02-004565
Miami-Dade County School Board vs.
Gloria P. Adams
Status: Closed
Recommended Order on Friday, May 30, 2003.
Recommended Order on Friday, May 30, 2003.
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.
- Date
- Proceedings
- PDF:
- Date: 07/18/2003
- Proceedings: Final Order of the School Board of Miami-Dade County, Florida filed.
- 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: 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).
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
-
Gloria P. Adams
Address of Record -
Melinda L. McNichols, Esquire
Address of Record -
Gloria Adams
Address of Record