The Issue Whether Jose R. Bustos (Respondent) committed the acts alleged in the Revised Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on March 6, 2015, and whether the School Board has good cause to terminate Respondent’s employment as a school security monitor.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Braddock High is a public school in Miami-Dade County, Florida. The School Board hired Respondent on September 19, 2001, as a school security monitor assigned to Braddock High, the position Respondent continuously held until the date of the disciplinary action at issue. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. Braddock High is a large school in terms of student population and campus size. Braddock High employs 12 full-time security monitors. While it is common practice to hire a substitute for an absent teacher, Braddock High does not employ a substitute security monitor to replace an absent security monitor. If a security monitor is absent on any given day, the schedules of the other security monitors must be adjusted to avoid a breech in security. Respondent has been documented for poor attendance since April 2006. DECEMBER 4, 2009, MEMORANDUM Manuel S. Garcia has been the principal of Braddock High for the last 13 years. On December 4, 2009, Mr. Garcia issued to Respondent a memorandum on the subject “Absence from Worksite Directive.” From October 2009 to December 2009, Respondent accumulated 13.5 absences1/ of which 7.5 were unauthorized. The 7.5 unauthorized absences were categorized as “Leave Without Pay Unauthorized (LWOP-U)”. The memorandum issued by Mr. Garcia as Respondent’s supervisor, provided, in part, as follows: Because your absence from duties adversely impacts the work environment, particularly in the effective operation of this worksite, you are apprised of the following procedures concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to a designated site supervisor, Mr. Manuel S. Garcia, principal or Dr. Edward G. Robinson, assistant principal. Absences for illness must be documented by your treating physician and a written note presented to the designated site supervisor upon your return to the site. Your future absences will be reported as LWOU [sic] (unauthorized) until you provide the required documentation to show that you qualify for Family Medical Leave Act (FMLA) or other leave of absence. If it is determined that future absences are imminent, leave just [sic] be requested and procedures for Board approved leave implemented, and the FMLA or ADA requirements, if applicable, must be complied with. These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program and to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities. APRIL 23, 2010, CONFERENCE FOR THE RECORD On April 23, 2010, Respondent was required by Mr. Garcia to attend a Conference for the Record. The purposes of the conference were to address Respondent’s non-compliance with School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties) and his insubordination to attendance directives. Between January 19, 2010, and April 6, 2010, Respondent was absent 14.5 days without communicating his intent to be absent to the principal or the assistant principal. As part of the conference, Mr. Garcia reiterated in writing to Respondent the directives pertaining to attendance set forth in the December 4, 2009, memorandum. Mr. Garcia advised Respondent that “[a]ny non-compliance with these directives will compel [sic] gross insubordination and will compel further disciplinary measures.” Mr. Garcia provided Respondent with a copy of School Board rules 6Gx13-4A.1.21 (Responsibilities and Duties) and 6Gx13-4E-1.01 (Absences and Leave). Mr. Garcia issued Respondent a referral to the School Board’s Employee Assistance Program (EAP). There was no evidence that Respondent used that referral. For the 2009-2010 school year, Respondent was absent a total of 28.5 days of which 17.5 days were unauthorized. DECEMBER 8, 2011, MEMORANDUM OF CONCERN On December 8, 2011, Mr. Garcia issued to Respondent a Memorandum of Concern addressing his excessive absences. Within less than five months into the 2010-11 school year, Respondent had accumulated 15 absences of which 8 were unauthorized. Respondent was informed that he was in violation of School Board Policy 4430 - Leaves of Absence.2/ Additionally, he was directed to report any future absence to Mr. Medina, the assistant principal. DECEMBER 5, 2012, MEMORANDUM On December 5, 2012, Mr. Garcia issued Respondent another memorandum addressing his absences. Mr. Garcia noted that Respondent had been absent a total of 11 days during the 2012-2013 school year. Respondent’s absence on November 21, 2012, was unauthorized. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009, and April 23, 2010. SEPTEMBER 10, 2013, MEMORANDUM On September 10, 2013, Mr. Garcia issued Respondent another memorandum addressing his absences. Between September 27, 2012, and August 29, 2013, Respondent had 36.5 absences, 19.5 of which were unauthorized leave. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009; April 23, 2010; and December 12, 2012. Mr. Garcia stated to Respondent that he considered Respondent’s actions of failing to abide by the attendance directives to be insubordination. OCTOBER 16, 2013, CONFERENCE FOR THE RECORD On October 16, 2013, Mr. Garcia conducted a Conference for the Record with Respondent to address Respondent’s attendance, his failure to abide by the previously issued directives, and his future employment with the School Board. Between September 30 and October 4, 2013, Respondent was absent without authorization. For three of those four days, Respondent did not notify anyone at Braddock High that he would be absent. Mr. Garcia reiterated the directives he had given to Respondent on December 4, 2009; April 23, 2010; December 12, 2012; and September 10, 2013. Mr. Garcia advised Respondent again that failure to comply with directives would be deemed gross insubordination. Mr. Garcia again provided Respondent with a copy of School Board Policy 4430 - Leaves of Absence. Mr. Garcia provided to Respondent a second referral to the EAP. In addition, Mr. Garcia gave Respondent contact information for four School Board Departments (including the name and telephone number of each department’s director). Those departments were Civil Rights Compliance; Leave, Retirement, and Unemployment; Human Resources – Americans with Disabilities Act; and EAP.3/ On October 18, 2013, Mr. Garcia issued a written reprimand to Respondent based on his absenteeism and his repeated failure to notify administrators in advance of absences. JANUARY 16, 2014, CONFERENCE FOR THE RECORD On January 10, 2014, Mr. Garcia issued to Respondent a Notice of Abandonment based on Respondent’s absence from work for the workweek beginning January 6, 2014, and his failure to communicate in advance with any school administrator about the absences. On January 16, 2014, Mr. Garcia conducted a Conference for the Record to address Respondent’s attendance. Respondent’s unauthorized absence for an entire week and his failure to abide by the previously issued directives prompted the Conference for the Record. Mr. Garcia also discussed Respondent’s future employment with the School Board. Mr. Garcia advised Respondent that the directives that had been repeatedly reiterated to Respondent were still in full force and effect. Mr. Garcia advised Respondent that failure to adhere to those directives would be considered gross insubordination. Mr. Garcia gave Respondent copies of the applicable School Board policies, including a copy of School Board Policy 4430–Leaves of Absence, and 4210-Standards of Ethical Conduct. Mr. Garcia issued Respondent a letter of reprimand. MARCH 12, 2014, CONFERENCE FOR THE RECORD Following the written reprimand in January 2014, Respondent was absent without authorization on six consecutive school days in February 2014. On March 12, 2014, Carmen Gutierrez, the district director of the Office of Professional Standards, conducted a Conference for the Record with Respondent because of Respondent’s history of absenteeism and his unauthorized absences in 2014. Ms. Gutierrez issued to Respondent the same directives Mr. Garcia had repeatedly issued to Respondent. Ms. Gutierrez informed Respondent that his failure to follow directives constituted gross insubordination. The Summary of the Conference for the Record contains the following: You were given the opportunity to respond to your excessive absenteeism. You stated that you had a family problem, a family member that was sick and you were helping them [sic] out. Ms. Hiralda Cruz-Ricot spoke on your behalf stating that you had been diagnosed with fibromyalgia and it impedes your ability to do things. She added that you were recently diagnosed and are not undergoing treatment. Ms. Cruz-Ricot said that you would be producing doctor’s notes since Mr. Garcia remarked that he had only received one doctor’s note dated October 18, 2013 from Broward Psychological Services. MAY 7, 2014, SUSPENSION At the School Board meeting on May 7, 2014, the School Board took action to suspend Respondent without pay for fifteen workdays for just cause, including, but not limited to: gross insubordination, excessive absenteeism, non-performance and deficient performance of job responsibilities, and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. Respondent was notified of the Board’s action via a letter dated September 4, 2014. JUNE 3, 2014, NOTICE OF ABANDONMENT Respondent was due back from his suspension on May 29, 2014. Respondent failed to show up for work on May 29th, May 30th, June 2nd, and June 3rd. Respondent was mailed another Notice of Abandonment. Respondent provided no explanation for his leave. At the beginning of the following school year on August 19, 2014, Mr. Garcia reiterated the directives as to absenteeism that had been repeatedly given to Respondent by Ms. Gutierrez and by Mr. Garcia. OCTOBER 28, 2014, CONFERENCE FOR THE RECORD Respondent failed to report to work for four consecutive school days beginning September 29, 2014. As a result, on October 28, 2014, Ms. Gutierrez conducted a Conference for the Record with Respondent to address Respondent’s absenteeism, gross insubordination, non-performance and deficient performance of job responsibilities and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. On December 9, 2014, Respondent received a letter informing him that the Superintendent of Schools would be recommending that the School Board suspend Respondent’s employment without pay and initiate proceedings to terminate that employment. At its regularly scheduled meeting on December 10, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate his employment. FAILURE TO COMMUNICATE In addition to the excessive absenteeism set forth above, between October 2009 and December 2014, Respondent repeatedly failed to communicate in advance with any administrator that he would be absent on days he failed to appear for work. DEPRESSION Respondent’s only exhibit was a letter from Dr. Maribel Agullera, a psychiatrist. This letter confirms that Respondent has been diagnosed with “Mayor Depressive Disorder, Recurrent, Moderate” and “Alcohol Dependence.” The exhibit also confirms that Respondent is on medication. Respondent testified, credibly, that he was diagnosed with depression before 2001, the year he first started working at Braddock High. Respondent testified he has suffered from depression for most of his adult life and that all of his absences were related to depression. There was no other evidence to support the contention that Respondent’s repeated absences should be attributed to depression. In the absence of competent medical evidence to support Respondent’s contention, the undersigned declines to find that Respondent’s excessive absenteeism and his failure to appropriately communicate with school administrators over a five-year period was attributable to depression.4/
Recommendation The following recommendations are 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 adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Jose R. Bustos. DONE AND ENTERED this 11th day of May, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2015.
