10-010589TTS Miami-Dade County School Board vs. Henry D. Stephens Status: Closed Recommended Order on Wednesday, March 16, 2011.

Summary: Recommend termination of employment where evidence demonstrated that Respondent departed work early on numerous occasions without authorization and ignored repeated directives to cease the misconduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD , )

)

Petitioner, )

)

vs. ) Case No. 10 - 10589

)

HENRY STEPHENS , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted b y video teleconference at sites in Tallahassee and

Miami, Florida, on February 2, 2011 , before Administrati ve Law

Judge Edward T. Bauer of the Division o f Administrative

Hearings .

APPEARANCES

For Petitio ner: Arianne B. Suarez, Esquire

M iami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Henry Stephens, pro se

536 Northwest 49th Street

Miami, Florida 33127

STAT EMENT OF THE ISSUE

Whether there is just cause to terminate Respondent's

employment with the Miami - Dade County School Board.

PRELIMINARY STATEMENT

At its regular meeting on November 24, 2010, Petitioner

School Board of Miami - Dade County voted to s uspend Respondent

Henry Stephens without pay and to initiate proceedings to

terminate his employment.

Respondent timely requested a formal administrative hearing

to contest Petitioner's action. On December 13, 2010, the

matter was referred to the Divisio n of Administrative Hearings

("DOAH") for further proceedings. Thereafter, on January 14,

2011, Petitioner filed its Notice of Specific Charges, wherein

it alleged that Respondent left his work site early on numerous

occasions, notwithstanding multiple ad ministrative directives to

discontinue the behavior. Based upon the allegations,

Petitioner charged Respondent with gross insubordination (Count

I), non - performance of job duties (Count II), violation of

responsibilities and duties (Count III), and violat ion of the

School Board's Code of Ethics (Count IV).

At the final hearing, which took place on February 2, 2011,

Petitioner called the following witnesses: Adrianne Leal,

Principal, Coral Reef Senior High School; Alvaro Mejia,

Assistant Principal, Coral Reef Senior High School; Helen Pine,

District Director, Office of Professional Standards; and Pedro

Abreu, Department of Plant Operations. Petitioner's Exhibits 1

through 24 and 26 through 31 were received in evidence.

Respondent testified on his own be half, but called no other

witnesses. Respondent offered no exhibits.

The final hearing transcript was filed on March 4, 2011.

Petitioner timely filed a Proposed Recommended Order that has

been considered in the preparation of his order. Respondent did

n ot file a post - hearing submittal.

Unless otherwise noted, citations to the Florida Statutes

refer to the 2010 version.

FINDINGS OF FACT

A. The Parties

1. Petitioner is the authorized entity charged with the

responsibility to operate, control, and supervi se the public

schools within Miami - Dade County, Florida.

2. At all times material to this proceeding, Respondent

was employed by Petitioner as a school custodian.

3. Respondent's employment is governed by the collective

bargaining agreement between Petitioner and the American

Federation of State, County, and Municipal Employees ("AFSCME").

Pursuant to the AFSCME contract, Respondent may only be

discharged for "just cause."

B. Background

4. From May 2000 through August 2008, Respondent w as

assigned to the Department of Plant Operations.

5. During that period of time, two conferences for the

record were held to discuss Respondent's insubordinate conduct.

The first, which was held on June 30, 2005, addressed various

concerns, which inclu ded Respondent's failure to follow

directives, insubordination, and failure to follow procedures.

During the second conference for the record, conducted on

September 30, 2005, Respondent's superiors again admonished him

for insubordinate acts and his fail ure to follow directives.

6. On August 1, 2008, Respondent was reassigned to Coral

Reef Senior High School ("Coral Reef"). Respondent was

supervised by a head custodian, who in turn reported to Alvaro

Mejia, one of Coral Reef's assistant principals.

