11-001078TTS Manatee County School Board vs. Dareki Daniels-Youmans Status: Closed Recommended Order on Monday, August 22, 2011.

Summary: Respondent's excessive absenteeism and gross insubordination provided just cause for Petitioner to terminate her employment as a VPK teacher's aide.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 11 - 1078

)

DAREKI DANIELS - YOUMANS , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on June 9, 2011, by video teleconference at sites in Sarasota

and Tallahassee, Florida, before Administrative Law Judge

Elizabeth W. McArthur of the Division of Administrative

Hearings.

APPEARANCES

For Pet itioner: Scott A. Martin, Esquire

Manatee County School Board

215 Manatee Avenue West, Second Floor

Post Office Box 9069

Bradenton, Florida 34206 - 9069

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to terminate Respondent's employment.

PRELIMINARY STATEMENT

B y letter dated February 17, 2011, the superintendent of

Schools for Manatee County, Tim McGonegal (Superintendent),

notified Dareki Daniels - Youmans (Respondent) that he intended to

recommend her termination from employment as a teacher's aide

for the reaso ns set forth in an Administrative Complaint served

with the letter. The Administrative Complaint, issued by the

Manatee County School Board (School Board or Petitioner),

alleged that Respondent engaged in misconduct and gross

insubordination in violation of several cited statutes and rules

by refusing to comply with her school principal's written

directive to sign in at the front office upon arriving at school

(issued in connection with a 2009 written reprimand for

excessive absenteeism) and by repeatedly refusing to comply with

oral and written directives by the teacher of record in

Respondent's classroom. It was also alleged that Respondent was

guilty of excessive absenteeism in the then - current school year

and the two preceding school years, in violatio n of the School

Board's rules. The Administrative Complaint asserted that these

alleged violations provided just cause to terminate Respondent's

employment.

Respondent timely requested an administrative hearing to

contest the allegations in the Administr ative Complaint. The

case was forwarded to the Division of Administrative Hearings

for assignment of an Administrative Law Judge to conduct the

hearing requested by Respondent.

Prior to the final hearing, the parties entered into a

Joint Prehearing Sti pulation in which they stipulated to a few

facts. The parties' stipulations have been incorporated into

this Recommended Order.

At the final hearing, Petitioner presented the testimony of

Debra Horne, Carla Slagle, Sheryl Zuniga, Leslie Litten, Scott

Boy es, Cheryl Bennett, and Respondent. Petitioner's Exhibits 1

through 7 and 9 through 11 were received into evidence.

Respondent testified on her own behalf. Respondent's Exhibits 1

through 7 were received into evidence.

The one - volume Transcript of the final hearing was filed on

July 1, 2011. Petitioner timely filed its Proposed Recommended

Order . Respondent filed her Proposed Recommended Order one day

late, along with an unopposed motion to accept the late - filed

submittal. The motion was granted, and both parties' Proposed

Recommended Orders have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Respondent has been employed by the School Board since

November 28, 2006. Respondent is a teacher's aide in a

voluntary p re - kindergarten (VPK) class at Samoset Elementary

School.

2. Respondent's job responsibility, as the VPK teacher's

aide, is to assist the VPK teacher of record for the classroom

to which she was assigned. Respondent understood that was her

job -- that she was required to work at the teacher's direction

and that the teacher had the authority to issue directives to

her aide.

3. The school day started at 8:00 a.m., but the

instructional part of the school day did not start until

8:30 a.m. Between 8:00 and 8:30, each morning, the VPK

teacher's aide's job was to set up the classroom, greet the

students, and supervise their breakfast, while the teacher used

the time for planning the classroom activities of the day and

beyond.

4. Ms. Slagle was assigned as the teacher of record for

the VPK classroom to which Respondent was the assigned teacher's

aide, beginning in the fall of 2009. 1/ At first, Ms. Slagle

would discuss with Respondent what she needed Respondent to do

in the classroom, but after a short perio d of time, some of the

tasks Ms. Slagle had assigned to Respondent were not always

getting done. In addition, Ms. Slagle had problems with

Respondent missing whole work days or arriving late.