The Issue Whether the Respondent committed the violations alleged in the Petition dated May 29, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2008).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Dunaway has been a teacher with the School Board since 1988. At the times pertinent to this proceeding, she was employed under a professional service contract as a third-grade teacher at Elbridge Gale Elementary School. As a classroom teacher in Palm Beach County, Ms. Dunaway's employment is subject to the collective bargaining agreement between the School Board and the local teacher's union. Disciplinary action was taken against Ms. Dunaway prior to the events giving rise to this proceeding. On April 18, 2007, the School Board issued a Written Reprimand for Violation of School Board Policy 3.96, Drug- and Alcohol-Free Workplace, after a drug test administered by the School Board in 2007 showed a positive result for cocaine. In the written reprimand, Ms. Dunaway was advised that, if she failed to comply with School Board Policy 3.96, a recommendation for termination of her employment with the School Board would be issued. Pursuant to the collective bargaining agreement, the written reprimand was placed in Ms. Dunaway's personnel file. Ms. Dunaway began using cocaine in 2003 as a result of her feelings of devastation, humiliation, and embarrassment after an ex-boyfriend sent nude pictures of her, via electronic mail, to every employee of the school at which she was a teacher. After she tested positive for cocaine in the early part of 2007, Ms. Dunaway requested and received assistance through the School Board's Employee Assistance Program, and she stopped using cocaine as a result of her successful completion in November 2007 of an intensive program at the Gratitude House Ms. Dunaway was transferred to Elbridge Gale Elementary School in August 2008. Ms. Dunaway had a strained relationship with the school principal, Gail Pasterczyk. Ms. Dunaway felt that she was subjected to frequent, intense scrutiny by Ms. Pasterczyk, and this caused Ms. Dunaway to feel uncomfortable and increasingly anxious. According to Ms. Dunaway, Ms. Pasterczyk conducted a formal evaluation of Ms. Dunaway's teaching performance on Thursday of the second week in February 2009, which was February 12, 2009. Ms. Pasterczyk was very critical of Ms. Dunaway and gave her a poor evaluation. Ms. Dunaway was very upset about the poor evaluation and, on Friday, February 13, 2009, she used cocaine for the first time since November 2007. Ms. Dunaway admitted that she took "lots of [cocaine]” but stated that she had "stopped on Friday."2 Ms. Dunaway returned to school the following Tuesday, February 17, 2009, because Monday was a holiday. According to Ms. Dunaway, she had a very bad toothache during the weekend and arranged a dentist appointment for Tuesday afternoon. She was very nervous and took Xanax, which had been prescribed for her in February, to ease her anxiety. Ms. Dunaway claimed to have taken a Xanax right before lunch on Tuesday and to have become so "inebriated" from the Xanax that she doesn't remember anything that happened after she noticed that she was slurring her speech. On Thursday, February 19, 2009, while Ms. Pasterczyk was eating lunch in the teachers' dining room, several third- grade teachers approached her and expressed their concern about Ms. Dunaway's behavior during the morning and at lunch. Ms. Pasterczyk went to Ms. Dunaway's classroom and observed Ms. Dunaway standing at the front of the classroom, slurring her words, saying inappropriate things in front of the class, and using an overhead projector, unaware that the paper she had on the projector was upside down until she was alerted to this by her third-grade students. Ms. Pasterczyk returned to her office and consulted with Britoni Garson in the School Board's employee relation’s office. Ms. Garcon sent Ms. Pasterczyk a Drug and Alcohol Documentation of Observable Behaviors form by facsimile transmittal, which Ms. Pasterczyk completed and sent back to Ms. Garson by facsimile transmittal. On the form, Ms. Pasterczyk noted that she had observed sudden changes in Ms. Dunaway's behavior, emotional behavior, nervousness, slurred speech, increased and/or loud talking, and hand tremors. Ms. Garson reviewed the documentation submitted by Ms. Pasterczyk and determined that there was reasonable cause to subject Ms. Dunaway to a drug test. Ms. Garson contacted Ms. Pasterczyk and told her that she was to go to Ms. Dunaway's classroom and accompany Ms. Dunaway to her office, where they would wait for the drug-test team to arrive. Ms. Pasterczyk did as Ms. Garson directed, and the drug test was administered to Ms. Dunaway at approximately 2:30 p.m. on Thursday, February 19, 2009. The results were submitted to the School Board on February 25, 2009, and were positive for cocaine and for benzodiazepines, the family of drugs within which Xanax falls. Cocaine is a mood-altering drug that raises a person's tempo and makes them more animated. Xanax is a type of tranquilizer that is prescribed for people who are nervous or who cannot sleep, and it has a calming effect. Cocaine stays in the body for two to three days, but, by the fourth day after use, the results of a drug test would be negative for cocaine, that is, the amount if cocaine would be less than 300 nanograms per milliliter. Ms. Dunaway met with Alfredo Taulh to discuss her test results, and Mr. Taulh advised her that she could challenge the results of the drug test within seven days; she did not do so. The School Board conducted an investigation and, after going through all of the pre-disciplinary steps required by the collective bargaining agreement, the Superintendent of the Palm Beach County school system issued a Notice of Suspension and Recommendation for Termination from Employment dated April 24, 2009, advising Ms. Dunaway that he intended to recommend to the School Board her suspension without pay and termination of employment at the May 6, 2009, School Board meeting. Article II, Section M of the collective bargaining agreement governs the discipline of employees. Article II, Section M of the collective bargaining agreement provides in pertinent part: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. . . . * * * Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph # 7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, and employee may be reprimanded verbally, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation . . . Summary Written Reprimand - A written reprimand may be issued to an employee when appropriate in keeping with this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay . . . Dismissal - An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with the provisions of this Section, including just cause and applicable laws. Based upon a consideration of all of the evidence presented, the proof is sufficient to establish with the requisite degree of certainty that, under the circumstance of this case, the School Board's decision to terminate Ms. Dunaway conforms to the progressive discipline provisions in Article II, Section M 7., of the collective bargaining agreement. Ms. Dunaway's action in ingesting large quantities of cocaine that remained in her system when she reported for work demonstrates a flagrant disregard of the School Board's policy of ensuring a drug-free workplace, a policy with which Ms. Dunaway was familiar as a result of the written reprimand she received in 2007 for her first violation of the policy. Ms. Dunaway's testimony that she did not ingest cocaine after Friday, February 13, 2009, is rejected as not credible. The drug test was administered on Thursday, February 19, 2009, and, given that cocaine is entirely dissipated from the human body within four days, Ms. Dunaway would have tested negative for cocaine if she had not ingested any of the drug since the previous Friday, six days, prior to the drug test. In order to test positive for cocaine on Thursday, Ms. Dunaway must have ingested cocaine on Monday, a school holiday, and she could have ingested cocaine at any time between Monday and Thursday. Ms. Dunaway attributed the positive test result for benzodiazepine to the Xanax she had taken to calm her anxiety about a dental appointment she had in the afternoon of Tuesday, February 17, 2009. According to Ms. Dunaway, she took the Xanax before lunch and, after realizing that her speech was slurred, remembered nothing more about the afternoon. Ms. Dunaway may have had a dental appointment on Tuesday afternoon, and she may have taken Xanax at school, but it is clear from the context of her testimony that Ms. Dunaway was referring to a lapse in memory that occurred on the day on which the drug test was administered, that is, on Thursday, February 19, 2009. The inconsistencies in Ms. Dunaway's version of the events surrounding her ingestion of cocaine and Xanax undermine the credibility of her testimony as a whole and make it difficult to credit her claim that she was not under the influence of cocaine on the day of her drug test. Even if her version of events is credited, the fact remains that she tested positive for cocaine and for benzodiazepine on Thursday, February 19, 2009. Regardless of whether her condition on that day was the result of the cocaine in her system or of the Xanax in her system or of the combination of drugs, it is reasonable to infer that her presence in a third-grade classroom when she was so impaired that she had no recollection of being there constituted a real and present danger to the students in her class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order sustaining the suspension of Debra Dunaway without pay and terminating her employment. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 29th day of January, 2010.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with operating, controlling, and supervising all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as a teacher in the Miami-Dade County Public Schools District pursuant to a professional services contract. In the 2011-2012 school year, Respondent was employed as a science teacher at Homestead Middle School. In the 2012-2013 school year, until she was suspended pending the outcome of this proceeding, Respondent was employed as a math teacher at the Alternative Outreach Program, 5000 Role Models location.1/ At all times relevant to these proceedings, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Events Giving Rise to these Proceedings The 2011-2012 School Year Respondent began teaching eighth grade science at Homestead Middle School ("HMS") in August 2011. The 2011-2012 school year for students began on August 22, 2011. The workday hours for teachers at HMS for the 2011-2012 school year were from 7:25 a.m. to 2:45 p.m., Monday through Friday. The persuasive evidence establishes that Respondent was informed of this schedule when she was interviewed for her teaching position, and again so informed during the first faculty meeting of the school year. Pursuant to the UTD contract, the teacher work hours per day in the Miami-Dade Public Schools consist of seven hours and 20 minutes, including a one-hour planning period. The UTD Contract provides that teachers may, with the approval of the work-site administrator (i.e., the principal) modify their workday schedule, such as adjusting the beginning time of the teacher's workday, provided that such modification does not interfere with the overall number of hours worked. This provision affords a principal the authority and discretion to modify a teacher's workday schedule. The student school day hours for HMS began at 7:35 a.m., when the first bell rang and students began entering their classrooms, and ended at 2:20 p.m. Students were to be in their classrooms by 7:40 a.m. for a homeroom period, immediately followed by the first instructional period consisting of a literacy block. The student school day schedule is set by the Miami-Dade County School Board and the school principal is not authorized to change it. Pursuant to HMS's established procedure, if a teacher was going to be absent, he or she must call the absence hotline at least 30 minutes prior to the start of the teacher workday. Shortly after the beginning of the 2011-2012 school year, Respondent began being tardy to work. HMS Principal Rachelle Surrancy or one of the HMS assistant principals would note Respondent's arrival time, either by being in the front of the school when she arrived2/ or by having to open the door to her classroom to let her homeroom class students in if she arrived after the late bell had rung. Surrancy verbally reminded Respondent of the school's starting time, then held an informal meeting with her on or about September 7, 2011, to remind her of the same. Respondent's young son suffers from a range of significant health conditions, including asthma, gastrointestinal reflux, apnea, pneumonia, lactose intolerance, allergic rhinitis, and eczema. He requires extensive care for these conditions, and Respondent was required to administer breathing treatments and other care on a daily basis. During flare-ups of her son's conditions, Respondent needed to take medical leave to provide that care. On or about September 20, 2011, Respondent submitted to Surrancy an Intermittent Leave Request Medical Certification form under the Family and Medical Leave Act ("FMLA") (hereafter "FMLA Form")3/ requesting approval for Respondent to periodically take leave due to the intermittent illness of her young son. The FMLA form was completed and signed by Respondent's son's physician. Based on the child's medical history, the physician estimated that Respondent would need to take FMLA leave every two to three months, for a period lasting two to three days. Notwithstanding Surrancy's admonitions, Respondent continued to be tardy to work. During the first 25 days of the school year, Respondent was tardy 16 of those days. Most of the tardies entailed an arrival time of between two and five minutes late, but some entailed arrival times as much as 25 to 35 minutes late. When Respondent arrived after 7:40 a.m. (15 minutes late), her colleagues in the science department were placed in the position of having to cover her class until she arrived. As a result of Respondent's continued tardiness, on September 28, 2011, Surrancy issued a Punctuality to Work Directive ("Directive") to Respondent regarding her punctuality and attendance.4/ The Directive reminded Respondent that punctuality and attendance were essential components of her teaching position, and that as a faculty member, she served as a role model to other employees and student. Respondent was apprised that she was to arrive at work on time and sign in daily by 7:25 a.m. If she was going to be tardy, she was to communicate that to an assistant principal or to Surrancy. Surrancy explained that compliance with these directives was necessary to prevent adverse impact to the students and their academic progress, to ensure continuity of the educational