply with the prescription activities. This CFR ended when Respondent became agitated and refused to participate calmly.

16. On January 23, 1998, Respondent was notified that she had failed to complete her prescription and was directed to attend a CFR for that day to discuss the matter. When she failed to attend, Respondent was notified that failure to attend conferences would be considered insubordination.

17. On February 20, 1998, Respondent failed to attend a conference scheduled for that date to review her prescription activities.

18. On March 6, 1998, Respondent was given notice of a CFR that was to take place on March 12, 1998. The agenda for this CFR was to cover Respondent’s failure to complete her prescription and to attend previously scheduled CFRs. Respondent did not attend the March 12, 1998, meeting.

19. Based upon the failure to attend, on March 24, 1998, the Respondent was given a written reprimand and notice that advised her that continuing failures to complete the prescription, failure to attend meetings, and failure to comply with administrative directives would result in disciplinary action, including dismissal.

20. Another CFR was scheduled for April 15, 1998.

    
    

    Respondent was given advance, written notice of the meeting, yet failed to attend.

21. Consequently, Respondent received a written reprimand.

    
    

    Such reprimand cited Respondent for gross insubordination. Further, Respondent was again directed to comply with the administrative directives given to her to attend conferences and to complete the prescription for work improvement.

22. Respondent was given written prior notice to attend a conference scheduled for May 8, 1998. This conference was scheduled to address her continuing failure to attend conferences as well as her prescription requirements and to review Respondent’s deficient work performance. She did not attend.

23. Respondent’s failure to attend the May 8, 1998, CFR marked the third time Respondent failed to comply with the directive to attend. Moreover, she failed to complete her prescription and failed to offer any credible excuse for having not complied with the directives of the administrator.

24. As a result of the foregoing, Respondent was given another written reprimand outlining the failures.

25. On May 15, 1998, Respondent received an annual evaluation that noted her work performance was unsatisfactory. She was also advised she had failed to complete her prescription

    for improvement and had failed to offer an explanation for why the prescription activities could not be completed.

26. On May 28, 1998, a district level (as opposed to school level- all previous CFRs had been at the school level) CFR was held with Respondent at the School Board’s Office of Professional Standards. At that time Respondent was advised that the school administration would recommend disciplinary action against Respondent. Respondent had still not completed the prescription activities assigned to encourage remediation of work deficiencies.

27. On June 3, 1998, Dr. Pullum, the principal at Respondent’s work site, recommended that Respondent’s employment be terminated due to her failures to follow directives, to attend CFRs, to complete prescription activities, and to improve work performance.

28. On August 26, 1998, the School Board of Miami-Dade County, Florida, took action to suspend Respondent and to initiate dismissal proceedings for just cause, including incompetency, gross insubordination, and willful neglect of

    duty.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

30. Section 231.001, Florida Statutes, provides:

    
    

    231.001 School district personnel policies.- Except as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees.

    
    

31. Section 231.3605, Florida Statutes, provides, in pertinent part:

    231.3605 Educational support employees.-

    1. As used in this section:

       1. "Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or school board pursuant to s. 231.1725. This section does not apply to persons employed in confidential or management positions. This section applies to all employees who are not temporary or casual and whose duties require

          20 or more hours in each normal working week.

       2. "Employee" means any person employed as an educational support employee.

       
       

       * * *

       
       

       1. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement

          * * *

          
          

       2. In the event a superintendent seeks termination of an employee, the school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by school board rule in the event there is no collective bargaining agreement.

       
       

32. The contract between the Miami-Dade County Public Schools and the UTD provided for educational support personnel, the group governed by the agreement that included the Respondent, to be terminated from employment for cause. In this matter "just cause" includes misconduct in office, incompetency, gross insubordination, or willful neglect of duty.

33. Section 6B-4.009(4), Florida Administrative Code, defines gross insubordination or willful neglect of duty as follows:

    (4) 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.

    
    

34. In this case, Respondent refused, despite numerous attempts by the school administrators, to attend CFRs or to complete the prescription plan offered to her. Instead, Respondent chose to disregard the directives which were reasonable in nature and given with the proper authority.

    Respondent was placed on notice that her failures to attend would be considered gross insubordination yet she, without credible explanation, continued to fail to attend. Moreover, she did not complete the prescription.

35. Respondent’s defiance of the requests as well as her unilateral determination that her work product was acceptable do not excuse the behavior complained of in this matter.

Respondent was given adequate opportunities to complete the prescription and to explain her failures to attend the CFRs.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the suspension of Respondent and dismissing her from employment with the school district.

DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 9th day of November, 1999.

COPIES FURNISHED:

Luis M. Garcia, Esquire Miami-Dade County Schools 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132-1308

Theslie Sessions

1348 Northwest 95th Street, No. 301

Miami, Florida 33147

Tom Gallagher, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Roger Cuevas, Superintendent Miami-Dade County Schools

1450 Northeast 2nd Avenue, No. 403

Miami, Florida 33132-1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-003885

Orders for Case No: 98-003885