5. To address the problem with Respondent not always

completi ng all of her assigned tasks, Ms. Slagle made a list of

regular tasks that Respondent was to complete daily and hung the

list up in the classroom to assist Respondent to remember

everything that was supposed to be done daily. Examples of

these tasks inclu ded taking the student chairs down from the

tables in the morning, taking equipment such as bicycles out of

the locked storage shed and then returning the bikes after use

and securing the shed, cleaning up after lunch in the classroom

and taking the trash out, wiping/disinfecting the tables at the

day's end and putting the chairs back up on the tables, and

similar tasks for room set - up in the morning, facilitating

activities during the day, and closing down the room at day's

end.

6. Ms. Slagle also addr essed her concerns about

Respondent's attendance lapses with her. For example, she spoke

to Respondent about her frequent late returns from lunch.

Respondent sought to excuse her tardiness by saying that there

was nothing for her to do. In response, Ms. Slagle drew up a

second list of additional tasks, beyond the daily assignments,

that Respondent could turn to if she had finished all of the

regular tasks and did not have anything else to do.

7. Respondent apparently took offense to these lists and

rea cted to them with some hostility, telling Ms. Slagle that she

did not think they were necessary. Respondent claims that she

did everything she was supposed to do. The more credible

evidence was that Respondent did not regularly complete all of

her assign ed tasks and, generally, had a bad attitude about

being given assignments and being told what to do.

8. Apparently at the core of Respondent's hostility was

the misimpression that she and Ms. Slagle were "co - workers" with

the same job descriptions and sa me qualifications. This was

shown not to be true. Respondent's official job description was

"VPK Teacher's Aide." Ms. Slagle's official job description was

"Child Development Associate ( CDA ) /Teacher's Assistant." Though

these titles may sound similar, the CDA position held by

Ms. Slagle required a certification equivalent as a

qualification to be the teacher of record for VPK classes.

Ms. Slagle met this qualification and was, in fact, the assigned

teacher of record for this classroom. Respondent did not hold

the same qualification; she was not a CDA , nor was she the

teacher of record for the VPK classroom; instead, as she

acknowledged, she was the aide to the teacher of record. The

positions were not equal . Respondent and Ms. Slagle were not

co - work ers, if that description implies equivalent status.

9. When Ms. Slagle first developed the assignment lists

for Respondent, she posted them as reminders. However,

Respondent did not take the hint and regularly failed to

complete all of the required task s. At that point, Ms. Slagle

instructed Respondent to check off the daily tasks, and

Ms. Slagle posted a new copy of the list daily so that

Respondent could check off tasks as she did them. Respondent

refused to comply . S he never checked a single task o ff of any

list.

10. Ms. Slagle started keeping the lists with her own

notes indicating which of the tasks had been left undone. On

several occasions, Respondent would add her own comments to

Ms. Slagle's annotated lists. For example, on one list dated i n

early December 2010, where Ms. Slagle indicated that Respondent

failed to take the student chairs down in the morning,

Respondent added the following note: "But you get to work every

day at 7:30 and can't take down the chairs." Respondent

acknowledged that she thought Ms. Slagle should be doing some of

the tasks she assigned to Respondent, but Respondent admitted

that comments such as this were sarcastic and unprofessional.

11. On several occasions, Respondent ripped the checklist

off of the wall where it was posted and threw it in the trash.

Once again, Respondent acknowledged that she probably should not

have done that, but that she was offended by the list and

believed that Ms. Slagle posted it on the wall where everyone

could see to humiliate Respo ndent. T here were no adults

regularly in the classroom besides Ms. Slagle and Respondent.

The four - year - old VPK students were not able to read.

12. Although Respondent was offended by the checklists,

all other witnesses, including two other teacher's ai des and a

teacher who taught the other VPK class, uniformly testified that

the use of checklists was not unusual and that they had used

similar lists before, at least until all assigned tasks were

done every day. The aides testified that they were not off ended

by the lists, but, rather, appreciated the reminders that the

lists provided. None of the specific tasks on the lists used by

Ms. Slagle w as unreasonable or unexpected assignments for a VPK

teacher's aide. Instead, the consistent, credible testimon y was

that Respondent's assigned tasks were reasonable and

appropriate, that Ms. Slagle's checklists were reasonable and

appropriate tools routinely used by VPK teachers, and that the

posting of such lists was the norm for elementary school where

the class room walls were always filled with all kinds of

information, pictures, lists, and graphics.