program, and to maintain effective worksite operations. The memo advised Respondent that she could obtain assistance to facilitate her punctuality. Respondent was notified that noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. Respondent told Surrancy that the reason she was tardy was that she had to take her son to his daycare center. The daycare center did not open until 7:00 a.m., making it difficult for her to arrive at HMS by 7:25 a.m. due to the commute in morning traffic. On October 5, 2011, Surrancy evaluated Respondent's instructional performance for the 2011-2012 school year pursuant to the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used in the Miami-Dade County Public School District to evaluate instructional personnel. Surrancy rated Respondent as "effective" for each IPEGS standard other than Performance Standard ("PS") 7, "Professionalism."5/ For that standard, she rated Respondent's performance as "unsatisfactory" on the basis that due to her tardies, Respondent violated the School Board's Code of Ethics and Standards of Ethical Conduct policies.6/ After the September 28 meeting, Respondent continued to be tardy, so on October 10, 2011, Surrancy again met with her. Respondent explained that each day, her son required a breathing treatment regimen that she had to administer and that she had to take her son to daycare. Respondent told Surrancy that she planned to enlist the assistance of a friend to take her son to daycare so that may assist her to arrive on time.7/ Surrancy offered to adjust Respondent's workday schedule to allow her to arrive five minutes later to accommodate her travel time from her son's daycare to HMS, contingent on Respondent arriving at work by 7:30 a.m. However, Respondent continued to be tardy, at times arriving later than 7:30 a.m. Surrancy held a follow-up meeting with Respondent on October 25, 2011, at which she notified Respondent that the adjusted workday schedule no longer was in effect and that she was again required to arrive at 7:25 a.m.8/ In the meantime, Respondent sought to transfer to a school having a workday schedule with which she could more easily comply, given her son's daycare start time and her travel time. She was offered, but declined, a position at Redland Middle School, which entailed a teaching assignment that was out of her field of certification. Respondent declined the position because it did not meet the condition of her loan forgiveness program that the assignment be in a critical subject area——such as science and math——and because she did not believe she would be as proficient a teacher in teaching out of her subject area. Following the October 25 meeting, Respondent continued to be tardy. Several of these tardies necessitated coverage for her homeroom class. On December 14, 2011, Surrancy held a Conference-for- the-Record ("CFR") with Respondent to address her continued tardiness. By that time, Respondent had been tardy 45 days since the beginning of the school year, and several of these tardies necessitated coverage of her homeroom class by her colleagues. Surrancy informed Respondent that her tardies had adversely affected the educational program and services provided to students. Respondent was again directed to be punctual and in regular attendance, to communicate any intent to be tardy before 7:00 a.m. by calling the assistant principals or her, and to provide physician documentation and/or recertification of her FMLA form as needed if she was going to use FMLA leave to cover her tardies. Respondent was provided copies of Petitioner's policies on Standards of Ethical Conduct, Code of Ethics, and Leaves of Absence; Department of Education rules 6B-1.001 and 6B- 1.006; another copy of the FMLA for recertification by her physician; and other documents to inform and assist Respondent in addressing her tardiness problem. Respondent was informed that noncompliance with the directives would constitute insubordination and compel district disciplinary action. Respondent continued to be tardy. Again, several of these tardies necessitated coverage of her homeroom class. On February 13, 2012, Surrancy conducted another CFR with Respondent. As of that date, Respondent had been tardy 69 days since the beginning of the 2011-2012 school year. Surrancy issued Respondent the same directives previously given and again furnished Respondent copies of pertinent School Board policies, applicable Department of Education rules, and other informational documents. Surrancy informed Respondent that failure to comply with these directives would constitute gross insubordination and necessitate further disciplinary action. Respondent explained that her tardiness was due to a variety of factors, including having to perform breathing and other medical treatments on her son and taking him to daycare. She expressed concern at having to call in by 7:00 a.m. if she was going to be tardy because, for unforeseen reasons such as her son's daycare being late in opening, she may not know whether she was going to be tardy until after 7:00 a.m. Surrancy informed Respondent that under any circumstances, calling in did not excuse tardiness. Respondent requested that Surrancy assign her homeroom to another teacher and allow her to report at 7:45 a.m., when her science classes commenced. Surrancy refused. As a result of Respondent's continued tardies, Surrancy determined that her conduct constituted insubordination and noncompliance with applicable School Board policies. Surrancy issued a written Reprimand to Respondent on March 5, 2012. The Reprimand directed Respondent to adhere to school board policies, be punctual, and call Surrancy or an assistant principal before 7:00 a.m. if she were going to be tardy. Respondent nonetheless continued to be tardy, necessitating another CFR, which was held on March 29, 2012. By this time, Respondent had been tardy 86 days and absent 8.5 days in the 2011-2012 school year. During the CFR, Respondent provided two FMLA leave request forms completed by her son's treating physicians certifying the frequency and duration of her son's flare-ups that necessitated leave. One of these, dated March 6, 2012, stated that flare-ups occurred at a frequency of every one to two months for a duration of two to three days, while the other, dated February 20, 2012, stated that the flare-ups occurred approximately once a month and did not specify a duration. Under any circumstances, Respondent was tardy more frequently than the number of days of leave documented as necessary by either of these FMLA forms. Respondent again was given directives, which included those previously provided regarding punctuality and attendance, calling in by 7:00 a.m. if tardiness was anticipated, physician documentation for leave requests, performance of her teaching duties, comporting herself in a manner that reflected credit on herself and Miami-Dade County Public Schools, and adherence to School Board policies and applicable Department of Education rules. Respondent was again provided copies of the policies, rules, and other documents previously given to her. Respondent was offered the option of resigning her position but declined. Surrancy recommended that Respondent be suspended from her teaching position. However, Respondent was not suspended during the 2011-2012 school year.9/ Although Respondent's tardiness during the 2011-2012 school year required coverage of her homeroom class by colleagues on several occasions, she did not miss any classroom instructional time.10/ 2012-2013 School Year For the 2012-2013 school year, Respondent was hired as a math and science teacher in the Educational Alternative Outreach Program's ("EAO") credit recovery program. She was assigned to the EAO's 5000 Role Models location. In this assignment, Respondent taught between 12 and 15 students in grades six through eight. The 5000 Role Models facility was located between 35 and 40 miles from Respondent's home. She had a commute of between one hour ten minutes and two hours one way from her home to 5000 Role Models. The teacher workday hours for this location were 8:20 a.m. to 3:40 p.m. Respondent was informed of this schedule when she was interviewed by EAO Principal Claire Warren, and by letter from Warren regarding her projected teaching assignment for the 2012-2013 school year. Warren credibly testified that at the time she was interviewed, Respondent did not express any concerns regarding this schedule. The student school day at 5000 Role Models started at 9:00 a.m. Shortly after the school year commenced, Respondent began being tardy. During the first week of the students' school year, Respondent was tardy twice, approximately 20 minutes each time. On August 31, 2012, Warren issued Respondent a written memorandum reminding her of the directives that were issued the previous school year and directing her to be punctual and in regular attendance; call before 8:00 a.m. to notify either Warren or the assistant principal if she was going to be absent or tardy; provide physician documentation for absences and tardies due to illness; timely submit updated FMLA forms if anticipated illness or tardies covered under the FMLA are anticipated; adhere to all School Board policies; and perform her job responsibilities. Respondent was placed on notice that noncompliance with these directives would constitute gross insubordination and would necessitate notification of the Office of Professional Standards for the imposition of discipline. Respondent continued to be tardy. As of October 1, 2012, Respondent had been tardy eight times11/ and absent three days.12/ On some of the days she was tardy, Respondent did not call to notify the administration, as she had been directed to do; on other days, she sent text messages but did not call. Warren conducted another conference with Respondent on October 1, 2012. She issued another memorandum documenting Respondent's tardies since the beginning of the 2012-2013 school year, reiterating the directives previously issued on August 31, and notifying Respondent that failure to comply with the directives would constitute gross insubordination. Warren also provided a letter to Respondent regarding FMLA coverage of her tardies and absences. The letter informed Respondent that only absences, i.e., time away from the worksite, and not tardies were covered by the FMLA, and that it was her responsibility to notify the school if she were going to be absent pursuant to an FMLA-certified illness event. Attached to the letter was an FMLA Form to enable Respondent to update her FMLA-covered illness certification as necessary. Respondent's tardies continued. She was tardy on October 2, 5, 8, and 9——on some of these days as much as 45 to 70 minutes late. On the days when she was tardy by 40 or more minutes, she missed classroom instructional time and her students had to be placed in another teacher's classroom. On October 10, 2012, Petitioner took action to suspend Respondent for 30 workdays without pay,13/ for gross insubordination and for violating School Board policies regarding the Code of Ethics (policy 3210), Standards of Ethical Conduct (policy 3210.01), and Leaves of Absence (policy 3430), and rules 6B-1.001, 6B-1.006, and 6B-4.009.14/ Respondent served her suspension and returned to work on November 26, 2012. On that day, she was 11 minutes tardy; the following day, she was 40 minutes tardy. On November 29, 2012, Warren issued another memorandum to Respondent reiterating the directives previously given on August 31 and October 1. Respondent was informed that her failure to comply with the directives would constitute gross insubordination and would necessitate referral to the Office of Professional Standards for further discipline. Respondent continued to be tardy. In December 2012 and January 2013, Respondent was tardy 13 days, two of which required coverage of her class. Respondent did not call in to the school to notify them of her anticipated tardiness but she did notify the school by text message on some of these occasions. On February 1, 2013, Respondent was notified of a CFR scheduled for February 5, 2013. On February 4, 2013, Respondent notified Warren by electronic mail that she would not be at school that day or the following day. On February 6, 2013, Respondent notified Warren by electronic mail that she was taking a leave of absence "for at least the next few weeks." She also informed Warren that her absences the previous two days had been due to her own illness. Respondent did not submit a leave request form to Warren prior to taking sick leave. Respondent did submit a Leave of Absence Medical Documentation Form to the Miami-Dade County Public Schools Office of Retirement/Leave/Unemployment Compensation ("Leave Office") on February 5, 2013, containing her physician's certification that she was ill and recommending a leave of absence from February 4, 2013, to March 1, 2013. Because she was requesting approval of leave for less than 30 days' duration, under the UTD Contract, Respondent should have filed her leave request with Warren rather than with the Leave Office. UTD Contract Article XIV, section 2, paragraph A., governing notification in the event of teacher absence, states in pertinent part: When a teacher, for whom an emergency temporary instructor is employed, will be absent from work, due to illness or injury or due to personal reasons, he/she shall notify the supervising administrator (or designee), as soon as possible, but no later than one hour before the start of his/her scheduled workday, in order that an emergency temporary instructor can be employed or other arrangements made. If said absence/leave is for a specified period of time, no further notice is necessary. In the event of a change in this specified period of absence, the employee will proceed, pursuant to the stipulations herein. Where an absent teacher does not notify his/her supervising administrator, as stipulated herein, and where there are not extenuating circumstances, as determined by the supervising administrator, such teacher will have the option to utilize personal leave or leave without pay. However, such determination by the supervising administrator shall not be made arbitrarily. UTD Contract, art. XIV, § 2.A. (emphasis added). Article XIV, section 10, governs sick leave without pay for illness. Paragraph C. of that section states: "[e]mployees whose illness requires an absence of over 30 days must file an application for extended sick leave indicating the anticipated length of such absence and supported by a statement from competent medical authority." This leave request would be filed with the Leave Office. However, because Respondent did not request sick leave for a period exceeding 30 days, this provision was not applicable to her leave request. Notwithstanding, Respondent's leave request was reviewed by a medical consultant for Miami-Dade County Public Schools and ultimately was denied. Apparently, some time elapsed before the Leave Office forwarded Respondent's leave request and denial decision to