11-003193TTS Miami-Dade County School Board vs. Lavonda Hankerson Status: Closed Recommended Order on Monday, November 7, 2011.

Summary: Petitioner demonstrated that Respondent committed misconduct, gross insubordination, and violated Petitioner's rules; and, therefore, demonstrated just cause for disciplinary action. Recommendation of suspension without pay for 2011-2012 school year.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 11-3193TTS

)

LAVONDA HANDERSON, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on September 19, 2011, by video teleconference with connecting

sites in Miami and Tallahassee, Florida, before Errol H. Powell,

an Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Arianne B. Suarez, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should be

suspended, without pay, and terminated from all employment with

Petitioner for the offenses set forth in the Notice of Specific

Charges.

PRELIMINARY STATEMENT

On June 15, 2011, the Miami-Dade County School Board

(School Board) took action at its regularly scheduled meeting to

suspend and initiate dismissal proceedings against Lavonda

Hankerson, an instructional employee, for just cause, including

but not limited to, misconduct in office; gross insubordination;

attendance-to-date; and violation of School Board rules 6Gx13-

4A-1.21 , Responsibilities and Duties, 6Gx13- 4A-1.213 , Code of

Ethics, and 6Gx13- 4E-1.01 , Absences and Leaves. Ms. Hankerson

challenged the School Board's action and requested a hearing.

On June 24, 2011, this matter was referred to the Division of

Administrative Hearings.

The parties waived the 60-day hearing requirement set forth

in section 1012.33, Florida Statutes. On August 24, 2011, the

School Board filed a Notice of Specific Charges against

Ms. Hankerson. Prior to hearing, a Joint Pre-Hearing

Stipulation was filed. At hearing, the School Board presented

the testimony of one witness and entered 15 exhibits

(Petitioner's Exhibits numbered 1 through 15) into evidence. 1

Ms. Hankerson testified in her own behalf and entered no

exhibits into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed on October 6,

2011. The parties timely filed their post-hearing submissions,

which were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. No dispute exists that, at all times material hereto,

Ms. Hankerson was an instructional employee with the School

Board.

2. Ms. Hankerson has been a teacher with the School Board

for 11 years, beginning as a teacher with the School Board in

2000. She was first assigned to Renick Education Center.

Subsequently, Ms. Hankerson was transferred to Barbara Goleman

High School (Goleman) in Miami Lakes, Florida.

3. During the 2009-2010 school year, she taught science to

exceptional student education (ESE) students at Goleman.

4. At the beginning of the 2010-2011 school year,

Ms. Hankerson was advised that her department was being

eliminated and that she needed to find another school at which

to work if she desired to continue her employment with the

School Board. She sought other schools and received an email

from Howard McMillan Middle School (McMillan) to come for an

interview. She accepted a teaching position at McMillan,

effective September 20, 2010.

5. While working at Goleman in Miami Lakes, Florida,

Ms. Hankerson resided in Miami Shores, Florida. Her residence

was in close proximity to Goleman. She had three children and

was able to get her children to school and report to Goleman in

a timely manner throughout her tenure at Goleman.

6. Ms. Hankerson's travel time to McMillan was

significantly greater than to Goleman due to McMillan being

located further south than Goleman. 2

7. During the 2010-2011 school year, all teachers at

McMillan were required to report to work at 8:30 a.m.

Professional meetings, which consisted of team meetings and

department meetings, were held from 8:30 a.m. until 9:00 a.m.

Team meetings were held three days a week. Department meetings

were held two days a week, where teachers meet by department to

discuss curricular activities and requirements. Faculty

meetings were held every other Tuesdays, and, when faculty

meetings occurred, no professional meetings were held because

the faculty meetings replaced the professional meetings.

8. At 9:00 a.m., teachers went to their respective

classroom to meet their students, who began arriving at

9:00 a.m. Instruction began at 9:10 a.m., with homeroom

followed by advisement, where the Comprehensive Research Reading

Plan was implemented, and ended at 9:46 a.m. First period began

at 9:56 a.m. School ended at 3:50 p.m.

9. Ms. Hankerson was assigned a homeroom class. The

students in her classroom consisted of eighth grade students,

who were not performing at grade level in reading and were FCAT

Level 1 students in reading.

10. Ms. Hankerson's first period (Period 1) was a seventh

grade civics class. Her students consisted of ESE students,

with varying exceptionalities. She was the sole teacher.

11. Ms. Hankerson was a co-teacher for four periods of the

remaining school day, teaching science. The students for the

four periods consisted of general education students and ESE

students. Ms. Hankerson was the ESE teacher, and the other

teacher was the general education teacher, who generally took

the lead in the classroom. The second period (Period 2) was a

seventh grade science class; the third period (Period 3) was an

eighth grade science class; the fourth period (Period 4) was a

sixth grade science class; and the sixth period (Period 6) was a

seventh grade science class. Her fifth period (Period 5) was a

planning period.