7. At the beginning of each school year relevant to this

proceeding, Coral Reef administration provided Respondent with

typed schedules, which clearly provided, in relevant part, that

from 3:00 p.m. to 4:00 p.m., Respondent would "clean all

hallwa ys and stairwells . . . . Clean first floor restrooms of

main building and any other assigned duty deemed necessary by

supervisor ." (Emphasis in original). The schedule further

provided that Respondent's work day concluded at 4:00 p.m.

8. Almost immed iately, administrators noticed that

Respondent would often leave work early without permission. As

a result of this conduct, two conferences for the record were

held with Respondent during September 2008. Respondent's

behavior persisted, and a third conf erence for the record was

conducted in March 2009.

C. Instant Allegations

9. During the 2009 - 2010 academic year, Coral Reef

administration again discovered that Respondent was regularly

leaving work early without authorization. As a result, on

October 14, 2009, Respondent was suspended for 10 days without

pay for gross insubordination and refusal to follow payroll

procedures.

10. Undeterred by the discipline, Respondent continued to

leave campus early upon his return from the suspension. This

wa s confirmed by Mr. Mejia, who reviewed video surveillance

footage of the custodial work area. In particular, Mr. Mejia

learned that Respondent left work 29 minutes early on

October 29, 2009, 93 minutes early on October 30, 26 minutes

early on November 2, 29 minutes early on November 4, and 30

minutes early on November 5. Compounding the problem, the sign -

out log reveals that on each of these five occasions, Respondent

falsely recorded 4:00 p.m. as the time he left work.

11. On November 6, 2009, Ms. Adrianne Leal, the principal

of Coral Reef, provided Respondent with a professional

responsibilities memorandum, wherein she admonished him for

continuing to leave early and for falsifying the payroll record

by recording inaccurate sign - out times. The me morandum fur ther

reminded Respondent that his work day did not end until

4:00 p.m.

12. Although Respondent ended his practice of recording

inaccurate sign - out times, he continued to leave work early,

including the very day he received the professio nal

responsibilities memorandum. Specifically, Mr. Mejia's review

of the video footage demonstrated that Respondent left 31

minutes early on November 6, 2009, 27 minutes early on

November 9, 32 minutes early on November 10, 34 minutes early on

November 12, 32 minutes early on November 13, 30 minutes early

on November 16, and 31 minutes early on November 17 and 18.

13. Respondent's behavior continued over the course of the

next several months, during which he left work early without

authorization on 11 occasions. In particular, Mr. Mejia

confirmed that Respondent left work 24 minutes early on

December 16, 2009, 20 minutes early on January 7, 2010, 31

minutes early on January 8, 26 minutes early on January 20, 30

minutes early on January 21, 92 minutes early on January 22, 12

minutes early on January 25, 34 minutes early on January 26, 29

minutes early on January 27, 26 minutes early on January 28, and

64 minutes early on January 29.

14. Subsequently, on February 3, 2010, Ms. Leal issued

Respondent a memorandum titled, "Accrued Leave Without Pay,"

which notified Respondent that he had been docked one day

without pay based upon his early departures from campus during

December 2009 and January 2010.

15. On February 18, 2010, Ms. Leal held a confere nce for

the record with Respondent, during which she discussed his

history of misbehavior, reminded him of his responsibilities,

and emphasized the fact that his work day did not end until

4:00 p.m.

16. Nevertheless, Respondent persisted with his miscond uct

and failed to work until 4:00 p.m. on approximately 30 occasions

during the months of February, March, and April 2010. On

March 12, April 21, and May 17, 2010, Ms. Leal issued Respondent

"Accrued Leave Without Pay" notices.

17. As the months pass ed, Mr. Mejia continued to document

numerous instances where Respondent departed campus prior to

4:00 p.m. without permission. In particular, from July 27,

2010, through October 21, 2010, Respondent left work at

3:40 p.m. or earlier on no fewer than 28 occasions.