Warren. Warren testified: "I didn't get the request until much afterwards, you know, after she had been out several days " Even after Warren received Respondent's leave request form and denial from the Leave Office, more time passed before she notified Respondent. It was not until March 1, 2013, that Warren sent Respondent a letter informing her that her leave request had been denied and that her absences for the entire month of February were unauthorized, thus warranting her dismissal on the basis of job abandonment. At approximately the same time Warren notified Respondent that her leave request was denied, Warren also notified Respondent, by separate email, that she had incorrectly submitted her leave request to the Leave Office, instead of submitting it to her (Warren). On the same day that Warren notified Respondent that her leave request had been denied, Respondent submitted another leave request form and a medical documentation form to Warren, retroactively requesting approval of her sick leave taken between February 4 to March 18, 2013, due to her own illness. Warren denied the request that same day, citing the medical consultant's determination as the basis for the denial. Warren's letter did not cite an independent basis for the denial. Petitioner did not present any competent evidence regarding the specific basis for the medical consultant's determination to deny the request. Respondent returned to work on March 4, 2013. She was tardy that day and the following day. On March 6, 2013, a CFR was held. The CFR originally had been scheduled for February 5, 2013, but when Respondent took leave, it was rescheduled. At the meeting, Respondent was apprised that her tardies and absences were excessive and that they, along with her failure to adhere to the other previously issued directives, constituted gross insubordination. On March 13, 2013, Petitioner took action to suspend Respondent without pay and terminate her employment as a teacher. Respondent's Criminal History Petitioner presented evidence that in August 2012, a records check for Respondent was generated after information was received from Petitioner's Fingerprinting Office indicating that Respondent had been arrested in January 2011 for violation of a protective injunction and in July 2011 for battery. However, this evidence consisted solely of hearsay. Petitioner did not present any non-hearsay evidence establishing that these arrests occurred. Respondent denied that she was arrested in January 2011. She acknowledged that she was arrested for battery in July 2011. She testified, credibly, that the arrest occurred over the July 4th holiday and that she timely reported this arrest by calling Petitioner's instructional staffing office. Respondent credibly testified that the charge was not prosecuted and ultimately was dismissed. Petitioner did not present any competent or credible evidence to refute Respondent's testimony on these points. Respondent's Defenses Respondent asserts that she was not tardy as frequently in the 2011-2012 school year as Petitioner asserts. She questions the accuracy of Surrancy's and others' recordkeeping regarding her tardiness. However, she did not present any specific evidence to show that Petitioner's records of her tardiness in the 2011-2012 were inaccurate; thus, her position on that point is essentially speculative. She also claims that Surrancy did not treat her fairly or equitably during the 2011-2012 school year. Specifically, she asserts that Surrancy had the authority and flexibility to adjust her workday schedule so that she did not have to cover a homeroom class, thus allowing her to arrive at work later, but that Surrancy unfairly chose not to do so. Respondent further asserts that Surrancy had provided such accommodation to another teacher in a previous school year. Thus, Respondent claims that Surrancy treated her unfairly.15/ However, Surrancy testified, persuasively, that she could not have relieved Respondent of having a homeroom in order to enable her to arrive later in the workday because instructional personnel, other than coaches and co-teachers, were assigned homeroom or other professional duties that required them to be at school during regular workday hours. Thus, there was no one else available to assume Respondent's homeroom class responsibilities.16/ Respondent also asserts that Surrancy treated her disparately and unfairly by singling her out for discipline for her tardies, while not disciplining others who also were often tardy. However, even if that were the case, it does not excuse Respondent's tardies or provide a basis for Surrancy to decline to enforce school policies with respect to Respondent. Respondent also asserts that she was not afforded the FMLA leave to which she was legally and contractually entitled. Specifically, she argues that she filed FMLA leave forms stating the need for intermittent leave to care for her son, so that for the days on which she was tardy, the number of minutes by which she was tardy should have been counted as leave under the FMLA. Respondent testified, credibly, that she did not purposely refuse to follow the directives given her by Surrancy, Warren, and the Office of Professional Standards, and that her tardies during both school years were the result of her having to provide medical care for her young son and take him to daycare, then commute in heavy traffic to the worksites. Moreover, to the extent Petitioner claimed that Respondent was insubordinate because she did not adhere to directives to call the school if she was going to be tardy, Respondent credibly countered that she often would call in, only to be put on hold for some time and then told that the administrator she was attempting to reach was not available; thus, she started sending text messages instead to ensure that her message was received. Regarding the arrest reporting issue, Respondent denied that she was arrested in January 2011, and testified that she timely reported her July 2011 arrest to the appropriate authority. Findings of Ultimate Fact In these consolidated proceedings, Petitioner seeks to suspend Respondent without pay and terminate her employment17/ as a teacher on the basis of just cause——specifically, gross insubordination and misconduct in office.18/ As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.33 and rules 6A-5.056; and 6B-1.001 and 6A-10.080; and 6B-1.006 and 6A-10.081. Gross Insubordination Pursuant to the foregoing findings of fact, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent's conduct in accruing an extensive number of tardies during the 2011-2012 and 2012-2013 school years constituted gross insubordination. Although Respondent did submit leave request forms estimating the frequency and duration of FMLA-covered leave she would need in order to care for her son, the evidence shows that she was tardy far more frequently than supported by any of the forms she submitted. In order to accommodate an employee's FMLA request, Petitioner must be able to rely on the information the employee provides on the FMLA leave form. If the information provided on the form is inaccurate, Petitioner is neither required nor authorized to consider undocumented time away from the work site as leave covered under the FMLA.19/ While it is admittedly difficult to precisely predict when illness will occur, under any circumstances, the forms Respondent submitted did not cover the frequency of her tardies incurred in the 2011- 2012 and 2012-2013 school years.20/ As addressed above, it appears that Respondent was the victim of a coalescence of unfortunate personal circumstances that interfered with her employment. Nonetheless, the fact remains that she was repeatedly put on notice by Surrancy, Warren, and the Office of Professional Standards that her continued tardiness would constitute gross insubordination. Any measures that Respondent purportedly took to rectify the circumstances, such as enlisting the help of a friend to take her son to daycare, apparently were unsuccessful. Respondent had the option in the 2011-2012 school year to transfer to another school to address the morning commute issues, but she chose not to. Although she had legitimate personal and professional reasons for choosing to remain at HMS, the fact remains that she elected not to pursue a course of action that may have addressed the problematic circumstances she found herself in. Under these circumstances, the undersigned concludes, albeit reluctantly, that Respondent's conduct——which took place over a period of two school years, after frequent admonitions, and after she had been placed on notice several times that her continued conduct would constitute gross insubordination——does, in fact, constitute gross insubordination. With respect to Respondent's absences in February 2013, the evidence indicates that Petitioner's Leave Office and Principal Warren unnecessarily delayed notifying Respondent that her leave request for February 2013 had been denied. The evidence gives rise to the inference that Respondent may have cut her leave short and returned to the work site had she been timely informed that her request had been denied. Moreover, Petitioner presented no competent evidence regarding the specific basis for the Leave Office's denial of Respondent's request, or for Warren's denial of Respondent's retroactive request on the same basis. Under these circumstances, the undersigned determines that Respondent's absences for the month of February 2013 should not be considered unexcused. However, even without considering these absences, Respondent's repeated tardiness over an extended period of time without proper leave documentation and after extensive prior notice of the consequences, is sufficient to establish gross insubordination. Misconduct in Office As more fully discussed below, Petitioner proved, by a preponderance of the evidence, that Respondent committed misconduct in office under both versions of rule 6A-5.056 in effect in the 2011-2012 and 2012-2013 school years, respectively. Specifically, Respondent's frequent and repeated tardiness during the 2011-2012 school year violated the Code of Ethics in the Education Profession because her conduct caused her to lose the respect and confidence of her colleagues. In particular, Respondent's frequent tardiness substantially undermined Surrancy's confidence in her reliability, and, thus, impaired her effectiveness in the school system. Respondent's frequent and repeated tardiness over the course of the 2012-2013 school year also constituted misconduct in office. Again, she violated the Code of Ethics in the Education Profession by failing to maintain the respect and confidence of her colleagues. Respondent's frequent tardiness adversely affected Warren's confidence in her reliability. Additionally, on the days when Respondent's tardiness necessitated her students being moved to another teacher's classroom, her students' learning environment was disrupted, and her own ability and that of her colleagues to effectively perform their duties was reduced. As a result, Respondent's effectiveness in the school system was impaired. Petitioner also charged Respondent with violating Policy 3210, Standards of Ethical Conduct, which provides that all employees are representatives of the Miami-Dade County School District and requires employees to conduct themselves in a manner that will reflect credit upon themselves and the school system. Respondent's frequent tardies over an extended period of time gave the appearance of disregard for school policies and did not reflect credit on her or on the school district. Moreover, Respondent did not protect her students from conditions harmful to learning on the days when they had to be moved to another teacher's classroom due to her tardiness.21/ Accordingly, Respondent violated Policy 3210. Respondent also violated Policy 3210.01, Petitioner's Code of Ethics. As found above, she did not protect her students from conditions harmful to learning on the days when she was so tardy that they had to be moved to another classroom. However, Respondent did not violate Policy 3430, Leaves of Absence. For the reasons discussed above, Respondent's absences in February 2013 should not have been determined unexcused; thus, she did not violate Policy 3430. Respondent also did not violate Policy 3121.01, Employment Standards and Fingerprinting of Employees. To the extent Petitioner argues that Respondent lacks good moral character based on having been arrested, Petitioner did not present any competent evidence regarding her arrests or failure to timely report them as required by school board policy. Respondent acknowledged that she had been arrested in July 2011 but testified that she had timely reported it, and that the charge ultimately was dismissed. Petitioner did not offer any competent evidence22/ to counter Respondent's testimony, which is deemed credible and persuasive. Factual Basis for Recommended Sanction The persuasive evidence establishes that Respondent did not purposely set out to violate school policies and Department of Education rules, but that circumstances coalesced such that Respondent found herself in the extremely difficult position of having to care for her very ill son and take him to daycare, then undertake a lengthy commute in morning traffic, without enough time to accomplish both. As unfortunate and trying as those circumstances were, they do not excuse Respondent from complying with the crucial and reasonable requirement that employees arrive to work on time.23/ Nonetheless, the evidence establishes that Respondent is an innovative, proficient teacher in the critical subject areas of science and math, and that she cares about performing her job well——to the extent that she declined an out-of-field teaching assignment, in part due to concern that she would not perform effectively in that assignment. As such, it is reasonable to infer that under less demanding circumstances, such as having a shorter commute or a later workday starting time, Respondent would perform her teaching duties proficiently and professionally. The circumstances in this case warrant upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013- 2014 school year, and denying back pay for the full period of her suspension. However, given the very trying circumstances Respondent faced in the 2011-2012 and 2012-2013 school years, and because the evidence indicates that under less oppressive circumstances Respondent likely would be an innovative, proficient, and professional teacher, the undersigned believes that terminating Respondent's employment would be excessively harsh and that Petitioner would lose a good teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013-2014 school year; denying back pay for the full period of her suspension; and reinstating Respondent's employment as a teacher at the start of the 2014- 2015 school year. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2014
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent's employment as a teacher.
