02-004565 Miami-Dade County School Board vs. Gloria P. Adams
 Status: Closed
Recommended Order on Friday, May 30, 2003.


View Dockets  
Summary: Teacher who cannot establish that she is fit for duty is subject to termination when School Board offers multiple opportunities through Employees` Assistance Program.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MIAMI - DADE COUNTY SC HOOL BOARD, )

16)

17Petitioner, )

19)

20vs. ) Case No. 02 - 4565

27)

28GLORIA P. ADAMS, )

32)

33Respondent. )

35_________________________________)

36RECOMMENDED ORDER

38Pursuant to notice, a formal hearing was held in this

48case on February 18, 2003, in Miami, Florida, before J. D.

59Parrish, a designated Administrative Law Judge of the Division

68of Administrative Hearings.

71APPEARANCES

72For Petitioner: Melinda L. McNichols, Esquire

78Miami - Dade County School Board

841450 Northeast Second Avenue

88Suite 400

90Miami, Florida 33132

93For Respondent: Gloria P. Adams, pro se

10019511 Northwest 8th Avenue

104Miami, Florida 33169

107STATEMENT OF THE ISSUES

111Whether the Respondent, Gloria P. Adams, violated School

119Board rules regarding a drug - free workplace, and excessive

129absenteeism; whether she abandoned her position of employment;

137whether Respondent committed gross insubordination or willful

144neglect of duty; and if so, whether such violation(s) support

154termination of Respondent's employment with the School

161District.

162PRELIMINARY STATEMENT

164On November 20, 2002, the Petitioner, School Board of

173Miami - Dade County, Florida (Petitioner, School Board or School

183District) took action to suspend and initiate dismissal

191proceedings against the Respondent, Gloria P. Adams. The

199action was based on just cause determined from alleged

208violations of School Board rules. More specifically, the

216Petitioner claimed that the Respond ent had committed gross

225insubordination, willful neglect of duties, and had violated

233the School District's policy on drug - free workplace. The

243Respondent timely contested the action.

248The School Board forwarded the case to the Division of

258Administrative Hearings for formal proceedings on November 25,

2662002. Thereafter the matter was promptly scheduled for final

275hearing.

276At the hearing, the School Board presented testimony from

285Betty Major, Sharon Jackson, and Jose Garcia. The

293Petitioner's Exhibits 1 - 5 were offered and received in

303evidence. The Respondent attended the final hearing but

311offered no evidence in support of her case.

319The transcript of the proceedings was filed on April 28,

3292003. The Petitioner timely filed a Proposed Recommended

337Order that has been considered in the preparation of this

347order. The Respondent has not filed a Proposed Recommended

356Order.

357FINDINGS OF FACT

3601. At all times material to the allegations of this

370case, the Petitioner is the authority charged with the

379responsibility of op erating, controlling, and supervising all

387public schools within the Miami - Dade County, Florida School

397District. As such, its duties also include the personnel

406decisions related to teachers employed by the School District.

4152. At all times material to the allegations of this

425matter, the Petitioner employed the Respondent pursuant to a

434professional services contract. The Respondent was assigned

441to serve as a teacher at Jan Mann Opportunity School.

4513. On December 21, 2001, the Respondent presented for

460work staggering (in fact she fell down) with a disheveled

470appearance. At that time Respondent spoke with slurred speech

479and used verbally aggressive words. Based upon her appearance

488and actions, together with what was perceived as a strong odor

499of alcohol, the Respondent's supervisor determined that she

507should complete a "reasonable suspicion form." The form is

516designated when an employee is suspected of drug and/or

525alcohol use on school property.

5304. Betty Major completed the form (Petitioner's Exhibit

5381) and noted Respondent's unsteady gait as well as the other

549indicators of being under the influence. Moreover, the

557Respondent admitted she had been drinking alcohol the night

566before.

5675. During the interview conducted by Ms. Major, the

576Respondent exhibited marked irritability and expressed anger.

583As a result, the Respondent was relieved of duty. The

593Respondent subsequently refused to submit to a drug and

602alcohol screening.

6046. On January 10, 2002, the School Board's Office of

614Professional Standards held a conference - for - the - record (CFR)

626and informed the Respondent that the refusal to submit to drug

637and alcohol screening would be considered a positive test

646response. The details of the CFR are memorialized in

655Petitioner's Exhibit 2.

6587. At the CFR the Respondent was also advised that she

669had excessive absences. Although the Respondent maintained

676she was physically ill and unable to attend school,

685documentation from a treating physician to support the number

694of absences has not been provided.

7008. At the con clusion of the CFR, the Respondent was

711provided with a copy of the School Board rule regarding its

722policy for a drug - free workplace, a copy of the

733responsibilities and duties rule, and the code of ethics of

743the Education Profession in Florida. The CFR was concluded

752with an indication from Respondent that she would promptly

761address the issues raised therein.