12. No dispute exists that Ms. Hankerson's employment with

the School Board is subject to, among other things, a

professional service contract, a collective bargaining agreement

(Agreement) between the School Board and the United Teachers of

Dade (UTD), and policies and procedures of the School Board.

13. School Board Policy and the Agreement provide teachers

with one sick day of leave every month. At the beginning of

each school year, each teacher is given, up front, four days of

sick leave that the teacher can use. However, the accrual of

sick leave is one sick leave day per month for the ten-month

period that a teacher is employed with the School Board,

totaling ten sick days of leave. During the ten-month period,

if a teacher takes leave exceeding the ten days and does not

have leave that is "banked," which is leave that is carried over

from one school year to the next, it results in leave without

pay, unauthorized.

14. In a medical situation, if a teacher knows that he or

she will be absent for an extended period of time, the teacher

would apply for leave. If the absence will be over 30 days, the

teacher would apply for medical leave and can use leave that is

banked. However, if no leave is banked, it results in leave

without pay, unauthorized.

15. If a teacher is going to be absent from work, the

teacher is required to call into a dedicated-absence telephone

line at least one hour before the start of the workday. On the

day that the teacher is absent, the teacher is also required to

call his or her school 30 minutes prior to the scheduled student

dismissal time, indicating whether he or she will report to work

on the next workday in order for the school to make arrangements

for a substitute teacher.

16. A teacher, who is absent without prior approval, is

deemed to have been willfully absent without leave, except in a

situation of sudden illness or an emergency situation.

17. Immediately upon beginning at McMillan, Ms. Hankerson

began arriving late and using her sick days. Eight days after

beginning at McMillan, on September 28, 2010, she took a sick

leave day; on October 1, 2010, she took one day of leave without

pay, unauthorized; and on October 13 and 19, 2010, she took one

sick leave day and one-half sick leave day, respectively.

18. On October 21, 2010, while she was at McMillan,

allegations, unrelated to the instant case, involving

inappropriate conduct and remarks were made against

Ms. Hankerson. Effective October 22, 2010, she was removed from

McMillan and placed at the School Board's Region office, pending

an investigation. A substitute teacher was hired to take over

Ms. Hankerson's classes. The allegations were referred for

investigation to the School Board's Civilian Investigative Unit.

19. Ms. Hankerson was assigned to the Region office from

October 22, 2010, through February 22, 2011. While at the

Region office, Ms. Hankerson continued her pattern of absences.

Between October 22, 2010, and February 22, 2011, she accumulated

an additional 18 days of absences: five and one-half days of

leave without pay, unauthorized; seven days of leave without

pay, authorized; and five and one-half days of sick leave.

20. The investigation into the allegations was concluded.

At a Conference-For-The-Record (CFR) held by the School Board's

Office of Professional Standards (OPS) on November 29, 2010,

memorialized in a Summary of CFR dated December 3, 2010,

Ms. Handerson was advised that probable cause existed for

violations of School Board rules 6Gx13- 4A-1.21 , Responsibilities

and Duties, and 6Gx13- 4A-1.213 , Code of Ethics. At the CFR, the

OPS provided her with a copy of the School Board rules; The Code

of Ethics and the Principles of Professional Conduct of the

Education Profession in Florida; and a document titled "How to

Use Common Sense and Professional Judgment to Avoid Legal

Complications in Teaching." Additionally, the OPS issued her

directives, including adhere to all the School Board's rules and

regulations; and comport, both at the workplace and in the

community, in a manner that reflects credit upon herself and the

School Board.

21. By letter dated February 10, 2011, Ms. Hankerson was

notified that the School Board had taken action, at its meeting

on February 9, 2011, to suspend her without pay for five

workdays from February 10, 2011, through February 16, 2011.

Further, the letter notified her to report to work at McMillan

on February 17, 2011.

22. However, Ms. Hankerson did not serve the suspension

from February 10, 2011, through February 16, 2011. The

suspension was rescheduled to February 22 through 28, 2011, with

her return to McMillan on March 1, 2011.

23. Having served her suspension on February 22 through

28, 2011, Ms. Hankerson failed to return to McMillan on March 1,

2011. Moreover, she failed to call the dedicated absence

telephone line at McMillan, the Absence Reporting System (ARS),

one hour prior to the workday on March 1, 2011, to state that

she would not report to work that day; and failed to call 30

minutes before the scheduled student dismissal on March 1, 2011,

to state whether she would report to work on March 2, 2011.