13. When Respondent's attendance problems were not solved

early on in the 2009 - 2010 school year by Ms. Slagle 's raising

the problems directly with Respondent , the principal of Samoset

Elementary School, Mr. Boyes, got involved. Mr. Boyes spoke

with Respondent more than once about her attendance in the short

period between the start of that school year on August 19, 2009,

and the beginning of October 2009. Wh en Respondent continued to

be tardy and continued to be out for whole school days,

Mr. Boyes took the next step of issuing a written reprimand to

Respondent on October 7, 2009. At a meeting attended by

Respondent and her union representative, Mr. Boyes re ad the

written reprimand letter to Respondent, which Respondent signed

to acknowledge she received it. In pertinent part, the written

reprimand stated:

The purpose of this letter is to reprimand

you for your actions from August 19, 2009

through October 1, 2009. During this time

you have been late to work at least three

times and have been absent 15 days, one of

which on August 19, 2009, whereby you did

not call the automated absentee system

(Smart Find) or contact anyone at the school

site to report your absence. You abandoned

your position without leave.

These behaviors constitute willful neglect

of duty and misconduct in office . . . [and]

excessive absenteeism . . .

It is expected that there will be no

recurrence of the above behaviors on your

part t hat necessitated this reprimand. In

the event there is a recurrence, you will

subject yourself to further disciplinary

measures, up to and including termination of

your employment.

14. To help ensure there were no recurrences, Mr. Boyes

issued a writt en directive along with the written reprimand,

reiterating Respondent's duty hours and the requirement for

requesting and receiving prior appropriate leave to be excused

from reporting to work each day on time and remaining at work

for the entirety of her work shift. As an additional check on

Respondent's compliance, the written directive stated: "I am

directing you to sign in each day at the front office as you did

this morning."

15. Rather than ensuring compliance to avoid recurrences,

the sign - in dire ctive became another requirement that Respondent

failed to meet. Respondent readily admits that her attendance

did not improve at all after the written reprimand. Instead,

the records show that Respondent's attendance worsened. For the

entire school yea r of 2009 - 2010, Respondent was absent for the

whole school day 20 percent of the time; in 2010 - 2011 through

January 24, 2011 (the period of time documented by the

investigation leading up to the recommended termination),

Respondent was absent for the whole school day 25 percent of the

time.

16. Respondent admits she only occasionally followed

Mr. Boyes' written directive to sign in every day in the front

office. Indeed, the records show only seven times between

October 7, 2009, and January 24, 2011, whe n Respondent signed in

as she was required to do, and she was late two of those seven

times.

17. Respondent's testimony that she simply "forgot" to

sign in on the vast majority of days is not credible. Mr. Boyes

testified that he gave Respondent verbal r eminders on several

occasions that he expected her to be signing in. On one such

occasion, Respondent responded to the reminder by asking

Mr. Boyes whether anyone else was required to sign in every day.

The reasonable inference from Respondent asking thi s question is

that, just as with Ms. Slagle's checklist directive, Respondent

took offense with Mr. Boyes' sign - in directive and knowingly

chose to refuse to comply with her superior's directive.

18. Respondent was also required to put a "slash" mark on

a n attendance roster known as the "slash sheet," which was used

to account for daily attendance for payroll purposes.

Respondent did not forget to comply with this requirement. The

"slash sheet" book was kept right near the front office

sign - in/sign - out b ook, no more than 25 feet away. Respondent

failed to explain how she managed to remember to fill out the

slash sheet so she would get paid, while "forgetting" to sign in

as Mr. Boyes required in the written directive. The more

credible evidence shows tha t Respondent was well aware of the

requirements, but made poor choices in repeatedly refusing to

comply with the reasonable directives of her superiors.

19. Respondent's defiance and poor attendance had a

significant adverse impact on not just the VPK cla ssroom, but

the elementary school as a whole.

20. VPK classes are unique in that they are subject to

specific regulatory requirements and frequent inspections by the

Early Learning Coalition, which monitors VPK compliance. For

example, Ms. Slagle testifi ed that the reason Respondent's

assigned tasks included emptying the trash after lunch is

because the Early Learning Coalition inspectors will cite the

school if the trash is overflowing and that the students make a

big mess at lunch because they eat in th e classroom, so the

trash almost always has to be emptied after lunch. Respondent

was offended by this requirement, saying she was not a custodian

and that another aide had told her that taking out the trash was

the custodian's job. While that may be tru e for end - of - day

cleaning, Ms. Slagle explained that her aide had to take the

trash out after lunch , because they would not make it to the end

of the day without the trash overflowing. The bottom line is

that Respondent should not have met every assigned task with

defiance and refusals, but she did. In this instance, her

refusal put the VPK classroom at risk of being written up if

they were inspected at the wrong time.