Findings Of Fact The School Board 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, Respondent was employed by the School Board as a teacher pursuant to a professional services contract. Respondent was initially hired by the School Board in July 2006 and assigned to teach at Horace Mann Middle School ("Horace Mann"). At all times material to this case, Respondent's employment with the School Board was governed by Florida law, the School Board's policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade ("UTD"). The 2010-2011 School Year During the 2010-2011 school year, Respondent was a teacher at Horace Mann. Dr. Carmen Jones-Carey, the principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Dr. Jones-Carey issued Respondent a letter of reprimand on May 23, 2011, concerning an alleged incident that occurred on April 27, 2011, involving Respondent "yelling," "throwing things around" in her classroom, and making an inappropriate comment to another employee. The reprimand directed Respondent to refrain from inappropriate emotional outbursts, losing control, and making inappropriate comments to or about staff members that may be interpreted as offensive or threatening. The reprimand further directed Respondent to: (1) strictly adhere to all School Board rules and regulations, specifically, School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213; (2) refrain from using inflammatory language in her role as a teacher; and (3) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Dr. Jones-Carey informed Respondent that failure to comply with the directives may result in further disciplinary action. On May 25, 2011, Dr. Jones-Carey held a conference for the record with Respondent regarding the April 27, 2011, incident, at which time Respondent was directed to: (1) strictly adhere to all School Board rules and regulations, specifically, School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213; (2) refrain from using inflammatory language in her role as a teacher; and (3) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Dr. Jones-Carey informed Respondent that failure to comply with the directives will be deemed as insubordination which may result in disciplinary action. The 2011-2012 School Year On April 13, 2012, Dr. Jones-Carey and Paul J. Greenfield, administrative director for North Regional Center, held a conference for the record with Respondent concerning an alleged incident in the cafeteria involving Respondent yelling at and pulling a student by the bottom of her shirt, slinging the student around, and causing the student to fall into a metal counter. During the conference, Respondent was directed to, among other things: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) refrain from using physical means as a form of discipline; and (3) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. As a result of the alleged incident, Respondent was suspended without pay for 17 days and informed that failure to comply with the directives may result in further disciplinary action. The 2012-2013 School Year On November 16, 2012, Dr. Jones-Carey held a conference for the record with Respondent concerning an alleged incident in Respondent's sixth-period class involving a verbal altercation between Respondent and a student during which Respondent used inappropriate language when addressing the student and the entire class. During the conference, Respondent was directed to, among other things: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board; (3) refrain from exposing a student to unnecessary embarrassment or disparagement; and (4) refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace. During the conference, Respondent was also informed of the issuance of a letter of reprimand and that failure to comply with the directives will result in disciplinary action. Dr. Jones-Carey issued Respondent a letter of reprimand on November 28, 2012, concerning the alleged incident that occurred in Respondent's sixth-period class. The reprimand directed Respondent to immediately refrain from getting involved in verbal confrontations with students, berating, taunting, and/or embarrassing students in class and/or in any public area. The reprimand further directed Respondent to: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board; (3) refrain from exposing a student to unnecessary embarrassment or disparagement; and (4) refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace. Dr. Jones-Carey informed Respondent that any recurrences of the above infraction would constitute gross insubordination and may result in further disciplinary action, up to and including dismissal from further employment with the School Board. On March 21, 2013, Dr. Jones-Carey held a conference for the record with Respondent concerning an alleged incident that occurred in Respondent's fifth-period class on February 8, 2013, in which Respondent yelled at the entire class and forcefully moved desks, which caused another desk to hit a student causing the student to lose her balance and injure her arm. During the conference, Respondent was directed to, among other things: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board; (3) refrain from exposing a student to unnecessary embarrassment or disparagement; and (4) refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace. During the conference, Respondent was also informed that failure to comply with the directives will constitute gross insubordination and result in disciplinary action. Dr. Jones-Carey issued Respondent a letter of reprimand on April 9, 2013, concerning the alleged incident that occurred in Respondent's fifth-period class on February 8, 2013. The reprimand directed Respondent to immediately refrain from losing her temper in class, getting involved in verbal confrontations with students, berating, taunting, and/or embarrassing students in class and/or in any public area. The reprimand further directed Respondent to: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board; (3) refrain from exposing a student to unnecessary embarrassment or disparagement; and (4) refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace. Dr. Jones-Carey informed Respondent that any recurrences of the above infraction would constitute gross insubordination and may result in further disciplinary action, up to and including dismissal from further employment with the School Board. On June 19, 2013, at its scheduled meeting, the School Board took action to suspend Respondent without pay and terminate her employment as a teacher. Respondent timely requested a formal administrative hearing, and, on June 26, 2013, the School Board referred the matter to DOAH. The matter was styled Miami- Dade County School Board v. Shavonne Anderson, DOAH Case No. 13-2414TTS, and assigned to Administrative Law Judge Todd P. Resavage. 2013-2014 School Year On January 14, 2014, following an evidentiary hearing, Judge Resavage issued a Recommended Order finding Respondent guilty of gross insubordination. Judge Resavage recommended that the School Board enter a final order finding Respondent guilty of gross insubordination, suspending her employment without pay for a period of 180 school days, and placing her on probation for a period of two years. On February 12, 2014, the School Board entered a Final Order adopting Judge Resavage's Recommended Order, imposing the suspension without pay for a period of 180 days. Respondent received credit for time served and was reinstated for the 2014-2015 school year. 2018-2019 School Year Respondent was re-assigned to Miami Beach Senior High School for the 2018-2019 school year, where she taught physical science. The proposed discipline is based on conduct occurring on January 31, 2019, during Respondent's fourth-period inclusion physical science class, co-taught by Respondent and another teacher, Joanna Semeniuk. On January 31, 2019, D.A. was a ninth-grade male special education student in the class. During class, D.A. questioned Respondent about the quality of his written work. Displeased with Respondent's answer, a verbal confrontation ensued between D.A. and Respondent. The argument escalated after D.A. stood up, threw his paper on the floor of the classroom, used profane language toward Respondent, and attempted to leave the room. In response to D.A.'s conduct, Respondent became irate, grabbed the paper off the floor, used profane language toward D.A., grabbed D.A. by his shirt, and shoved the piece of paper down his shirt. The incident was witnessed by Ms. Semeniuk and other students in the classroom. Respondent's conduct on January 31, 2019, was inappropriate, disparaging, reflected poorly upon herself and the School Board, and reduced Respondent's ability to effectively perform duties. Respondent could certainly have projected authority and addressed the student's behavior without escalating the situation and resorting to the profane and disparaging verbal attack and initiating inappropriate physical contact with D.A. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. Through the profane and disparaging verbal tirade and inappropriate physical contact upon the student on January 31, 2019, Respondent violated Florida Administrative Code Rules 6A-10.081(2)(a)1., 5., and 6., by failing to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety, intentionally exposing the student to unnecessary embarrassment or disparagement, and intentionally violating the student's rights. Respondent also violated School Board Policy 3210, Standards of Ethical Conduct, sections A.3., 7., and 8., and School Board Policy 3210.01, Code of Ethics, Conduct Regarding Students, sections A., E., and F., which mirror rules 6A-10.081(2)(a)1., 5., and 6. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of gross insubordination in violation of rule 6A-5.056(4) by intentionally refusing to obey a direct order, reasonable in nature, and given by and with proper authority. By failing to comply with the specific directives detailed above to refrain from exposing a student to unnecessary embarrassment or disparagement; refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace; refrain from inappropriate emotional outbursts, losing control, and using inflammatory language in her role as a teacher; and conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board, Respondent intentionally refused a direct order, reasonable in nature, and given by and with proper authority. At hearing, Respondent acknowledged that her language and use of profanity toward her student in the classroom on January 31, 2019, was inappropriate. Specifically, Respondent acknowledged that during the incident she called D.A. a "faggot" and directed the word "shit" toward him. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of violating rule 6A-10.081(2)(c)4., or School Board Policy 3210, Standards of Ethical Conduct, sections A.9. and 22.
Recommendation 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 upholding the suspension and terminating Respondent's employment. DONE AND ENTERED this 26th day of November, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2019. COPIES FURNISHED: Shavonne L. Anderson 2868 Northwest 197th Terrace Miami Gardens, Florida 33056 (eServed) Cristina Rivera, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308
The Issue Did the actions of Respondent, Joy Thompson (Ms. Thompson), during an altercation with student V.G.1 on April 13, 2010, violate Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13-5D-1.07 of the Miami-Dade County School Board (School Board)? If Ms. Thompson's actions violated the School Board's Rules, do the violations constitute just cause for termination or other disciplinary action?