24. On March 2, 2011, Ms. Hankerson reported to McMillan

for work and, also, reported ten minutes late, at 8:40 a.m.

That same morning, McMillan's principal, Hilca Thomas, met with

Ms. Hankerson and advised her that she (Ms. Hankerson) was

required to report to work on March 1, 2011, not March 2, 2011;

and that March 1, 2011, would be reported as leave without pay,

unauthorized. Ms. Hankerson blamed the arrival on March 2,

2011, instead of March 1, 2011, on a miscommunication between

her and the UTD representative.

25. Further, Ms. Thomas reminded Ms. Hankerson of the

hours of work and the attendance procedures, including

communicating absences using the ARS. Ms. Hankerson stated that

she would "not make it in at 8:30"; that she would "be late

almost every morning because of [her] children and [she] live[s]

far [away]"; and that being late was "unavoidable."

26. Additionally, Ms. Thomas advised Ms. Hankerson that

her (Ms. Hankerson's) undergarment was exposed and that she was

not wearing appropriate attire. Ms. Hankerson abruptly left

Ms. Thomas' office stating that she was going to UTD's office

downtown. Shortly thereafter, around 9:15 a.m., Ms. Henderson

returned to Ms. Thomas' office, but a substitute teacher was

already deployed to Ms. Hankerson's classroom. As a result,

Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) could

leave for the day and directed Ms. Hankerson to report back to

McMillan for work on March 3, 2011.

27. The events on March 2, 2011, were memorialized in a

memorandum from Ms. Thomas to Ms. Hankerson on that same date.

Ms. Hankerson acknowledged receiving a copy of the memorandum.

28. The evidence demonstrates that the directives to

Ms. Hankerson from Ms. Thomas to report to work at 8:30 a.m. and

to follow the procedures for absences were reasonable. Further,

the evidence demonstrates that Ms. Thomas had the authority to

give the directives.

29. Ms. Hankerson failed to report to work at McMillan on

March 3, 2011. Also, she failed to report to work on March 4,

2011. Both days were reported as leave without pay,

unauthorized.

30. Ms. Hankerson reported to work at McMillan on March 7,

2011, the next school day, at which time she was issued an

Absence from Worksite Directive by Ms. Thomas.

31. The Absence from Worksite Directive advised

Ms. Hankerson, among other things, that attendance and

punctuality were essential functions of her job and that, since

September 20, 2010, she had accumulated 25.5 absences. 3 The

absences were reflected as four absences within her first month

at McMillan (September 20 through October 22, 2010); 17.5

absences when she was assigned to the Region office during the

investigation; and four absences when she was to report back to

McMillan between March 1 and 4, 2011.

32. Additionally, the Absence from Worksite Directive

instructed Ms. Hankerson on the proper procedures to obtain

authorized leave of absence. She had failed to avail herself of

the proper procedures to obtain authorized leave of absence.

33. Further, the Absence from Worksite Directive advised

Ms. Hankerson that her noncompliance with the directives would

be considered a violation of professional responsibilities and

insubordination.

34. On March 7, 2011, Ms. Hankerson acknowledged receiving

the Absence from Worksite Directive by signing the document.

35. The evidence demonstrates that the directives issued

to Ms. Hankerson by Ms. Thomas in the Absence from Worksite

Directive were reasonable. Further, the evidence demonstrates

that Ms. Thomas had the authority to issue the directives.

36. Ms. Hankerson failed to abide by and comply with the

directives.

37. On March 10, 2011, three days after receiving the

Absence from Worksite Directive, Ms. Hankerson arrived at

McMillan late, 9:50 a.m. Ms. Thomas met with Ms. Hankerson on

the same day of the tardiness and reminded her (Ms. Hankerson)

of the directives. Additionally, Ms. Thomas advised

Ms. Hankerson that she (Ms. Hankerson) was inappropriately

dressed. Ms. Thompson reported the absence as a half-day leave

without pay, unauthorized.

38. On March 11, 2011, Ms. Hankerson arrived at McMillan

late, 8:50 a.m. Ms. Thomas met with Ms. Hankerson on the same

day of the tardiness and advised her (Ms. Hankerson) that,

because she (Ms. Hankerson) had failed to call-in to the ARS, a

substitute had been hired for the day. Ms. Thompson reported

the absence as one day leave without pay, unauthorized.

39. On March 21, 2011, Ms. Hankerson failed to report to

McMillan. Additionally, she failed to call-in to the ARS to

state whether she would be reporting to work on March 22, 2011,

and, as a result, Ms. Thomas hired a substitute for March 22,

2011. Ms. Thomas met with Ms. Hankerson on March 22, 2011, and

reviewed the absence with her (Ms. Hankerson); reported

Ms. Hankerson's absence as unauthorized; and advised

Ms. Hankerson that a substitute was hired for the day.