21. Ms. Slagle testified that another result of

Respondent's failure to perform the mo rning set - up tasks, such

as taking the chairs down from the tables, was that Ms. Slagle

had to spend her time doing the tasks assigned to Respondent,

instead of using the time for planning. Sometimes Respondent's

failure to perform the morning set - up task s was because she was

there, but not doing what she was supposed to; other times, it

was because she was tardy. Regardless of the reason, the VPK

class suffered because the teacher's aide was not doing her job.

22. Ms. Slagle's mornings were frequently d isrupted

because Respondent would not arrive on time and would not

contact anyone to explain her absence, leaving Ms. Slagle and

the front office guessing as to whether Respondent was just

running late or whether she was going to be out the whole day.

23. Whether for all or part of the day, Respondent's

absence from the VPK classroom during school hours was

particularly disruptive because of the unique VPK regulatory

requirements. VPK classes are required to have one adult

present for every ten students, and Ms. Slagle's class had

18 students. As such, every time Respondent was not present,

Ms. Slagle had to solve the mystery as to whether Respondent was

just running a little (or a lot) late, or whether Respondent

would be out the whole day; if the latter , then Ms. Slagle and

others in the school system had to scramble to line up a

substitute, which often was not possible at the last minute. As

a result, the no - win choice caused by Respondent's failure to

notify anyone was for Ms. Slagle's class to be out of compliance

for part or all of a school day or for the VPK class to pull in

someone else in the elementary school, who may or may not be

used to working with VPK students, just to meet the adult - to -

student ratio requirement. And , of course, when someon e was

pulled in from another position in the elementary school, a hole

was left in the position from which they were taken.

24. One such "pinch hitter" who frequently was called in

to cover the missing adult position in Ms. Slagle's VPK class

when Respond ent was absent was another teacher's aide who worked

in the Educating Students of Other Languages ( ESOL ) program.

The ESOL program is for students whose primary language spoken

at home is not English. These students required the consistent

efforts of som eone working with them very intensively to attempt

to keep the students on par with the instructional programming

for their levels. The ESOL teacher's aide testified with great

credibility that her work with the ESOL students suffered every

time she had t o drop everything to go cover for Respondent, and

this occurred frequently.

25. Respondent's defiance of Ms. Slagle's authority in the

VPK classroom plainly had an adverse impact on the classroom

environment there. Both Respondent and Ms. Slagle attested to

the increasingly tense atmosphere in the classroom, not at all

conducive to warming up these youngsters for early learning

activities. Either Respondent was present, with her strong

feelings of resentment and defiance , or else Respondent was

missing , and there was a hole to be filled by someone

appropriate, someone inappropriate, or no one at all -- either

way, the VPK students were at the losing end of this bargain.

26. Respondent acknowledged that her absences for whole

and part days were many, bu t asserted that they were all excused

and that she did not intentionally refuse to go to work.

Instead, she explained that she had six children, including

triplets born during the 2008 - 2009 school year. During that

school year, Respondent was granted 60 days of leave under the

Family Medical Leave Act (FMLA), followed by an additional 40

days for child care leave. Petitioner excluded these 100 days

of FMLA and child care leave (more than half of the school year)

from consideration in the "excessive absen teeism" charge.

Instead, Petitioner only considered Respondent's absences over

and above the 100 days of leave. Respondent was absent an

additional 31.4 days, or 17 percent of the school year in the

2008 - 2009 school year.

27. As previously noted, Respo ndent's attendance track

record progressively worsened in the 2009 - 2010 and 2010 - 2011

school years. And as made clear in the written reprimand in

October 2009, Respondent's absences were not always excused, as

required. Nonetheless, even if Respondent's absences were

always excused or always were for legitimate reasons, at some

point the focus must shift away from the legitimacy of

Respondent's reasons. Regardless of reasons, at some point the

absences become excessive and intolerable because of the adve rse

impact they have on the school system.