Findings Of Fact The School Board is the constitutional entity charged with the duty to operate, control, and supervise the Miami-Dade County Public School System. Ms. Thompson has worked for the School Board for ten years. Throughout her employment she has worked at Ruth Owens Kruse School (Kruse) as a full-time School Security Monitor. This is a separate day school serving students with emotional and behavioral disabilities. Ms. Thompson has been a satisfactory employee for the ten years of her employment, except for the incident involved in this proceeding. She has received only one verbal warning. Under School Board rules, the warning is not formal discipline. The incident resulting in the warning did not generate a finding of probable cause to believe that Ms. Thompson had violated School Board rules. The School Board and her principals have never disciplined her. The basic objectives of Ms. Thompson's position include monitoring student activity "in promoting and maintaining a safe learning environment" and ensuring that appropriate standards of conduct are followed. Her job tasks and responsibilities include reporting serious disturbances and resolving minor altercations. The collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (Collective Bargaining Agreement), Florida Statutes, State Board of Education rules published in the Florida Administrative Code, and the policies and procedures of the School Board govern Ms. Thompson and establish the terms and conditions of her employment. Ms. Thompson is an "educational support employee," as defined by section 1012.40(1)(a), Florida Statutes (2010)2 and is governed by the Collective Bargaining Agreement. The Collective Bargaining Agreement requires "just cause" for the discipline of support personnel. The Collective Bargaining Agreement provides that: 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 [of Education] Rule 6B-4.009. Rule 6B-4.009 of the State Board of Education defines incompetency, immorality, and gross insubordination. It defines willful neglect of duty continuing or constant intentional refusal to obey reasonable orders. The rule defines misconduct in office as violations of Florida Administrative Code Rules 6B- 1.001 and 6B-1.006 "so serious as to impair the individual's effectiveness in the school system." The Collective Bargaining Agreement affirms that the School Board and the Superintendent of Schools have exclusive management authority of the total school system. They have the exclusive right to suspend or terminate employees. The Collective Bargaining Agreement recognizes that "special education students" may experience impaired impulse control of such severity that the use of physical restraint is necessary. It also states: "The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to 'teach the child a lesson' or as punishment." The School Board provided Ms. Thompson its policies and procedures, including its Code of Ethics and all the rules that she is charged in this proceeding with violating. Ms. Thompson has reviewed those policies. Knowing and abiding by them is a requirement of her job. As a School Security Monitor at Kruse, Ms. Thompson's duties included ensuring that the school environment was safe for the employees and children. All Kruse staff members must be able to work with students having emotional and behavioral disabilities. The staff must be able to de-escalate situations, maintain order, maintain discipline, and serve as role models for the students. If attacked, employees may defend themselves. The School Board has provided Ms. Thompson initial training and refresher training in "Safe Crisis Management." The School Board has also provided Ms. Thompson training in appropriate physical restraint techniques. Twelve clinicians work full-time at Kruse with students. They are clinical psychologists, clinical social workers, or art therapists. Each student has a clinician case manager. Kruse protocols require employees to call a clinician for assistance with behavioral problems the employee cannot manage. Room 22 at Kruse is the designated "Calm Room." It is for students who are agitated, serving detention, or serving "timeout" in the least restrictive area outside the classroom. The adjoining room, with a connecting door, is designated as the "Timeout Room or Back Room," divided into two areas. The "Timeout Room or Back Room" is a state-approved, specifically designed, and padded room for use by students at extreme behavioral levels. On April 13, 2010, Ms. Thompson's security post was down the hall from Room 22. V.G., an 18-year-old tenth grade Kruse student, was in the "Calm Room" serving a one day detention because she had skipped school the day before. Other students, including V.G.'s friend L.D., were in the room. The morning of April 13, 2010, Ms. Thompson had escorted V.G. to the "Calm Room." Around noon, Ms. Thompson passed the open door of the "Calm Room." Mr. Villarreal, the teacher in the "Calm Room," asked Ms. Thompson to stay in the "Calm Room" while he stepped out for a few minutes. Ms. Thompson agreed and took a seat at a desk at the back of the room. V.G. was sitting near the front of the room. She was talking and misbehaving. She was not doing her work. V.G. was talking loudly to her friend L.D. across the room and to other students. There were three other School Security Guards in the room at the time. Ms. Thompson directed V.G. to turn around and be quiet. V.G. ignored her and continued talking across the room to L.D. She talked back to Ms. Thompson repeatedly and was verbally abusive. V.G. said, "Bitch, I am not doing it." V.G. continued to talk and be insulting and combative. Ms. Thompson continued to tell V.G. to be quiet and turn around. But as Ms. Thompson grew upset, she told V.G. that she had a "fat ass." Ms. Thompson also told V.G. "that's why your boyfriend doesn't love you and that's why; you're fat." The argument continued and escalated with V.G. and Ms. Thompson insulting each other. Each called the other a "fat bitch" and other names several times. Ms. Thompson grew increasingly upset and walked up to V.G. saying that she was taking V.G. to the "Back Room." Another School Security Guard, Mr. Rojas joined Ms. Thompson to escort V.G. to the "Back Room." At any time, Ms. Thompson could have disengaged from her argument with V.G. and let Mr. Rojas and the other School Security Guards in the room handle the problems V.G. was creating. She also could have called a clinician for assistance. She did neither. Ms. Thompson did not disengage. She continued yelling and arguing with V.G. and followed Mr. Rojas and V.G. into the "Back Room." She was upset by the insults and because students were seeing V.G. be disrespectful to her. Ms. Thompson did not need to follow V.G. and Mr. Rojas into the "Back Room." In her anger, Ms. Thompson pushed past Mr. Rojas and punched at V.G. She grabbed V.G.'s hair, and V.G. grabbed hers. They fought until the other School Security Guards separated them. In the struggle, Ms. Thompson scratched V.G.'s face and neck, leaving light marks. She also bruised V.G.'s arms. Ms. Thompson left the area. As she left, Ms. Thompson grabbed V.G.'s purse and threw it in the trash. Leaving the area of the "Calm Room," Ms. Thompson passed school psychologist Ana San Roman. Ms. Thompson was disheveled and visibly agitated. As the two passed each other, Ms. Thompson said to Ms. San Roman: "I finally got that bitch." Her exclamation demonstrated that the altercation involved personal feelings about V.G. not just the professional issues presented by the events of the day. Ms. Thompson's altercation with V.G. was not part of an effort to prevent injury to person or damage to property. It was the result of Ms. Thompson's frustration and anger and Ms. Thompson's desire to demonstrate to V.G. that she could not show Ms. Thompson disrespect. After the incident, Ms. Thompson completed a required form called a Student Case Management Referral. In the form Ms. Thompson stated that she attempted to perform an approved restraint on V.G. But, at the hearing, Ms. Thompson testified that V.G. attacked her. She did not claim to have attempted to perform an approved restraint. V.G.'s account of the fight on the day it occurred and at hearing are consistent, albeit more colorful in testimony. The inconsistency of Ms. Thompson's testimony with her report on April 13, the greater consistency of V.G.'s testimony with her report, and the testimony of Ms. San Roman are significant factors resulting in determining that Ms. Thompson's account is not as credible as V.G.'s. The "Do's and Dont's [sic]" list for interventions with students at Kruse identifies the following behaviors that escalate difficulties with students as "don'ts": raising voice, yelling, having the last word, using "put downs," and using physical force. In the course of her altercation with V.G., Ms. Thompson engaged in every one of the behaviors. After investigating the incident, the office of the Miami-Dade County Public Schools Superintendent advised Ms. Thompson, by letter dated October 5, 2010, that it intended to recommend her suspension and termination to the School Board for violation of Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07 of the Miami-Dade County School Board. At its October 13, 2010, meeting the School Board suspended Ms. Thompson without pay and began dismissal proceedings against her for violation of the rules. The School Board's October 15, 2010, letter advising Ms. Thompson of the decision stated that it was "for just cause, including, but not limited to" violation of School Board Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07. School Board Rule 6Gx13-4A-1.21 provides in relevant part: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. School Board Rule 6Gx13-5D-1.07 provides in relevant part: The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending upon the severity of the misconduct. School Board Rule 6Gx13-4A-1.213, Code of Ethics, provides in part: As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001): * * * The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, state and national laws, codes and regulations. To support the principles of due process to protect the civil and human rights of all individuals. To treat all persons with respect and to strive to be fair in all matters. To take responsibility and be accountable for his or her actions. To avoid conflict of interest or any appearance of impropriety. To cooperate with others to protect and advance the District and its students. To be efficient and effective in the delivery of job duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final Order finding that there is just cause to terminate Ms. Thompson's employment. DONE AND ENTERED this 29th day of April, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of April, 2010.
The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are 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 adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2015.
The Issue The issue in this case is whether just cause exists for Petitioner to suspend Respondent without pay from her employment as a teacher for 30 work days.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material to this proceeding, Respondent was a teacher of emotionally/behaviorally disturbed ("E/BD") students at Jose de Diego Middle School, a middle school within the Miami-Dade County Public Schools. At all times material to this proceeding, Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background The incident giving rise to this proceeding occurred on or about January 12, 2012. On that day, three male students in Respondent's class engaged in play fighting and video-recorded their actions on cell phones and an MP-3 recording device. As a result, Mr. Fernandez, the principal of Jose de Diego Middle School, determined that Respondent did not follow established policies and procedures in stopping or attempting to stop the play fighting, and that her failure to do so endangered the safety of the students involved. Accordingly, he recommended that she be suspended from her employment for 30 work days without pay. On May 16, 2012, Petitioner suspended Respondent from her employment for 30 work days without pay. Incident Giving Rise to Charge The incident giving rise to this proceeding occurred during the last instructional block of the day, while the students were engaged in language arts and reading. There were a total of eight or nine students in Respondent's classroom, and they were divided into two groups, consisting of four or five students each, for reading exercises. They were situated in the back of the classroom where they had access to computer terminals. Respondent and a paraprofessional, Ms. Larkin, were also situated in the back of the classroom, working with the students. During this instructional time, Respondent received three separate calls on the classroom telephone from her department head asking about paperwork on one of Respondent's students. The classroom phone is located in the front of the classroom. Each of these calls took Respondent away from her teaching and supervision of the students. Ms. Larkin continued to supervise the groups, but then excused herself to use the restroom. This left the students at least momentarily unsupervised. At this time, three male students, instigated by one student, began to play fight. The persuasive evidence indicates that the students engaged in three separate incidents of play fighting over a period of time lasting several minutes. The other students in the class looked on and did not engage in play fighting. Respondent credibly testified that as soon as she saw what was happening, she immediately hung up the phone and went to the back of the classroom to stop the play fighting, yelling at the students to stop and threatening to write disciplinary referrals to the office; however, they ignored her. Her testimony was closely corroborated by that of D.M., one of the students engaged in the play fighting. D.M. credibly testified that Respondent repeatedly attempted to get the students to stop by yelling at them and threatening to write referrals, but they ignored her. They continued to play fight and recorded the play fighting on two cell phones and an MP-3 device with the stated intention of posting the videos on Facebook, YouTube, and Twitter. Once Respondent saw that the students would not stop, she stepped into the hall to see if a security monitor was on the first floor, where her classroom was located. Seeing none, she called George Coakley, the Dean of Students, to come to her classroom. An emergency button is located in each classroom. This button transmits a call to the main office, which is responsible for responding to the call. Respondent did not use the emergency button to call for assistance because, in her experience, such calls often are not answered. Respondent used the classroom phone to call Mr. Coakley's cell phone. Mr. Coakley had given her and other teachers his cell phone number to, among other things, be used in such situations. At the time of Respondent's call, Mr. Coakley was involved with another matter, and said he would be there as soon as he was finished with that matter. He and Respondent both estimated it took approximately five minutes for him to arrive at Respondent's classroom. At that time, the students disengaged and ran to sit down as he entered the classroom. Before Mr. Coakley's arrival, Respondent wrote referrals on all of the students involved in the play fighting. These referrals were turned over to the main office for disciplinary purposes. Mr. Coakley took the students involved in the play fighting from Respondent's classroom to the main office and turned them over to Principal Fernandez, who confiscated the phones and MP-3 device and ultimately suspended the students from school. The persuasive evidence establishes that there were three separate videos of three discrete episodes of play fighting taken on three separate recording devices.2/ In one of the videos, Respondent and Ms. Larkin are seen sitting at the desk in the front of the classroom while the play fighting is taking place in the back of the classroom.3/ It is undisputed that the videos depict only a portion of the entire incident. The persuasive evidence establishes that Respondent first made efforts, not captured on the videos, to get the students to stop play fighting. Those efforts consisted of going to the back of the room and yelling at the students to stop fighting, then threatening to write and writing disciplinary referrals. She took these actions before looking for a security monitor, then calling Mr. Coakley and awaiting his arrival. Based on the video, Principal Fernandez concluded that Respondent's efforts to stop the play fighting did not conform to the E/BD Crisis Plan Jose de Diego Middle School 2011/2012 ("Crisis Management Plan") protocol applicable to student fights. The Crisis Management Plan