Ms. Thompson reported each absence as one-day leave without pay,

unauthorized.

40. On March 29, 2011, Ms. Hankerson left McMillan

approximately an hour early, at 2:45 p.m., without prior

approval and without signing-out. Also, she failed to attend

her class at Period 6. Ms. Thompson reported the absence as a

half-day leave without pay, unauthorized.

41. The next day, March 30, 2011, Ms. Hankerson did not

report to McMillan. Ms. Thompson reported the absence as one

day leave without pay, unauthorized.

42. The following day, March 31, 2011, Ms. Hankerson left

McMillan approximately 30 minutes early, at 3:20 p.m., without

prior approval and without signing-out. Additionally, she

failed to attend her class at Period 6. Ms. Thompson reported

the absence as a half-day leave without pay, unauthorized.

43. The next day, April 1, 2011, Ms. Hankerson left

McMillan at 12:30 p.m., without prior approval and without

signing-out. Also, she failed to attend her classes at Periods

4 and 6. Ms. Thompson reported the absence as a half-day leave

without pay, unauthorized.

44. On April 4, 2011, Ms. Hankerson left McMillan at

10:47 a.m., without prior approval and without signing-out.

Ms. Thompson reported the absence as one day leave without pay,

unauthorized.

45. The following day, April 5, 2011, Ms. Hankerson

arrived at McMillan a little over one-half hour late, at

9:03 a.m. Ms. Thomas met with Ms. Hankerson, regarding the

attendance, and informed her (Ms. Hankerson's) that the early

departures from McMillan would be reported as leave without pay,

unauthorized. Further, Ms. Thomas provided Ms. Hankerson with

notification of a CFR to be held on April 8, 2011.

46. The next day, April 6, 2011, Ms. Hankerson did not

report to McMillan. Additionally, she failed to call-in to the

ARS to state whether she would be reporting to work on April 7,

2011, and, as a result, Ms. Thomas hired a substitute for

April 7, 2011.

47. The CFR on April 8, 2011, was scheduled for 3:00 p.m.

Even though Ms. Hankerson had reported to McMillan for the

workday, she did not appear at the CFR at the scheduled time.

When an "all call" was made over the public address system for

her at 3:20 p.m., Ms. Hankerson responded and was informed that

should report to the CFR. However, she did not arrive at the

CFR until 3:49 p.m. and informed Ms. Thomas, among other things,

that the CFR should proceed without her (Ms. Hankerson) because

her (Ms. Hankerson's) children were home alone and she

(Ms. Hankerson) was leaving at 3:50 p.m., the end of the

workday.

48. Ms. Hankerson left, and the CFR proceeded without her.

The attendees at the CFR included Ms. Thomas; the assistant

principal; and the UTD Representative. The purpose of the CFR

was to address Ms. Hankerson's insubordination regarding

previously issued attendance directives, and her noncompliance

to School Board rules 6Gx13- 4E-1.01 , Absences and Leaves, 6Gx13-

4A-1.213 , Code of Ethics, 6Gx13- 4A-1.21 , Responsibilities and

Duties; and to review her record and future employment status

with the School Board.

49. A Summary of the CFR was prepared by Ms. Thomas on

April 18, 2011. The Summary for the CFR included a delineation

of Ms. Hankerson's absences, reflecting that, since the issuance

of the Absence of Worksite Directive on March 7, 2011, through

April 15, 2011, Ms. Hankerson had accumulated one-half day

absence of leave without pay, authorized; 10.5 days absence of

leave without pay, unauthorized; one temporary duty day; and one

personal day. 4 Furthermore, the Summary for the CFR reflected

that, as of April 15, 2011, for the 2010-2011 school year,

Ms. Hankerson had accumulated a total of 46 absences. 5

50. The Summary for the CFR contained directives to

Ms. Hankerson. The directives included: adherence to School

Board rules 6Gx13- 4E-1.01 , Absences and Leaves, 6Gx13- 4A-1.213 ,

Code of Ethics, 6Gx13- 4A-1.21 , Responsibilities and Duties; to

report to work and depart from work daily at the scheduled

hours; be in regular attendance at the worksite and on time;

adhere to attendance directives previously issued; communicate

any intent to be absent directly to the principal and by calling

the ARS; the reporting of future absences will be leave without

pay, unauthorized, unless documentation showing qualification

under the Family Medical Leave Act (FMLA) or other leave of

absence is provided; and for imminent absences, leave must be

requested and procedures for School Board approved leave

implemented, and the FMLA or Americans with Disabilities Act

(ADA) requirements, if applicable, must be complied with.