28. Respondent also claimed that other instructional

personnel at Samoset Elementary had similar problems with

attendance, but were not terminated. Respondent failed to prove

that any other person had an attenda nce record as bad as hers or

that any other person had an attendance record that got worse

instead of better after receiving a written reprimand. More to

the point, Respondent did not demonstrate that any other person

was similarly situated with a distinc tive combination of

excessive absenteeism and continuing refusal to comply with the

reasonable directives of superiors. 2/

29. In December 2010, Petitioner's Office of Professional

Standards ("OPS") initiated an investigation into allegations

that Responde nt has been grossly insubordinate and excessively

absent. The resulting report and documentation was presented to

a committee, which unanimously recommended to the Superintendent

that action be initiated to terminate Respondent's employment.

The Superint endent concurred in the recommendation, and the

Administrative Complaint at issue in this case was prepared and

served.

30. The School Board generally adheres to the practice of

progressive discipline, although whether each step in the

progression of disc ipline will occur in a given case will depend

on the nature of the violations and the circumstances of the

case. The possible steps in the progression of disciplinary

actions are verbal reprimand, written reprimand, suspension with

or without pay, and the n termination.

31. At one point during the investigation, Respondent's

written reprimand was overlooked and, therefore, a draft of a

written reprimand was prepared. The October 7, 2009, written

reprimand, with written directive, was then discovered and t aken

into account. As a result, the School Board determined that the

appropriate action to be taken was termination. As Mr. Boyes

explained, suspension was considered inappropriate as a next

step in this particular case, in that one of the charges was

ex cessive absenteeism, and suspension would be tantamount to a

reward by giving Respondent more time off as a consequence of

taking too much time off. Petitioner's decision to skip the

suspension step in the progression of disciplinary action was

reasonable under the circumstances of this case.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010). 3/

33. In this proceeding, Pet itioner seeks to terminate

Respondent's employment. Petitioner bears the burden of proof,

and the standard of proof is by a preponderance of the evidence.

§ 120.57(1)(j); McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d

476, 477 (Fla. 2d DCA 1996); Dileo v . Sch. Bd. of Dade Cnty. ,

569 So. 2d 883 (Fla. 3d DCA 1990).

34. District school boards have the authority to "operate,

control, and supervise all free public schools in their respective

districts and may exercise any power except as expressly pro -

hibited by the State Constitution or general law." § 1001.32(2),

Fla. Stat., implementing Art. IX, § 4(b), Fla. Const.

35. Pursuant to section 1012.27(5), Florida Statutes, the

Superintendent is authorized to recommend to the School Board

that an employee of th e School Board should be suspended or

dismissed from employment. The School Board, in turn, has the

authority to suspend or terminate School Board employees

pursuant to section 1012.22(1)(f).

36. Pursuant to section 1012.40, Respondent is an

"educationa l support employee," who may be terminated by the

School Board pursuant to standards provided in the applicable

collective bargaining agreement.

37. "Just cause" is the undefined standard adopted by the

applicable Paraprofessional Collective Bargaining Ag reement for

termination of School Board paraprofessional employees such as

Respondent. School Board Policy 6.11 adopts the same "just

cause" standard for disciplinary action against School Board

employees, including Respondent.

38. The School Board h as discretion in defining what

constitutes "just cause" for taking disciplinary action against

employees, including suspension or termination. See Dietz v.

Lee Cnty. Sch. Bd. , 647 So. 2d 217, 218 (Fla. 2d DCA (1994)

(Blue, J. concurring); see also § 1012. 23(1) (authorizing

district school boards to adopt rules governing personnel

matters, except as otherwise provided by law or the State

Constitution).

39. The School Board has exercised its discretion by

promulgating School Board Policy 6.11(1) and 6.11(12 )(c), which

provide that just cause for termination from employment

includes, among other things, "misconduct in office, . . . gross

insubordination, . . . violation of the Policies and Procedures

Manual of the School District of Manatee County, violation of

any applicable Florida statute, [or] violation of the Code of

Ethics and the Principles of Professional Conduct of the

Education Profession in Florida."

40. The first charge in the Administrative Complaint

alleges that Respondent violated School Board Policy

6.2(2)(B)(2), which provides as follows:

Any absence from work without leave or

excessive absence with notice may be

considered grounds for termination. All

employees are expected to be in attendance

at work sites at all times. Excused

absences are the only exception to this.

