11-004922TTS Miami-Dade County School Board vs. Molina Mcintyre Status: Closed Recommended Order on Thursday, January 12, 2012.

Summary: School security monitor is subject to discipline due to excessive number of unexcused absences.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 11-4922TTS

)

MOLINA MCINTYRE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference at sites in Tallahassee and

Miami, Florida, on November 21, 2011, before Administrative Law

Judge Edward T. Bauer of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Teddra J. Gadson, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark S. Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT 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 September 7, 2011, Petitioner

School Board of Miami-Dade County voted to suspend Respondent

Molina McIntyre without pay and to initiate proceedings to

terminate her employment.

Respondent timely requested a formal administrative hearing

to contest Petitioner's action. On September 22, 2011, the

matter was referred to the Division of Administrative Hearings

("DOAH") for further proceedings. Thereafter, on October 10,

2011, Petitioner filed its Notice of Specific Charges, wherein

it alleged that Respondent failed to report to work on numerous

occasions, notwithstanding several administrative directives to

discontinue the behavior. Based upon the allegations,

Petitioner charged Respondent with gross insubordination (Count

I), violation of responsibilities and duties (Count II), and

violation of the School Board's Code of Ethics (Count III).

As noted above, the final hearing was held on November 21,

2011, during which Petitioner called the following witnesses:

Sabrina Montilla, Melissa Mesa, Portia Burch-Oliver, and Joyce

Castro. Petitioner's Exhibits 1 through 26 were admitted into

evidence. Respondent testified on her own behalf, but called no

other witnesses. Respondent offered no exhibits.

At the conclusion of the final hearing, the undersigned

granted Petitioner's unopposed request for an extended deadline

of January 5, 2012, for the submission of proposed recommended

orders.

The final hearing Transcript was filed on December 2, 2011.

On January 5, 2012, both parties submitted proposed recommended

orders, which have been considered in the preparation of this

Recommended Order.

Unless otherwise noted, citations to the Florida Statutes

refer to the 2011 version.

FINDINGS OF FACT

A. The Parties

1. Petitioner is the authorized entity charged with the

responsibility to operate, control, and supervise the public

schools within Miami-Dade County, Florida.

2. At all times material to this proceeding, Respondent

was employed by Petitioner as a school security monitor at

Crestview Elementary School in the Miami-Dade County School

District. 1 /

3. Respondent's employment is governed by the collective

bargaining agreement between Petitioner and United Teachers of

Dade ("UTD"). Pursuant to Article XXI, Section 3.D of the UTD

contract, Respondent may be discharged only for "just cause,"

which includes, but is not limited to, "misconduct in office,

incompetency, gross insubordination, willful neglect of duty,

immorality, and/or conviction of a crime involving moral

turpitude."

B. 2009-2010 School Year

4. During the 2009-2010 academic year, Respondent was

assigned to Crestview Elementary School ("Crestview") as its

school security monitor.

5. At the beginning of the year, Melissa Mesa, Crestview's

principal at that time, provided Respondent with a schedule that

detailed her responsibilities and duties as a monitor. In

particular, Ms. Mesa advised Respondent that she was required to

report to work at 7:30 a.m. and ensure that students unloaded

from the buses safely. Respondent was further informed that she

was required, among other tasks, to watch the students in the

cafeteria during breakfast and lunch, direct visitors to the

front office, patrol the hallways, and ensure that Crestview's

gates were locked. Finally, Respondent was clearly instructed

that her workday did not end until 3:30 p.m.

6. Almost immediately, Respondent began to exhibit a

pattern of excessive absenteeism. Specifically, during her

first month of work, Respondent was absent three times. Over

the next two months (October and November), Respondent was

absent without authorization on eight occasions.

7. In response to these repeated absences, Ms. Mesa

provided an "Absence from Worksite Directive" to Respondent on

December 3, 2009. In the directive, Ms. Mesa informed

Respondent, in relevant part, that "[a]ttendance and punctuality

are essential functions of [the] job . . . . [and that

Respondent's] absence from duties adversely impacts the

educational / work environment, particularly in effective

operation of [the] worksite." The directive further provided

that failure to be "in regular attendance and on time" would be

considered insubordination and a violation of professional

responsibilities.