Ms. Hankerson was advised that failure to comply with the

directives would lead to further review for disciplinary action

and would be considered gross insubordination.

51. Further, the Summary for the CFR advised Ms. Hankerson

that she would be issued a letter of reprimand.

52. Ms. Hankerson acknowledged receipt of the Summary for

the CFR on April 18, 2011, by signing the Summary for the CFR.

53. The evidence demonstrates that the directives to

Ms. Hankerson from Ms. Thomas at the CFR and the Summary for the

CFR were reasonable. Further, the evidence demonstrates that

Ms. Thomas had the authority to give the directives.

54. On April 18, 2011, Ms. Thomas issued Ms. Hankerson a

Reprimand. The Reprimand was based on Ms. Hankerson's failure

to comply with the previous directive issued to Ms. Hankerson

regarding attendance and professional responsibilities.

Additionally, the Reprimand advised Ms. Hankerson that any

recurrence of the noncompliance might lead to disciplinary

action and would be considered gross insubordination.

55. Ms. Hankerson acknowledged receipt of the Reprimand on

April 18, 2011, by signing the Reprimand.

56. Ms. Hankerson failed to comply with the directives

issued in the Summary for the CFR.

57. On the same day of the Reprimand, April 18, 2011,

Ms. Hankerson was absent one-half day, reported as leave without

pay, unauthorized. Two days thereafter, she was absent for

three consecutive days, April 20 through 22, 2011, each day

being reported as leave without pay, unauthorized. Having

worked the next school day, April 25, 2011, Ms. Hankerson was

absent one-half day on April 26, 2011, reported as leave without

pay, unauthorized; absent one-half day on April 27, 2011,

reported as leave without pay, unauthorized; and absent one day

on April 28, 2011, reported as leave without pay, unauthorized.

Additionally, she was tardy for work on April 27, 2011. From

April 18 through 28, 2011, she had a total of five and one-half

absences.

58. Due to these recent absences and tardiness, on

April 28, 2011, Ms. Thomas issued Ms. Hankerson a Continued

Failure to Comply with Re-Issued Directives memorandum. The

absences and tardiness were listed in the memorandum, and

Ms. Hankerson was advised that the absences were reported as

leave without pay, unauthorized. Further, Ms. Hankerson was

advised that she had continued to be absent, tardy, and

insubordinate; that her continued failure to comply with the

reissued directives resulted in gross insubordination; and that,

therefore, the memorandum would be forwarded to OPS for gross

insubordination and further disciplinary action. She

acknowledged receipt of the Continued Failure to Comply with Re-

Issued Directives memorandum on April 18, 2011, by signing it.

59. The evidence demonstrates that the re-issued

directives to Ms. Hankerson from Ms. Thomas were reasonable.

Further, the evidence demonstrates that Ms. Thomas had the

authority to give the directives.

60. Ms. Hankerson's absences, tardiness, and early

departures continued. On May 2 through 4, 2011, she was absent

one day each date; May 5, 6, and 13, 2011, she was absent one-

half day each date; and May 16, 2011, she was absent one day;

totaling five and one-half days of absences, which were reported

as leave without pay, unauthorized. Also, Ms. Hankerson was

tardy seven times, on May 5, 6, 10 through 13, and 17, 2011,

which were unauthorized. Additionally, she departed McMillan

early two times, on May 6 and 13, 2011, which were unauthorized.

61. Due to these recent absences, tardiness, and early

departures, on May 17, 2011, Ms. Thomas issued Ms. Hankerson a

Continued Failure to Comply with Re-Issued Directives

memorandum. The absences, tardiness, and early departures were

listed in the memorandum, and Ms. Hankerson was advised that the

absences were reported as leave without pay, unauthorized.

Further, Ms. Hankerson was advised that she had continued to be

insubordinate; that her continued failure to comply with the

reissued directives resulted in gross insubordination; and that,

therefore, the memorandum would be forwarded to OPS for gross

insubordination and further disciplinary action. She

acknowledged receipt of the Continued Failure to Comply with Re-

Issued Directives memorandum on May 17, 2011, by signing it.

62. The evidence demonstrates that the second re-issued

directives to Ms. Hankerson from Ms. Thomas were reasonable.

Further, the evidence demonstrates that Ms. Thomas had the

authority to give the directives.

63. At the time of the Continued Failure to Comply with

Re-Issued Directives memorandum on May 17, 2011, Ms. Hankerson

had accumulated 57 absences. Additionally, she had multiple

instances of tardiness and early departures.