Excessive absences even though excused, have

an adverse impact.

41. The School Board's policy regarding excessive

absenteeism is reflected in other sections of the Policies and

Procedures Manual, with a slightly different emphasis. The

introductory language to Policy 6.2 under the heading

"Procedures" states as follows: "Excessive absenteeism, even

though excused, has an adverse impact on performance and is an

issue to be addressed in performance evaluation affecting

con tinuing employment." Similar language is set forth in Policy

6.11(3)(d)(District Rules of Work, Absence of Employees).

42. Respondent focuses only on the latter policy language

to argue that the School Board was required to raise

Respondent's excessive a bsenteeism in performance evaluations,

but failed to do so. But, Policy 6.2(2)(B)(2), which is the one

Respondent is charged with violating in the Administrative

Complaint, plainly provides that excessive absenteeism may be

grounds for termination. Respo ndent's argument that the School

Board was required to first raise Respondent's absenteeism in a

performance evaluation before applying the discipline authorized

by Policy 6.2(2)(B)(2) is rejected under the circumstances

proven in this case, where Responde nt's excessive absenteeism,

including many whole days of absences from work, plus chronic

tardiness, was the subject of a written reprimand and a written

directive which Respondent chose to ignore even after several

verbal reminders by the principal.

43. Petitioner proved by a preponderance of the evidence

that Respondent's excessive absenteeism had a substantial

adverse impact on the school system. Respondent was given more

than adequate notice of what was expected of her and more than

adequate opportuni ty to conform her conduct to the requirements

of her position. Rather than seeing any improvement in

Respondent's attendance after her written reprimand and written

directive, Respondent's attendance worsened, causing great

disruption to those left scramb ling to cover for Respondent's

absences.

44. Respondent's attempt to excuse her absences because

she had legitimate conflicts, with sick children or other

legitimate reasons to be absent, is not fully supported by the

record, but in any event, would be in adequate to outweigh the

magnitude of her absences and the adverse impacts uniquely

caused by Respondent's position as a VPK teacher's aide.

45. Petitioner prov ed that Respondent violated the School

Board's promulgated policy against excessive absenteei sm and

that under the circumstances of this case, such violation

constitutes just cause to terminate Respondent's employment.

46. The next charge in the Administrative Complaint is

that Respondent was grossly insubordinate, both in refusing to

comply with Mr. Boyes' written directive issued in conjunction

with the October 7, 2009, written reprimand, even after verbal

reminders were given; and in repeatedly refusing to comply with

the oral and written assignments given to her by the VPK teacher

of record in the class to which Respondent was assigned as a

teacher's aide.

47. Gross insubordination is "a constant or continuing

intentional refusal to obey a direct order, reasonable in

nature, and given by and with proper authority." Fla. Admin.

Code R. 6B - 4. 009(4); Dolega v. Sch. Bd. of Miami - Dade Cnty ,

840 So. 2d 445, 446 (Fla. 3d DCA 2003).

48. Petitioner prov ed that Respondent's actions with

respect to Mr. Boyes' written directive constituted gross

insubordination. As found above, the more credible evi dence

established that Respondent knowingly refused to comply with

Mr. Boyes' written directive that she sign in daily, a

requirement that was enlisted as a tool to ensure that

Respondent's attendance improve. For well over one full school

year after Resp ondent received her written reprimand and

directive, Respondent refused to sign in as her superior

directed her to do, in writing. When Mr. Boyes reminded her

that she was supposed to be signing in, Respondent did not

respond with dismay that she had forg otten; instead, she

defiantly questioned the school principal about whether any

other employee was required to sign in as she was. Respondent

was grossly insubordinate.

49. Petitioner also proved that Respondent was grossly

insubordinate to the teacher o f record in the VPK classroom,

whom Respondent was supposed to be aiding and whose directives

and assignments Respondent was supposed to be following. The

credible competent substantial evidence overwhelmingly

established that Respondent was openly defian t in her continual

refusal to accept assignments given to her by Ms. Slagle. There

could not be a more openly defiant display of insubordination

than Respondent's performance in ripping checklists of

assignments off the wall and throwing them in the garba ge.