requires, in pertinent part, that the teacher immediately contact security via emergency call button, the school administrator, and nearby staff. Principal Fernandez determined that Respondent did not comply with this requirement because she did not use the emergency call button to summon school security to her classroom. However, the persuasive evidence establishes that Respondent did contact school administration——specifically, Mr. Coakley——as soon as she determined that she was unable to get the students to stop the play fighting. Respondent credibly testified that she contacted Mr. Coakley directly instead of using the call button specifically because, in her experience, school security often did not respond to the emergency call button. The Crisis Management Plan also requires the teacher to "separate and isolate" students involved. It does not specifically describe how this should or must be done. Respondent testified that she repeatedly attempted to get the students to stop play fighting by going to the back of the room where they were located, yelling at them to stop, and threatening to write referrals on them. Principal Fernandez testified that Respondent should have said "stop"——which Respondent did. He also testified that she should have "separated and isolated" the students but he did not articulate any specific means that Respondent should have employed short of physically intervening to break up the play fights——an action that arguably may itself have violated Petitioner's corporal punishment policies or may have resulted in Respondent herself being physically injured. Robin Morrison, an Instructional Supervisor with Petitioner's Division of Special Education, testified that Respondent could have used "proximity control" to separate the students, and that in her opinion, based on her viewing of the videos, Respondent did not do this and therefore did not respond appropriately in trying to break up the play fighting. However, as previously discussed, the videos do not depict the entire incident. Thus, Ms. Morrison's testimony is deemed unpersuasive. The persuasive evidence establishes that Respondent did go to the back of the room where the play fighting was occurring and attempted to get the students to stop. Only after it became apparent that they would not comply did she go to the front of the room, where she looked down the hallway to see if a security monitor was immediately available, then called Mr. Coakley on the classroom phone. Findings of Ultimate Fact Misconduct in Office Petitioner has charged Respondent with committing misconduct in office. Misconduct in office is defined in Florida Administrative Code Rule 6A-5.056(3)4/ as: violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system. The Code of Ethics of the Education Profession in Florida, rule 6B-1.001, provides: The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of a democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of community, the educator strives to achieve and sustain the highest degree of ethical conduct. The Principles of Professional Conduct for the Education Profession in Florida, rule 6B-1.006, provides in pertinent part: The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * The greater weight of the evidence establishes that Respondent made reasonable efforts to protect the students in her classroom from conditions harmful to learning and to their mental and physical health and safety. As addressed above, the persuasive evidence establishes that instead of doing nothing—— as the incomplete video record of the incident appears to depict——Respondent did, in fact, immediately attempt to stop the students from play fighting by going to the back of the room where they were located, ordering them to stop, and threatening to subject them to disciplinary action by referring them to the office. When it became apparent the students were not going to stop despite these measures, Respondent went to the front of the room and looked to see if a security monitor was immediately available. Seeing none, and based on her prior experience of emergency calls going unanswered, she elected to call the Dean of Students, who had given his cell phone number to her and to other teachers specifically for such use. Accordingly, it is determined, as a matter of ultimate fact, that Respondent did not violate rules 6B-1.006 or 6B-1.001, and, therefore, did not commit misconduct in office in violation of rule 6A-5.056(3). Policy 3210 - Standards of Ethical Conduct School Board Policy 3210, Standards of Ethical Conduct, provides in relevant part: All employees are representatives of the District and shall conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. A. An instructional staff member shall: * * * 3. make a reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety[.] * * * As previously discussed, Respondent's actions in attempting to break up the play fighting and contacting the school administration constituted reasonable effort to protect her students from conditions harmful to learning and to their mental health and physical health and safety. Petitioner's sole evidence that Respondent sat by and did nothing consists of an incomplete video record of the incident that was contradicted by the persuasive, consistent testimony of Respondent and D.M., who were present when the incident occurred. Accordingly, it is determined that Respondent did not violate School Board Policy 3210. Policy 3210.01 - Code of Ethics School Board Policy 3210.01, Code of Ethics, provides in pertinent part: All members of the School Board, administrators, teachers and all other employees of the District, regardless of their position, because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all District students. As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education F.A.C. 6B-1.001): The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * Fundamental Principles The fundamental principles upon which this Code of Ethics is predicated are as follows: * * * F. Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things. * * * Respect – Showing regard for the worth and dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three (3) major forms: respect for oneself, respect for other people, and respect for all forms of life and the environment. Responsibility – Thinking before acting and being accountable for their actions, paying attention to others and responding to their needs. Responsibility emphasizes our positive obligations to care for each other. Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, State, and national laws, codes and regulations. To support the principles of due process to protect civil and human rights of all individuals. To treat all persons with respect and to strive to be fair in all matters. To take responsibility and be accountable for his/her actions. To avoid conflicts of interest or any appearance of impropriety. To cooperate with others to protect and advance the District and its students. To be efficient and effective in the performance of job duties. Conduct Regarding Students Each employee: A. shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety[.] Petitioner did not prove that Respondent violated Policy 3210.01. The persuasive evidence establishes that Respondent immediately responded to the play fighting by going to the back of the room and attempting to get the students to stop by yelling at them and threatening disciplinary action through office referrals. When these measures were not successful, Respondent followed proper protocol by expeditiously contacting the school administration regarding the matter. As previously discussed, Respondent's conduct did not violate Rule 6B-1.001, the Code of Ethics of the Education Profession in Florida, or the pertinent Fundamental Principles set forth in Policy 3210.01. Also as previously discussed, Respondent's conduct constituted a reasonable effort to protect her students from conditions harmful to their learning and to their mental and physical health and safety. For these reasons, it is determined that Respondent did not violate Policy 3210.01, Petitioner's Code of Ethics. Accordingly, there is no just cause, as required by subsections 1012.33(1)(a) and (6),5/ for Petitioner to suspend Respondent from her employment as a teacher for 30 work days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order rescinding the suspension of Respondent, Thelma Mobley, from her employment as a teacher for 30 work days without pay, and paying Respondent's back salary for the 30-day period for which she was suspended. DONE AND ENTERED this 17th day of April, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2013.
The Issue Whether just cause exists for Petitioner to suspend Respondent’s employment as a teacher, without pay, for five days.
Findings Of Fact The School Board is a duly constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. The School Board hired Respondent in 2004 as a teacher at Dr. Michael M. Krop Senior High School, a public school in Miami-Dade County. Since the 2009 school year, and at all times relevant to this case, Respondent was employed at David K. Lawrence, Jr., K-8 Center (“David Lawrence”), a public school in Miami-Dade County, pursuant to a professional services contract.1 At all times relevant to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade. The collective bargaining agreement provides that: “Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes.” 1 Respondent is no longer a teacher at David Lawrence. However, she is still employed by the School Board as a teacher at another school. The alleged conduct giving rise to the School Board’s proposed suspension of Respondent occurred during the 2018-2019 school year, at which time Respondent was a special education teacher at David Lawrence, teaching fourth and fifth grade autistic students in the school’s “ESE” special education program. At that time, Mary Kate Parton was principal; Dr. Charlene Olicker was assistant principal; Elvia Nunez was a classroom paraprofessional assigned to Respondent’s classroom; and Jason Hocherman was a one-to-one paraprofessional assigned to another classroom. The alleged conduct giving rise to the School Board’s proposed suspension of Respondent is contained in paragraphs 16 and 18 of the Notice of Specific Charges.2 Allegations Involving Ms. Nunez on February 15, 2019 The School Board alleges in paragraph 16 of the Notice of Specific Charges that “[o]n February 15, 2019, a student under Respondent’s supervision hit Ms. Nunez in the face causing her face to swell and causing Ms. Nunez to feel nauseous and dizzy.” According to the School Board, the incident “occurred in Respondent’s presence, however, Respondent prevented Ms. Nunez from obtaining medical treatment, did not assist Ms. Nunez with any treatment and prevented Ms. Nunez from reporting it to the administration.” The School Board further alleges Respondent “failed to write a Student Case Management Form (“SCM”) on the student for his actions toward Ms. Nunez.” On the day of the incident, Ms. Nunez wrote a statement detailing her version of the events. In her statement, Ms. Nunez explained she was in the classroom when a female student hit Ms. Nunez on her face with her elbow 2 At hearing, the School Board abandoned the allegations in paragraph 17 of the Notice of Specific Charges related to a purported incident on February 22, 2019. Accordingly, no findings are made with respect to the allegations in paragraph 17 of the Notice of Specific Charges. and fist. Ms. Nunez called the office on the radio for assistance, and Dr. Olicker and Ms. Mejia came to the room to assist her. Ms. Mejia stayed with Ms. Nunez until Respondent finished what she was doing. They all took the students to lunch. Ms. Nunez stayed outside the cafeteria and told another assistant principal what had happened. In the meantime, another student started running behind the bathroom in the cafeteria, and Ms. Nunez and other employees went to catch the student. Ms. Nunez later returned to the classroom and told another staff member she was not feeling well. Ms. Nunez then went to the library and office and told Dr. Olicker she “was feeling dizzy.” Dr. Olicker called “911,” and Ms. Nunez was transported to the hospital by fire rescue. Respondent did not witness a student hit Ms. Nunez and she had no knowledge of the incident at the time. Respondent did not prevent Ms. Nunez from obtaining medical treatment and she did not prevent Ms. Nunez from reporting the incident to administration. Respondent did not write an SCM referral for a student because she did not witness the incident. There is no School Board rule or policy requiring Respondent to write an SCM referral on a student for an incident she did not witness or have knowledge of at the time.3 In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not engage in any of the conduct as alleged in paragraph 16 of the Notice of Specific Charges, which constitutes misconduct in office. Allegations Involving J.H. on February 25, 2019 In paragraph 18 of the Notice of Specific Charges, the School Board alleges that “[o]n February 25, 2019, Jason Hocherman (‘Mr. Hocherman’), a 3 In any event, Dr. Olicker submitted an SCM referral on the student. paraprofessional at Lawrence K-8 while in the school’s hallway[,] observed J.H. in the hallway without Respondent.” J.H. was a student in Respondent’s class who frequently and spontaneously ran from the classroom. According to Respondent, J.H. would run as often as 12 to 15 times a day. J.H. was well known as a “runner” by Mr. Hocherman, other staff members, and the school’s administrators.4 On February 25, 2019, Mr. Hocherman was leaving his assigned classroom for the day at around 3:00 p.m., when students were also being dismissed for the day. At that time, he observed J.H. unsupervised standing in the corner of the first floor interior hallway of the building by the doors leading into the main lobby of the school. Mr. Hocherman does not know how long J.H. was standing in the hallway without adult supervision. Mr. Hocherman asked J.H. if he was alright, but J.H. did not respond. A few minutes after Mr. Hocherman first observed J.H., Respondent came upon the scene. According to Mr. Hocherman, J.H. became agitated or scared upon Respondent’s arrival on the scene. Mr. Hocherman tried to calm J.H. down, but J.H. took off running towards the stairwell in the middle of the hallway. J.H. often ran to the third floor. Respondent told J.H. she was not going to chase after him, hoping that would stop him from running. J.H. ignored Respondent and ran up the stairs to the third floor landing of the stairwell. Respondent and Mr. Hocherman followed in pursuit of J.H. Mr. Hocherman got to J.H. first, was able to calm him down, and took him by the hand directly to the bus loop in front of the school to get on his bus to go home. The evidence presented at the hearing did not establish that J.H., a known runner, was ever in any danger. 4 Notably, J.H. was the student who ran behind the bathroom in the cafeteria on February 15, 2019. J.H. got on the bus, went home, and did not suffer any injuries as a result of the incident. Under the particular facts of this case, Respondent’s conduct was not inappropriate. In sum, the persuasive and credible evidence adduced at hearing demonstrates that on February 25, 2019, Mr. Hocherman “observed J.H. in the hallway without Respondent,” as alleged in paragraph 18 of the Notice of Specific Charges. However, such conduct does not constitute misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order rescinding the suspension of Respondent, Linda A. Moreau, with full back pay. 5 In its Proposed Recommended Order, the School Board argues that Respondent violated School Board Policy 3213 by failing to “immediately report a harmful situation to the administration.” However, the alleged conduct in paragraph 18 of the Notice of Specific Charges is not based on a failure to report; rather, the alleged conduct is solely that J.H. was observed unsupervised in the hallway. Accordingly, any contention by the School Board that Respondent engaged in misconduct in office or violated School Board policies based on a failure to report J.H. being observed unsupervised in the hallway, is beyond the scope of the charge. Even if the School Board’s contention is not beyond the scope of the charge, however, J.H. was never in any danger or harmed, and, therefore, any failure of Respondent to report the incident does not constitute a violation of School Board Policy 3213 and does not constitute misconduct in office. DONE AND ENTERED this 21st day of April, 2021, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2021. COPIES FURNISHED: Christopher J. La Piano, Esquire Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's suspension from employment with the Dade County School Board should be affirmed and whether Respondent should be dismissed from employment with the Dade County School Board.