18. On November 2, 2010, its benevolence finally

exhausted, Petitioner summoned Respondent to the School Board's

Office of Professional Standards for a final conference for the

record. Subsequently, Petitioner notified Respondent in writin g

that it intended to suspend him without pay and initiate

dismissal proceedings.

D. Ultimate Findings

19. The greater weight of the evidence establishes that

Respondent is guilty of gross insubordination.

20. The greater weight of the evidence es tablishes that

Respondent is guilty of non - performance of job duties.

21. The greater weight of the evidence establishes that

Respondent is guilty of failing to behave in such a manner that

reflects credit upon himself and the school system.

22. The grea ter weight of the evidence establishes that

Respondent is guilty of violating the School Board's Code of

Ethics.

CONCLUSIONS OF LAW

A. Jurisdiction

23 . The Division of Administrative Hearings has

jurisdiction over the subject matter and pa rties to this case

pursuant to s ections 120.569 and 120.57(1), Florida Statutes.

B. Basis for Discipline

24. As a custodian, Respondent is an "educational support

employee" as defined by section 1012.40(1)(a), Florida Statues.

See Lee Cnty. Sch. Bd. v. Taylo r , Case No. 04 - 2757 (Fla. DOAH

Nov. 12, 2004) (noting that a custodian is an educational

support employee pursuant to section 1012.40(1)(a)).

25. Section 1012.40(2)(b), Florida Statutes, provides that

educational support employees may be terminated onl y "for

reasons stated in the collective bargaining agreement." As

noted above, the AFSCME agreement provides that educational

support employees such as Respondent, who have been employed by

Petitioner for five years or more, may only be discharged for

"ju st cause." See Miami - Dade Cnty. Sch. Bd. v. Morgan , Case No.

03 - 1334 (Fla. DOAH Oct. 24, 2003).

26. Pursuant to Article XI of the AFSCME agreement, the

violations alleged in Counts I thorough IV of the Notice of

Specific Charges, if proven, each consti tutes "just cause" for

terminating Respondent.

C. The Standard and Burden of Proof

27. Petitioner has the burden of proving the material

allegations by a preponderance of the evidence. McNeill v.

Pinellas Cnty. Sch. B d. , 678 So. 2d 476 , 477 (Fla. 2d D CA 1996);

Allen v. Sch. Bd. of Dade C nty. , 571 So. 2d 568, 569 (Fla. 3d

DCA 1990).

28 . The preponderance of the evide nce standard requires

proof by " the greater weight of the evidence" or evidence that

"more likely than not" tends to prove a certain pro position.

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000); see also

Williams v. Eau Claire Pub. Sch. , 397 F.3d 441, 446 (6th Cir.

2005) (holding trial court properly defined the preponderance of

the evidence standard as "such evidence as, when conside red and

compared with that opposed to it, has more convincing force and

produces . . . [a] belief that what is sought to be proved is

more likely true than not true").

D. Count I : Gross Insubordination

29. In Count I of the Notice of Specific Charge s,

Petitioner alleges that Respondent is guilty of insubordination,

contrary to Florida Administrative Code Rule 6B - 4.009(4), which

provides:

Gross insubordination or willful neglect of

duties is defined as a constant or

continuing refusal to obey a direct order,

reasonable in nature, and given by and with

proper authority.

30. As detailed in the findings of fact above, the

evidence demonstrates that Respondent, notwithstanding repeated

verbal and written admonitions (that were both reasonable and

prop er), left the work site early on numerous occasions without

authorization. For whatever reason, Respondent refused to

accept the fact that it was not up to him to set his own work

schedule, and his continued defiance plainly rises to the level

of gross in subordination. 1 See Miami - Dade Cnty. Sch. Bd. v.

Bell , Case No. 05 - 2367 (Fla. DOAH June 5, 2006) (finding

violation of rule 6B - 4.009(4) where custodian, following

warnings from his principal not to leave work early, continued

to do so without permission); see also Lee Cnty. Sch. Bd. v.