64. A CFR was held by OPS. Persons in attendance included

the Director of OPS; Ms. Thomas; and Ms. Hankerson and her UTD

Representative. At the CFR, Ms. Hankerson was provided an

opportunity to respond. OPS recommended termination of

Ms. Hankerson's employment for gross insubordination and

violation of School Board's rules concerning Responsibilities

and Duties, Code of Ethics, and Absences and Leaves.

65. After the CFR at OPS, Ms. Hankerson reported for work

at McMillan only on June 7, 2011, and June 9, 2011, which was

the last day of the 2010-2011 school year. On June 9, 2011, she

arrived late, signed-in, and left McMillan shortly thereafter,

not remaining at work the entire time set-aside for the last

day.

66. From the time that she began at McMillan until the

time of the recommendation by OPS, Ms. Hankerson had accumulated

57 absences during the 2010-2011 school year. Of the 57

absences, 18.5 absences occurred during the time that she was

assigned to the Region office, not in the classroom.

67. Ms. Hankerson's absences and tardiness negatively

impacted the role of Ms. Thomas as the principal and leader of

McMillan. Often times, due to Ms. Hankerson's tardiness,

Ms. Thomas had no choice but to take over Ms. Hankerson's

homeroom class; and when she (Ms. Thomas) was unable to do so,

she (Ms. Thomas) had to find another teacher to cover the

homeroom class until Ms. Hankerson arrived. Additionally, when

Ms. Thomas had no notice that Ms. Hankerson would be absent,

Ms. Thomas had no choice but to take over Ms. Hankerson's

homeroom class until a substitute, who had to contacted at the

last minute because of no prior notice, arrived; and when she

(Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find

another teacher to cover the homeroom class until the substitute

arrived.

68. As a result of the recommendation of OPS, the

Superintendent recommended to the School Board the suspension,

without pay, and termination of the employment of Ms. Hankerson.

At its regularly scheduled meeting held on June 15, 2011, the

School Board took action to suspend, without pay, Ms. Hankerson

and initiate dismissal proceedings against her from all

employment for just cause, including, but not limited to:

misconduct in office; gross insubordination; attendance-to-date;

and violation of School Board rules 6Gx13- 4A-1.21 ,

Responsibilities and Duties, 6Gx13- 4A-1.213 , Code of Ethics, and

6Gx13- 4E-1.01 , Absences and Leaves.

69. Ms. Hankerson does not refute the absences, the

tardiness, or the early departures.

70. For the instances of tardiness, Ms. Hankerson

testified at hearing that she would call-in before 8:30 a.m. and

state that she was en-route and would be late. The School Board

did not refute her assertion. Despite her calling-in,

Ms. Hankerson admitted that Ms. Thomas did not tolerate her

(Ms. Hankerson's) tardiness and took the action previously

mentioned. Ms. Hankerson's testimony is found to be credible.

71. On March 2, 2011, Ms. Hankerson informed Ms. Thomas

that arriving late for work at McMillan was unavoidable because

she (Ms. Hankerson) took her (Ms. Hankerson's) children to

school and she (Ms. Hankerson) lived so far away from McMillan.

72. Additionally, around April 2011, Ms. Hankerson

informed Ms. Thomas that she (Ms. Hankerson) was going through a

divorce.

73. At hearing, Ms. Hankerson testified that, during

March, April, May, and June 2011, she was having marital

problems and living sometimes at home and sometimes with her

mother in Fort Lauderdale, Florida, which was approximately 28

miles from McMillan. Ms. Hankerson took her children to school,

but, when she lived with her mother, she would not leave them at

their school in the mornings alone if it was dark. She

testified further that she was being investigated by the

Department of Children and Families regarding allegations of

neglect and being an unfit mother. Additionally, she testified

that she was having financial problems. Ms. Hankerson's

testimony is found to be credible. However, she did not provide

these details to Ms. Thomas.

74. Further, Ms. Hankerson testified that, for April, May,

and June 2011, she considered taking leave using the FMLA and

contacted her UTD Representative. Ms. Hankerson decided not to

take leave using the FMLA. The UTD Representative did not

testify at the hearing. Ms. Hankerson's testimony is found to

be credible. Again, Ms. Hankerson did not provide this detail

to Ms. Thomas.

75. Ms. Hankerson testified that the circumstances that

she indicated caused her absences, tardiness, and early

departures have been resolved. Her testimony is found to be

credible.

76. Before working at McMillan on September 20, 2010,

Ms. Hankerson had no prior disciplinary action taken against her

by the School Board.

CONCLUSIONS OF LAW

77. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2011).

78. No dispute exists that the School Board has the burden

of proof to show by a preponderance of the evidence that

Ms. Hankerson should be terminated. McNeil v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. Sch. Bd.