7669. As part of the CFR the Respondent was advised of her

778opportunity to obtain assistance through the Employees'

785Assistance Program (EAP). Among its f unctions the EAP

794counsels School Board employees with substance or drug abuse

803concerns. Alcohol is considered a "drug" under the drug - free

814workplace policy.

81610. The Respondent initially agreed to complete the EAP

825requirements in order to return to the classroom.

83311. She did not fully cooperate with or complete the

843program.

84412. On April 15, 2002, a second CFR was conducted with

855the Respondent. This meeting again sought to address the

864Respondent's ability to return to duty and her noncompliance

873with the drug - free workplace policy.

88013. At the second CFR the Respondent again expressed a

890willingness to complete the EAP and to obtain appropriate help

900for her on - going problems. The Respondent was directed to

911comply with the recommendations made by the School District's

920EAP.

92114. The Respondent continued to be apologetic for her

930past behaviors.

93215. On August 13, 2002, a third CFR was held between the

944Respondent and the Office of Professional Standards. The

952agenda for that meeting was similar to the past CFRs . The

964Respondent had not complied with the EAP, had not explained

974the unauthorized excessive absences, and the issue of the

983presumptive positive response for the drug and alcohol

991screening still loomed large.

99516. Again, as in the past, the Respondent apologized for

1005not completing the EAP. Additionally, the number of leave

1014without pay (unauthorized) absences had by that time grown to

102477. The Respondent had also exhausted her sick/personal leave

1033time.

103417. The absences were directly attributable to the

1042Re spondent's failure to complete the EAP. Basically, the

1051Respondent was unable to be cleared to return to the classroom

1062until she completed the EAP. She failed to complete the EAP

1073so the number of unauthorized absences continued to grow.

108218. Eventually the Respondent was dropped from the EAP

1091due to lack of participation. Her case was then closed.

110119. The Petitioner gave the Respondent numerous

1108opportunities to demonstrate she was fit to return to the

1118classroom.

111920. The Respondent did not offer any cr edible

1128explanation for her actions. Regrettably, the Respondent

1135demonstrated by her failure to comply with the EAP that she

1146was unprepared to return to the classroom.

115321. The Respondent did not request medical leave (with

1162appropriate documentation from a physician) if her condition

1170were due to a physical illness.

117622. Moreover, the Respondent did not apply for any leave

1186that might have protected her job. This lack of judgment in

1197itself suggests the Respondent was impaired and therefore

1205unable to perfor m her duties as a classroom teacher.

121523. At the minimum, had Respondent attended the EAP she

1225could have received counseling and assistance that might have

1234protected her future employment with the School District.

1242CONCLUSIONS OF LAW

124524. The Division of Administrative Hearings has

1252jurisdiction over the parties to and the subject matter of

1262these proceedings. Section 120.57, Florida Statutes.

126825. The Petitioner bears the burden of proof in this

1278case to establish by a preponderance of the evidence the

1288allega tions against the Respondent. It has met that burden.

1298As will be further explained, the Petitioner has established

1307just cause for the termination of the Respondent's employment.

131626. "Just cause" is defined as misconduct in office,

1325incompetency, gross insubordination, willful neglect of duty,

1332or conviction of a crime involving moral turpitude. See

1341Section 231.36, Florida Statutes. At issue in this proceeding

1350are misconduct in office and willful neglect of duty or gross

1361insubordination.

136227. The Petiti oner adopted Rule 6Gx - 13 - 4 - 1.05 that

1376provides for a general policy of maintaining a drug - free

1387workplace. The use of illegal or misuse of prescription drugs

1397is prohibited. Additionally, the abuse of alcohol

1404(essentially the allegation herein) is also not tolerated.

1412Employees suspected and found to have violated the drug - free

1423policy must demonstrate that they are fit to perform their

1433classroom duties.

143528. In this case the Respondent refused to submit to

1445drug and alcohol screening. By rule she was presu med to have

1457tested positive. Therefore she was required to demonstrate

1465her fitness to return to the classroom. The Respondent was

1475provided several opportunities to participate in and comply

1483with the EAP. Despite being directed to do so, which was a

1495reasonable directive, the Respondent failed or otherwise

1502refused to complete the requirements of the EAP. Moreover,

1511the Respondent failed to demonstrate her fitness to return to

1521the classroom by any other means.

152729. Even without the presumption of the positi ve test

1537that must be considered when the Respondent failed to take the

1548drug and alcohol screening, it must also be concluded that the

1559Respondent reported for work in an impaired state on

1568December 21, 2001. All of the behaviors observed and noted on

1579that date lead to the unavoidable conclusion that the

1588Respondent had or has a problem such that she is not fit for

1601classroom duty.

160330. Presenting for work in an impaired condition due to

1613drugs or alcohol constitutes misconduct in office.

162031. Next, as the Resp ondent took no precautions to seek

1631authorized leave through the EAP, it must be further concluded

1641that the absences she racked up (a total of over 80)

1652constitute excessive absenteeism. Being absent to this extent

1660also constitutes misconduct in office. The Petitioner has

1668adopted rules to provide its employees with authorized leave.