Findings Of Fact Respondent, Jill Cohen (Ms. Cohen), has been a school teacher for fifteen years. At all times material hereto, Ms. Cohen, was employed by Petitioner, Dade County School Board (School Board) as an elementary school teacher under a continuing contract. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. On April 27, 1989, Ms. Cohen, while employed at Edison Park Elementary School, had to leave her classroom for a personal hygiene emergency. She asked another teacher with whom she shared the classroom to watch her students while she went to the school clinic. The other teacher advised Ms. Cohen that in a few minutes she had to pick the students up at the physical education field. While Ms. Cohen was absent, the other teacher had to leave the classroom to get her own students. With both teachers absent from the classroom, Ms. Cohen's students were left unsupervised. On May 8, 1989, a conference-for-the-record was held with Ms. Cohen concerning the incident on April 27, 1989, and eleven tardies Ms. Cohen had from January 12, 1989 through May 2, 1989. She was advised that she had a professional responsibility to supervise her students at all times, that leaving students unsupervised was a violation of school and state rules and regulations, and that she was required to report to work on time. Ms. Cohen was told that if an emergency requiring her to leave her class unsupervised arose, she was to notify the administrator so that supervision could be arranged. Additionally, she was advised that future incidents of this nature would result in a recommendation for further disciplinary action. On January 19, 1990, Ms. Cohen left her students unsupervised. During this unsupervised period, one child allegedly sexually abused another student. Upon returning to the classroom, Ms. Cohen learned of the incident and spanked the alleged perpetrator. Ms. Cohen did not report the incident. A conference-for-the record was held on February 5, 1990, concerning the January 19, 1990 incident and another alleged incident of lack of supervision. Ms. Cohen was again advised that she must provide adequate supervision of her students at all times and that if she had an emergency necessitating her absence, she was to contact the administrator. She was told that any reoccurrence of her failure to supervise her students would be deemed gross insubordination for which further disciplinary action would be recommended. Ms. Cohen was given a letter of reprimand. In February, 1990, Ms. Cohen was given an alternate work assignment through June, 1990 at Region IV Operations. The incident of January 19, 1990, was investigated by the Department of Health and Rehabilitative Services. The same incident was also investigated by the State Attorney's Office which brought charges against Ms. Cohen. As a result of these charges brought by the State Attorney, Ms. Cohen entered into a pre-trial advocacy program. A conference-for-the-record was held with Ms. Cohen on May 29, 1990, concerning the January 19, 1990, incident. On September 25, 1990, Ms. Cohen and the School Board entered into a Community Service Agreement, in lieu of suspension, dismissal, or demotion. The agreement included 160 hours of community service, tutoring students, and counseling students. The Florida Commissioner of Education filed an Administrative Complaint against Ms. Cohen as a result of the January 19, 1990, incident. The Administrative Complaint was resolved with a settlement whereby Ms. Cohen did not contest the allegations that Respondent failed to supervise students and spanked a student as set forth in the Administrative Complaint. As a result of the settlement agreement with Commissioner Castor, Ms. Cohen was given a written reprimand, her state teaching certificate was suspended for eight days, she was placed on three years probation, and was required to undergo psychological evaluation and counseling. Ms. Cohen received an overall unacceptable performance evaluation for the school year 1989-90. Ms. Cohen was assigned to the Morningside Elementary School (Morningside) for the 1990-91 school year due to the notoriety stemming from the January 19, 1990 incident. On June 11, 1991, Ms. Cohen accidently hit a student on the head with a stick. The student did not cry or tell Ms. Cohen that his head hurt. At the time of the incident, there were no physical signs on the student that he had been hit. Later a bump appeared on his forehead. When the student went home, he told his mother what happened. She called the police. The next day the student's mother, accompanied by a police officer, went to see the school principal. Ms. Cohen had not reported the accidental hitting of the student. The principal first learned of the accident when the parent and police officer met with the principal. As a result of the accidental hitting of the student, HRS, investigated the allegations and submitted a final report where the investigation was closed without classification. Ms. Cohen received an unacceptable performance evaluation for the school year 1990-91. Ms. Cohen was returned to Region IV Operations for alternate work assignment on August 29, 1991. In lieu of harsher disciplinary action, Ms. Cohen entered into another Community Service Agreement with the School Board on October 8, 1991. Ms. Cohen agreed to perform 200 hours of community service. On October 22, 1991, Ms. Cohen received a written reprimand relating to the June 11, 1991 incident. She was directed to implement appropriate procedures for dealing with inappropriate student behavior. Ms. Cohen was warned that further such incidents would be considered insubordination and would warrant further disciplinary action. After a psychological examination, Ms. Cohen was returned to Morningside for classroom duty in either December, 1991, or January, 1992, with conditions of employment which included, among other conditions, acceptable attendance at the work site and adherence to site directives, prescriptive directives and Code of Ethics stipulations. Ms. Cohen's performance began to improve and she received an acceptable performance evaluation for the 1991-92 school year. At the beginning of the school year 1992-93, the faculty at Morningside were advised that their students must be supervised and students were not to be left unattended. During the first week of school the teachers were given a faculty handbook, which was discussed at the first faculty meeting. The Morningside Elementary School Faculty Handbook provides the following pertinent directives: Discipline: It is the professional responsibility of the teacher to handle routine disciplinary problems. When it becomes necessary for a student to be removed from the classroom, the teacher should seek assistance from the principal, or his/her designee. No Student is to be removed from a classroom and placed in an area that is unsupervised by a qualified person. . . . (at page 1) . . . Supervision of Children: Children should be supervised by adults at all times. Teachers are responsible for walking children to and from physical education. In cases of emergencies, if you must leave students unattended, leave your door open and notify the teacher next door. (at page 3) . . . DISCIPLINE PLAN: Staff members are asked to have a discipline plan on file outlining steps taken to ensure understanding of class and school rules, procedures to be implemented when rules are not followed and positive reinforcement strategies. The county approved Assertive Discipline Plan is the preferred plan for all teachers. (at page 4). . . . PROCEDURES FOR HANDLING STUDENTS WHO ARE SENT TO THE OFFICE. In instances where the routine procedures for handling misbehaving students has not been effective, or if the incident is of a more serious nature, i.e., fighting, defiance of authority, vandalism, teachers will call upon the assistant principal, counselor or principal for assistance. (at page 5) . . . SOME DON'T'S: . . . Put child outside the classroom unsupervised. If a child needs to be excluded from class, send him/her to the office. (at page 7) . . . Accidents and Injury Reports - Student: When a child under your supervision is injured, notify the office and an accident report will be issued. This form must be filled in within 24 hours. (at page 28) At Morningside the teachers pick their students up at the physical education field at the beginning of the school day and escort them to the classroom. During January and February, 1993, Ms. Cohen was late to work three times, resulting in her students being late to class on those days. Ms. Cohen had prepared a discipline plan for the school year which plan provided for a student to have time out in another classroom as part of the progressive discipline. Her discipline plan was posted in her classroom, but had not been filed with the school administrator. Other teachers at Morningside had discipline plans which included time out for students in another classroom. The practice, however, was to not send a child alone. If the teacher or her assistant was unable to accompany the student, the teacher would send two other students to escort the child being disciplined to another classroom. Sometimes the teachers would call the office for assistance. On February 3, 1993, a student in Ms. Cohen's kindergarten class was coloring in a coloring book. Ms. Cohen took the coloring book away from the student. As a disciplinary measure, Ms. Cohen decided to send the student to another classroom for time out. She did not use the call button to alert the principal that she needed assistance. Ms. Cohen took the child to the door of their classroom and told the student to go to Ms. Holden's classroom. Ms. Holden's classroom was down the hall from Ms. Cohen's classroom. The doorway to Ms. Holden's classroom was recessed and could not be seen from Ms. Cohen's doorway. Ms. Cohen saw the student go down the hall but did not see her go into Ms. Holden's classroom. The student did not go into Ms. Holden's classroom, but stood outside and began to cry loudly. A school employee discovered the crying student alone in the hallway and took the student to the office. Morningside is located close to Biscayne Boulevard near an industrial district and a high crime area, known for prostitution and drug dealing. The school is designed with open corridors and no fencing around the school. Vagrants loiter around the school. On May 17, 1993, a conference-for-the-record was held to address the February 3, 1993, incident. Ms. Cohen received a performance evaluation for 1992-93 of unacceptable. On July 14, 1993, a pre-dismissal conference-for-the record was held with Ms. Cohen to address the pending dismissal action scheduled for the School Board meeting of July 21, 1993. At the July 21, 1993, meeting the School Board voted to suspend Ms. Cohen and commence dismissal proceedings against her. The Dade County Public Schools and the United Teachers of Dade have entered into a collective bargaining agreement (Labor Contract) which provides in pertinent part on page 15: ARTICLE VII - SAFE LEARNING ENVIRONMENT Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. . . . E. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to or upon the student's return to the classroom, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Faculty Council/Shared Decision-Making Cadre. At page 88, the Labor Contract provides in pertinent part: Section 3. Workday The employee workday shall be seven hours and five minutes for employees at the elementary level . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. Cohen guilty of incompetency, insubordination and willful neglect of duty, sustaining her suspension without pay, and dismissing her from employment from the School Board of Dade County without back pay. DONE AND ENTERED this 3rd day of February, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4232 The following rulings are made on Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Accepted. Paragraph 3: Accepted in substance. Paragraph 4: The first three sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts actually found. Paragraphs 5-6: Accepted in substance. Paragraph 7: Rejected as not supported by the greater weight of the evidence. Paragraphs 8-18: Accepted in substance. Paragraph 19: Rejected as unnecessary. Paragraph 20: Rejected as immaterial since Ms. Cohen received an acceptable performance evaluation for the year 1991-92. Paragraph 21: Rejected as unnecessary to the facts found. Paragraph 22: Accepted in substance. Paragraph 23: Rejected as unnecessary to the facts found. Paragraphs 24-26: Accepted in substance. Paragraph 27: The first sentence is accepted in substance. The second sentence with the exception of "hysterically" is accepted in substance. The portion of the last sentence that Ms. Cohen was assigned to the region office is accepted and the remainder is rejected as unnecessary. Paragraph 28: The first sentence is accepted in substance. The second sentence is rejected to the extent that Petitioner is inferring that Ms. Cohen did not see the child to the doorway of Ms. Cohen's classroom. Paragraph 29: Accepted in substance. Paragraph 30: The first two sentences are not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 31: Rejected as argument. Paragraph 32: Accepted in substance. Paragraph 33: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting argument. Paragraph 34: Accepted in substance. Paragraph 35: Rejected as constituting argument. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue, Suite One Miami, Florida 33129 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue #403 Miami, Florida 33132-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is a duly- constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