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

79. Section 1012.01, Florida Statutes (2010), provides in

pertinent part:

(2) INSTRUCTIONAL PERSONNEL.--

"Instructional personnel" means any K-12

staff member whose function includes the

provision of direct instructional services

to students. Instructional personnel also

includes K-12 personnel whose functions

provide direct support in the learning

process of students. Included in the

classification of instructional personnel

are the following K-12 personnel:

(a) Classroom teachers.--Classroom teachers

are staff members assigned the professional

activity of instructing students in courses

in classroom situations, including basic

instruction, exceptional student education,

career education, and adult education,

including substitute teachers.

80. No dispute exists that Ms. Hankerson is an

instructional employee.

81. Florida Administrative Code Rule 6B-1.001, titled

"Code of Ethics of the Education Profession in Florida,"

provides:

(1) 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.

(2) 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.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

82. Florida Administrative Code Rule 6B-1.006, titled

"Principles of Professional Conduct for the Education Profession

in Florida," provides in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) 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.

(3) Obligation to the student requires that

the individual:

(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.

83. Florida Administrative Code Rule 6B-4.009, titled

"Criteria for Suspension and Dismissal," provides in pertinent

part:

(3) Misconduct in office is defined as a

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.

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

84. The School Board established that Ms. Hankerson

committed misconduct in office, so serious as to impair her

effectiveness in the school system. Her absences were excessive

and, because of her excessive absences, she was unable to

provide her ESE students with a minimal educational experience,

whether she was the sole teacher or the co-teacher.

Additionally, many of the absences were without prior notice.

Further, any absence without prior approval was deemed willful.

Ms. Hankerson's absences impaired the learning environment of

the ESE students. Furthermore, due to her excessive absences,

her impaired effectiveness for the ESE students could also be

and is also inferred. See Summers v. Sch. Bd. of Marion Cnty. ,

666 So. 2d 175 (Fla. 5th DCA 1996). The evidence demonstrated

that she violated Florida Administrative Code Rules 6B-1.001 and

6B-1.006, regarding the students, to the extent that her conduct

impaired her effectiveness in the school system. Fla. Admin.

Code R. 6B-1.001 and 6B-1.006(3)(a). Hence, the School Board

demonstrated by a preponderance of the evidence that

Ms. Hankerson committed misconduct in office, so serious as to

impair her effectiveness in the school system, violating Florida

Administrative Code Rules 6B-1.001, 6B-1.006, and 6B-4.009(3).

85. The School Board established that Ms. Hankerson

committed gross insubordination. Insubordination has been

characterized as "generally . . . persistent, willful or overt

defiance of authority . . . . Inherent in a finding of

insubordination, however, is a finding that the orders given

were within the authority of the person giving them."

McAllister v. Fla. Career Serv. Comm'n , 383 So. 2d 940, 941

(Fla. 1st DCA 1980), citing Muldrow v. Bd. of Pub. Instruction

of Duval Cnty. , 189 So. 2d 414, 415 (Fla. 1st DCA 1966).

86. The evidence demonstrates that Ms. Thomas had the

proper authority to give Ms. Hankerson a direct order. After

returning to McMillan from her suspension, on March 7, 2011,

Ms. Hankerson was given a directive regarding her attendance and

punctuality. On April 8, 2011, during a CFR, Ms. Hankerson was

given directives again regarding her absences, tardiness, and

early departures. On April 18, 2011, Ms. Hankerson was given a

reprimand for failure to comply with the directive of March 7,

2011. The evidence demonstrates that the directives were

reasonable. Further, the evidence demonstrates that

Ms. Hankerson nevertheless continued to fail to comply with the

directives and was issued notices of her continued failure to

comply. Additionally, the absences without prior approval were

deemed willful. Hence, the School Board demonstrated by a

preponderance of the evidence that Ms. Hankerson committed gross

insubordination, violating Florida Administrative Code Rule 6B-

4.009(4).

87. The School Board's interpretation of its own rules is

given great deference unless it amounts to an unreasonable

interpretation or is clearly erroneous. Woodley v. Dep't of

HRS , 505 So. 2d 676, 678 (Fla. 1st DCA 1987).

88. School Board Rule 6Gx13- 4A-1.21 , Responsibilities and

Duties, provides in pertinent part:

I. Employee Conduct

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.

* * *

Instructional Personnel

Members of the instruction staff, subject to

the rules of the State and District Rules,

shall teach efficiently and faithfully,

using the books and materials required,

following the prescribed courses of study,

and employing approved methods of

instruction as provided by law and by the

rules of the State Department of Education.