1677The Respondent did nothing to avail herself of those

1686provisions.

168732. Finally, as the Respondent failed to follow the

1696directives provided to her during the CFRs, it must be

1706con cluded such failure constitutes gross insubordination or

1714willful neglect of duty. It was reasonable for the Petitioner

1724to seek the Respondent's compliance with the EAP and to

1734present for work without undue absenteeism. It goes without

1743saying that the School Board would want to retain a long - term

1756and valued teacher (Respondent began employment in 1983). It

1765is therefore regrettable that the Respondent's situation and

1773poor judgment impaired her ability to comply with the

1782directives. The Respondent has offe red no credible

1790explanation for her behavior. She has expressed remorse

1798during the CFRs but taken no bona fide steps to assure

1809compliance with the Petitioner's directives.

1814RECOMMENDATION

1815Based on the foregoing Findings of Fact and Conclusions

1824of Law, it is RECOMMENDED that the School Board of Miami - Dade

1837County, Florida, enter a Final Order confirming the initial

1846decision to suspend without pay and to terminate the

1855employment of the Respondent based upon just cause as set

1865forth above. It is further recom mended that, should the

1875Respondent complete an accepted program for substance abuse

1883and demonstrate fitness for Duty, that the School Board

1892consider re - employment of the Respondent.

1899DONE AND ENTERED this 30 th day of May , 2003, in

1910Tallahassee, Leon County, Florida.

1914___________________________________

1915J. D. PARRISH

1918Administrative Law Judge

1921Division of Administrative Hearings

1925The DeSoto Building

19281230 Apalachee Parkway

1931Tallahassee, Florida 32399 - 3060

1936(850) 488 - 9675 SUNCOM 278 - 9675

1944Fax Filing (850) 921 - 6847

1950www.doah.state.fl.us

1951Filed with the Clerk of the

1957Division of Administrative Hearings

1961this 30 th day of May, 2003.

1968COPIES FURNISHED :

1971Merrett R. Stierheim

1974Interim Superintendent

1976Miami - Dade County School Board

19821450 Northeast Second Avenue, No. 912

1988Miami, Florida 33132 - 1394

1993Daniel J. Woodring, General Counsel

1998Department of Education

2001325 West Gaines Street, Room 1244

2007Tallahassee, Florida 32399 - 0400

2012Gloria P. Adams

201519511 Northwest 8th Avenue

2019Miami, Florida 33169

2022Melinda L. McNichols, Esquire

2026Miami - Dade Co unty School Board

20331450 Northeast Second Avenue, Suite 400

2039Miami, Florida 33132

2042NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2048All parties have the right to submit written exceptions within

205815 days from the date of this Recommended Order. Any

2068exceptions to this Recommended Order should be filed with the

2078agency that will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/18/2003
Proceedings: Final Order of the School Board of Miami-Dade County, Florida filed.
PDF:
Date: 07/15/2003
Proceedings: Agency Final Order
PDF:
Date: 05/30/2003
Proceedings: Recommended Order
PDF:
Date: 05/30/2003
Proceedings: Recommended Order issued (hearing held February 18, 2003) CASE CLOSED.
PDF:
Date: 05/30/2003
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 05/07/2003
Proceedings: Petitioner School Board`s Proposed Recommended Order (filed via facsimile).
Date: 04/28/2003
Proceedings: Transcript filed.
Date: 02/18/2003
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 02/14/2003
Proceedings: Amended Notice of Hearing issued. (hearing set for February 18, 2003; 9:00 a.m.; Miami, FL, amended as to Location of Hearing).
PDF:
Date: 02/14/2003
Proceedings: Petitioner`s Pre-Hearing Statement (filed via facsimile).
PDF:
Date: 01/08/2003
Proceedings: Notice of Specific Charges (filed by Petitioner via facsimile).
PDF:
Date: 01/08/2003
Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories to the Respondent (filed via facsimile).
PDF:
Date: 12/26/2002
Proceedings: Memo to A. Luchini from M. McNichols requesting subpoenas (filed via facsimile).
PDF:
Date: 12/12/2002
Proceedings: Subpoena Request (filed by Petitioner via facsimile).
PDF:
Date: 12/05/2002
Proceedings: Notice of Hearing issued (hearing set for February 18, 2003; 9:00 a.m.; Miami, FL).
PDF:
Date: 12/02/2002
Proceedings: Petitioner`s Response to Initial Order (filed via facsimile).
PDF:
Date: 11/25/2002
Proceedings: Notice of Suspension and Dismissal (filed via facsimile).
PDF:
Date: 11/25/2002
Proceedings: Request for Hearing (filed via facsimile).
PDF:
Date: 11/25/2002
Proceedings: Agency Referral (filed via facsimile).
PDF:
Date: 11/25/2002
Proceedings: Initial Order issued.

Case Information

Judge:
J. D. PARRISH
Date Filed:
11/25/2002
Date Assignment:
02/14/2003
Last Docket Entry:
07/18/2003
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (1):