50. Petitioner prov ed that Ms. Slagle was the authority in

the VPK classroom, entitled to give directives to Respondent,

her aide, and that the directives Ms. Slagle gave to Respondent

were reasonable. Respondent's reactions to those directives

wer e not reasonable; they were, as Respondent admitted,

sarcastic, unprofessional, and uncalled for. Respondent was

repeatedly, continually, and grossly insubordinate.

51. The Administrative Complaint also included a charge

that Respondent had engaged in " misconduct in office." School

Board Policy 6.11 uses, but does not define "misconduct in

office." That phrase is defined for similar purposes in Florida

Administrative Code Rule 6B - 4.009(3) and that rule definition is

instructive. "Misconduct in office" is defined as a violation

of the Code of Ethics of the Education Profession or the

Principles of Professional Conduct for the Education Profession

in Florida (Code of Ethics), which is so serious as to impair

the individual's effectiveness in the school s ystem.

52. Although paragraph 22 of the Administrative Complaint

charges this violation, there is no citation to a specific

provision of the Code of Ethics allegedly violated by

Respondent. Therefore, this charge was not sufficiently pled to

be the ba sis for disciplinary action.

53. Petitioner proved by a preponderance of the competent,

substantial, and more credible evidence that there is ample just

cause for Respondent's termination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and C onclusions

of Law, it is hereby:

RECOMMENDED that Petitioner, Manatee County School Board,

enter a final order terminating the employment of Respondent,

Dareki Daniels - Youmans.

DONE AND ENT ERED this 22nd day of August , 2011 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of August , 2011 .

ENDNOTES

1/ No evidence was presented with regard to Respondent's

position, responsibilities, or work experience in the 2008 - 2009

school year . T he only evidence regarding that year was

Respondent's attendance records. No evidence was presented

regarding Respondent's prior work history with the School Board,

other than that her performance had been satisfactory, and she

had no prior disciplinary r ecord.

2/ Respondent claimed that two other instructional personnel had

similar absentee records, but were not terminated, suggesting

that Respondent was singled out unfairly. Respondent failed to

prove her claim. The evidence showed that one teac her was late

by five or ten minutes twice a week, which is within her

planning time before the instructional part of the school day

begins. No evidence was presented that in addition to these

minor incidents of tardiness, the teacher had substantial

absen ces or that on top of excessive absenteeism, the teacher

had been continually insubordinate to her superiors.

Respondent identified another instructional employee that

Respondent claimed was excessively absent during the 2009 - 2010

and 2010 - 2011 school ye ars, but was not terminated. While

Mr. Boyes testified that he thought this other employee was

absent more than Respondent during those years, he also was

under the impression that Respondent's attendance had improved

after her written reprimand. He was incorrect on both counts.

Respondent's attendance evidence shows that the other employee

singled out for excessive absenteeism was absent some 50 hours

less than Respondent in 2009 - 2010. The 2010 - 2011 school year

cannot easily be compared, because the emp loyee used for

comparison was on medical leave for December. Respondent's

evidence also shows that in mid - November 2010, Mr. Boyes spoke

with this other employee to express concerns about excessive

absences. And after the employee returned from medical l eave,

in early March 2011, she was issued a written reprimand for

excessive absenteeism. Thus, insofar as Respondent's attendance

track record can be compared, it appears that this other

employee was being treated similarly, in that the problem was

being addressed by written reprimand after signs of excessive

absences continued over a period of a year - plus. Moreover, no

evidence was presented that this other employee had continually

refused to follow reasonable directives issued by her superiors,

a substa ntial aggravating factor in Respondent's case that would

justify different treatment, even if the absentee record was

similar.

3/ All statutory references are to the Florida Statutes (2010),

the law in effect when the hearing took place. It is noted tha t

the events giving rise to this disciplinary action occurred at

least, in part, when the 2008 and 2009 statutes were still in

effect, but there were no material changes during these years to

the statutory and rule provisions relied on in the charges

again st Respondent.

COPIES FURNISHED :

Dr. Gerard Robinson

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Tim McGonegal, ED.D., Superintendent

Manatee County School Board

215 Manatee Avenue West

Post Office Box 9069

Bradenton, Florida 34205 - 9069

Scott A. Martin, Esquire

Manatee County School Board

215 Manatee Avenue West, Second Floor

Post Office Box 9069

Bradenton, Florida 34205 - 9069

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

NOTIC E 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 th is case.