Members of the instructional staff shall

keep abreast of development in their subject

area through attendance at professional

meetings, acquaintance with professional

publications, and participation in

inservices [sic] activities.

89. Ms. Hankerson continually and repeated failed to

comply with the directives given her regarding absences,

tardiness, and early departures. Due to her excessive absences,

she failed to perform her responsibilities and duties as a

school teacher. As a result, she failed in her employment to

conduct herself in a manner that reflected credit upon herself

and the school system. Further, by failing to attend her

morning professional meetings at McMillan because of her

absences and tardiness, Ms. Hankerson failed to keep abreast of

development in her subject area through attendance at the

morning professional meetings. The evidence demonstrates that

Ms. Hankerson violated School Board Rule 6Gx13- 4A-1.21 ,

Responsibilities and Duties.

90. School Board Rule 6Gx13- 4A-1.213 , Code of Ethics,

provides in pertinent part:

I. INTRODUCTION

All members of The School Board of Miami-

Dade County, Florida, administrators,

teachers and all other employees of Miami-

Dade County Public Schools, regardless of

their position, because of their dual roles

as public servants and educators are to be

bound by the following Code of Ethics. . . .

As stated in the Code of Ethics of the

Education Profession in Florida (State Board

of Education Rule 6B-1.001):

* * *

2. 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.

3. 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.

* * *

II. APPLICATION

This Code of Ethics applies to all members

of The School Board of Miami-Dade County,

Florida, administrators, teachers, and all

other employees. The term "employee," as

used herein, applies to all these groups

regardless of full or part time

status. . . .

* * *

III. FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

Pursuit of Excellence – Doing your best with

the talents you have, striving toward a

goal, and not giving up.

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 major

forms: respect oneself, respect for other

people, and respect for all forms of life

and the environment.

Responsibility – Thinking before you act and

being accountable for your 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:

1. To abide by this Code of Ethics, making

the well-being of the students and the

honest performance of professional duties

core guiding principles.

2. To obey local, state and national laws,

codes and regulations.

3. To support the principles of due process

to protect the civil and human rights of all

individuals.

4. To treat all persons with respect and to

strive to be fair in all matters.

5. To take responsibility and be

accountable for his or her actions.

6. To avoid conflicts of interest or any

appearance of impropriety.

7. To cooperate with others to protect and

advance the District and its students.

8. To be efficient and effective in the

delivery of job duties.

* * *

V. CONDUCT REGARDING STUDENTS

As set forth in the Principles of

Professional Conduct for the Education

Profession in Florida, each employee:

1. 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.

91. The evidence demonstrates that Ms. Hankerson violated

School Board Rule 6Gx13- 4A-1.213 , Code of Ethics.

92. Hence, the School Board demonstrated that just cause

exists for the suspension, without pay, of Ms. Hankerson.

93. However, in terms of termination of Ms. Hankerson,

mitigating factors should be considered. She has been a teacher

with the School Board for 11 years and, prior to beginning with

McMillan for the 2010-2011 school year, she has had no

disciplinary action. Furthermore, during the 2010-2011 school

year, she was going through a difficult divorce. Additionally,

she was not in the classroom from October 22, 2010, through

February 22, 2011, but in the Region's office, pending an

investigation by the School Board's Civilian Investigative Unit.

Under such circumstances, suspension, without pay, would be more

appropriate than termination.

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 suspending Lavonda Hankerson, without pay, for the

2011-2012 school term and under other terms and conditions

deemed appropriate by the Miami-Dade County School Board.

DONE AND ENTERED this 7th day of November, 2011, in

Tallahassee, Leon County, Florida.

________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of November, 2011.

ENDNOTES

1/ One exhibit by the School Board (Petitioner's Exhibit

numbered 16) was rejected.

2/ Ms. Hankerson was unable to quantify the amount of time for

traveling from her residence, taking her children to school, and

arriving at McMillan.

3/ The Absence from Worksite Directive contained an error in the

total number of absences reported as LWOA.

4/ Three absences were included on the Summary for the CFR that

were not included on the Absence From Worksite Directive: on

September 9, 2010, a one-day absence of sick leave; on

September 17, 2010, a one-day absence of leave without pay,

authorized; and on February 21, 2011, a one-day absence of leave

without pay, authorized. Additionally, the one-day absence of

leave without pay, authorized, for November 19, 2010, was a one-

half day absence of leave without pay, authorized, on the

Summary for the CFR, instead of one-day absence of leave without

pay, authorized, on the Absence From Worksite Directive.

5/ The Summary for the CFR included the five days of suspension

on February 22, 23, 24, 25, and 28, 2011.

COPIES FURNISHED:

Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132-1308

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Arianne B. Suarez, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.