Taylor , Case No. 04 - 2757 (Fla. DOAH Nov. 12, 2004)

("Respondent's position as a custodian did not give her the

discretion to leave early when she decided her work was

finished. Her contract called for her to work from 3:00 p.m. to

11:00 p.m."); Sch. Bd. of Dade Cnty. V. Ingber , Case No. 93 - 3963

(Fla. DOAH Jan. 12, 1994) (finding gross insubordination where,

among other acts of misconduct, employee repeatedly failed to

stay at work for the entire day). Accordingly, Responden t is

guilty of Count I.

E. Count II : Non - Performance of Job Duties

31. In Count II of the Notice of Specific Charges,

Petitioner alleges that Respondent is guilty of failing to

perform his job duties, contrary to Article XI, Section 4C of

the col lective bargaining agreement.

32. It is axiomatic that in order for Respondent to

fulfill his responsibilities as a school custodian, he was

required to be physically present on campus during his allotted

work hours. By habitually leaving work early (30 minutes or

more on many occasions) Respondent failed to properly discharge

his duties. See Miami - Dade Cnty. Sch. Bd. v. Bell , Case No. 05 -

2367 (Fla. DOAH June 5, 2006) (finding just cause for dismissal

based upon nonperformance of job responsibilities , where

custodian repeatedly failed to work his entire shift). As such,

Respondent is guilty of Count II.

F. Count III : Responsibilities and Duties

33 . Count I II of the Notice of Sp ecific Charges alleges

that Respondent violated School Board Rule 6 Gx13 - 4A - 1.21, which

pertains to duties and responsibilities of School Board

employees, and provides, in relevant 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 .

34. By falsifying the sign - out log on five occasions and

defying repeated admonitions to adhere to his work schedule,

Respondent failed to conduct himself in a manner that reflected

credit upon himself and the school system, and is therefore

guilty of Count III.

G. Count IV: Code of Ethics

35. In Count IV of the Notice of Specific Charges,

Petitioner contends that Respondent violated School Board Rule

6Gx13 - 4A - 1.213, Code of Ethics, which provides, in pertinent

part:

Each employee agrees and pledges:

1. To abide by this Code of Ethics, making

the well - being of t he students and the

honest performance of professional duties

core guiding principles.

* * *

5. To take responsibility and be

accountable for his or her actions.

* * *

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.

36. The evidence demonstrates that Respondent, instead of

cooperating with his administrators and adhering to the assigned

work schedule, chose to come and go from Coral Reef as he

wished. Such a complete lack of accountability on Respondent's

part rendered him ineffective in his own duties and needlessly

consumed a great deal of his administrators' time and attention.

Thus, Respondent violated the Code of Ethics and is guilty of

Count IV .

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is

RECOMMENDED that the School Board enter a final order

adopting the Findings of Fact and Conclusions of Law contained

in this Recommended Order. It is further RECOMME NDED that the

final order terminate Respondent's em ployment .

DONE AND ENTERED this 16th day of March, 2011, in

Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Div ision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of Mar ch, 2011.

ENDNOTE

1 Respondent apparently believed that he was entitled to be paid

for his 30 minute lunch period, and that Petitioner's refusal to

do so constituted an injustice that permitted him to

unilaterally cut short his work day by that same amount of time.

Respondent is mistaken, as the Fair Labor Standards Act, which

governs non - exempt workers such as custodians, provides that

meals are not "work time" and are not compensable. See 29

C.F.R. § 785.19(a) ("Bo na fide meal periods are not work

time . . . . Ordinarily 30 minutes or more is long enough for a

bona fide meal period.").

COPIES FURNISHED :

Arianne B. Suarez

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

Henry Stephens

536 Northwest 49th Street

Miami, Florida 33127

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132 - 1308

Dr. Eric J. Smith

Commissioner of Education

Department of E ducation

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper , Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahssee, Florida 32399 - 0400

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 must be filed with the

agency that will issue the final order in this ca se.