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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SC HOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4565

)

GLORIA P. ADAMS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

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

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Melinda L. McNichols, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent: Gloria P. Adams, pro se

19511 Northwest 8th Avenue

Miami, Florida 33169

STATEMENT OF THE ISSUES

Whether the Respondent, Gloria P. Adams, violated School

Board rules regarding a drug - free workplace, and excessive

absenteeism; whether she abandoned her position of employment;

whether Respondent committed gross insubordination or willful

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

termination of Respondent's employment with the School

District.

PRELIMINARY STATEMENT

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

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

District) took action to suspend and initiate dismissal

proceedings against the Respondent, Gloria P. Adams. The

action was based on just cause determined from alleged

violations of School Board rules. More specifically, the

Petitioner claimed that the Respond ent had committed gross

insubordination, willful neglect of duties, and had violated

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

Respondent timely contested the action.

The School Board forwarded the case to the Division of

Administrative Hearings for formal proceedings on November 25,

2002. Thereafter the matter was promptly scheduled for final

hearing.

At the hearing, the School Board presented testimony from

Betty Major, Sharon Jackson, and Jose Garcia. The

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

evidence. The Respondent attended the final hearing but

offered no evidence in support of her case.

The transcript of the proceedings was filed on April 28,

2003. The Petitioner timely filed a Proposed Recommended

Order that has been considered in the preparation of this

order. The Respondent has not filed a Proposed Recommended

Order.

FINDINGS OF FACT

1. At all times material to the allegations of this

case, the Petitioner is the authority charged with the

responsibility of op erating, controlling, and supervising all

public schools within the Miami - Dade County, Florida School

District. As such, its duties also include the personnel

decisions related to teachers employed by the School District.

2. At all times material to the allegations of this

matter, the Petitioner employed the Respondent pursuant to a

professional services contract. The Respondent was assigned

to serve as a teacher at Jan Mann Opportunity School.

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

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

appearance. At that time Respondent spoke with slurred speech

and used verbally aggressive words. Based upon her appearance

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

of alcohol, the Respondent's supervisor determined that she

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

designated when an employee is suspected of drug and/or

alcohol use on school property.

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

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

indicators of being under the influence. Moreover, the

Respondent admitted she had been drinking alcohol the night

before.

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

Respondent exhibited marked irritability and expressed anger.

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

Respondent subsequently refused to submit to a drug and

alcohol screening.

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

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

and informed the Respondent that the refusal to submit to drug

and alcohol screening would be considered a positive test

response. The details of the CFR are memorialized in

Petitioner's Exhibit 2.

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

had excessive absences. Although the Respondent maintained

she was physically ill and unable to attend school,

documentation from a treating physician to support the number

of absences has not been provided.

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

provided with a copy of the School Board rule regarding its

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

responsibilities and duties rule, and the code of ethics of

the Education Profession in Florida. The CFR was concluded

with an indication from Respondent that she would promptly

address the issues raised therein.

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

opportunity to obtain assistance through the Employees'

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

counsels School Board employees with substance or drug abuse

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

workplace policy.

10. The Respondent initially agreed to complete the EAP

requirements in order to return to the classroom.

11. She did not fully cooperate with or complete the

program.

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

the Respondent. This meeting again sought to address the

Respondent's ability to return to duty and her noncompliance

with the drug - free workplace policy.

13. At the second CFR the Respondent again expressed a

willingness to complete the EAP and to obtain appropriate help

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

comply with the recommendations made by the School District's

EAP.

14. The Respondent continued to be apologetic for her

past behaviors.

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

Respondent and the Office of Professional Standards. The

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

Respondent had not complied with the EAP, had not explained

the unauthorized excessive absences, and the issue of the

presumptive positive response for the drug and alcohol

screening still loomed large.

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

not completing the EAP. Additionally, the number of leave

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

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

time.

17. The absences were directly attributable to the

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

Respondent was unable to be cleared to return to the classroom

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

so the number of unauthorized absences continued to grow.

18. Eventually the Respondent was dropped from the EAP

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

19. The Petitioner gave the Respondent numerous

opportunities to demonstrate she was fit to return to the

classroom.

20. The Respondent did not offer any cr edible

explanation for her actions. Regrettably, the Respondent

demonstrated by her failure to comply with the EAP that she

was unprepared to return to the classroom.

21. The Respondent did not request medical leave (with

appropriate documentation from a physician) if her condition

were due to a physical illness.

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

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

itself suggests the Respondent was impaired and therefore

unable to perfor m her duties as a classroom teacher.

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

could have received counseling and assistance that might have

protected her future employment with the School District.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. Section 120.57, Florida Statutes.

25. The Petitioner bears the burden of proof in this

case to establish by a preponderance of the evidence the

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

As will be further explained, the Petitioner has established

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

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

incompetency, gross insubordination, willful neglect of duty,

or conviction of a crime involving moral turpitude. See

Section 231.36, Florida Statutes. At issue in this proceeding

are misconduct in office and willful neglect of duty or gross

insubordination.

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

provides for a general policy of maintaining a drug - free

workplace. The use of illegal or misuse of prescription drugs

is prohibited. Additionally, the abuse of alcohol

(essentially the allegation herein) is also not tolerated.

Employees suspected and found to have violated the drug - free

policy must demonstrate that they are fit to perform their

classroom duties.

28. In this case the Respondent refused to submit to

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

tested positive. Therefore she was required to demonstrate

her fitness to return to the classroom. The Respondent was

provided several opportunities to participate in and comply

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

reasonable directive, the Respondent failed or otherwise

refused to complete the requirements of the EAP. Moreover,

the Respondent failed to demonstrate her fitness to return to

the classroom by any other means.

29. Even without the presumption of the positi ve test

that must be considered when the Respondent failed to take the

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

Respondent reported for work in an impaired state on

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

that date lead to the unavoidable conclusion that the

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

classroom duty.

30. Presenting for work in an impaired condition due to

drugs or alcohol constitutes misconduct in office.

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

authorized leave through the EAP, it must be further concluded

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

constitute excessive absenteeism. Being absent to this extent

also constitutes misconduct in office. The Petitioner has

adopted rules to provide its employees with authorized leave.

The Respondent did nothing to avail herself of those

provisions.

32. Finally, as the Respondent failed to follow the

directives provided to her during the CFRs, it must be

con cluded such failure constitutes gross insubordination or

willful neglect of duty. It was reasonable for the Petitioner

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

present for work without undue absenteeism. It goes without

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

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

is therefore regrettable that the Respondent's situation and

poor judgment impaired her ability to comply with the

directives. The Respondent has offe red no credible

explanation for her behavior. She has expressed remorse

during the CFRs but taken no bona fide steps to assure

compliance with the Petitioner's directives.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

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

County, Florida, enter a Final Order confirming the initial

decision to suspend without pay and to terminate the

employment of the Respondent based upon just cause as set

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

Respondent complete an accepted program for substance abuse

and demonstrate fitness for Duty, that the School Board

consider re - employment of the Respondent.

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

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30 th day of May, 2003.

COPIES FURNISHED :

Merrett R. Stierheim

Interim Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Gloria P. Adams

19511 Northwest 8th Avenue

Miami, Florida 33169

Melinda L. McNichols, Esquire

Miami - Dade Co unty School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

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.