8. Notwithstanding the December 3, 2009, directive,

December 17, 2009; January 11, 12, and 19, 2010; and

February 11, 12, and 16, 2010.

9. On February 19, 2010, a conference for the record was

held with Respondent to discuss her repeated, unexcused

absences. Three days later, Respondent was provided with a

summary of the conference for the record, as well as a written

reprimand from Ms. Mesa.

10. Despite the February 19, 2010, meeting and the

issuance of a reprimand, Respondent missed an additional three

days of work, without authorization, over the next three months.

11. In all, Respondent accumulated in excess of 30

absences (18 of which were unexcused) during the 2009-2010

school year, which adversely affected Crestview's operations.

In particular, Ms. Burch-Oliver, an assistant principal at

Crestview, was often required to assume Respondent's duties on

the days Respondent failed to report for work.

C. 2010-2011 School Year

12. On August 20, 2010, Sabrina Montilla, Crestview's new

principal, met with Respondent and explained her schedule and

duties——that were identical to Respondent's responsibilities

during the previous year——as a security monitor for 2010-2011.

13. Notwithstanding the August meeting, Respondent was

absent a total of nine times (three of which were unauthorized)

between September 8, 2010, and December 8, 2010. During that

same span, Respondent left early three times and was tardy on 12

occasions.

14. As a result, a conference for the record was held on

December 14, 2010, to discuss Respondent's attendance and her

noncompliance with worksite directives. Ms. Montilla issued a

written reprimand to Respondent on the following day.

15. Nevertheless, between December 14, 2010, and April 11,

2011, Respondent was tardy 12 more times, often by substantial

amounts of time (on three occasions, Respondent was at least 90

minutes late). In addition, Respondent missed two and one-half

days of work without authorization: a half day on March 25 and

full days on January 31 and April 6.

16. A conference for the record was scheduled for

April 22, 2011, to discuss, once again, Respondent's attendance

issues. Respondent failed to appear, however, and was issued a

reprimand shortly thereafter.

17. Regrettably, Respondent's noncompliance with her work

schedule continued. Specifically, Respondent was tardy on

May 2, 9, 12, and 18, 2011, left work early on May 11, 2011, and

was absent without authorization on May 3, 12, and 19, 2011

(absent a full day on May 3, and half days on the other dates).

18. Subsequently, on May 24, 2011, a conference for the

record was held with Respondent at Petitioner's Office of

Professional Standards. During the conference, Respondent was

provided with, but declined, an opportunity to respond to the

allegations of gross insubordination, noncompliance with

professional responsibilities, and violations several School

Board Rules.

19. On August 23, 2011, Respondent was informed that the

Superintendent of Schools would make a recommendation at the

September 7, 2011, School Board meeting that she be dismissed

from her employment as a security monitor.

D. Respondent's Final Hearing Testimony

20. During the final hearing in this cause, Respondent

attributed her failure to adhere to Crestview's schedule during

the 2009-2010 school year to the fact that she was pregnant with

suffered from morning sickness.

21. Respondent further testified that as a single parent

with two other children (ages five and eight), she was

responsible for dropping her middle child off at Charles Drew

same time that she was scheduled to report for work. While

Respondent indicates that, "in the beginning," she was paying

"someone" to take her child to work, the person she hired would

often leave her in the lurch. However, Respondent failed to

explain why she was unwilling or unable to find a more reliable

individual to take her child to school.

22. With respect to the 2010-2011 school year, Respondent

testified that her attendance problems continued due to her

need to transport her baby to daycare. Although Respondent

concedes that School District provided her with information

about Family Medical Leave Act, Respondent admits that she made

no effort to secure medical leave to be with her son.

23. Finally, Petitioner testified that her childcare

issues have been solved by her use of a daycare facility near

Crestview and the transfer of her daughter to Crestview from

Charles Drew Elementary. As a result, Petitioner believes that

should her employment be reinstated, she would now be able to

comply with the attendance requirements of her position.

24. While the undersigned credits the portions of

Respondent's testimony discussed above, which no doubt reveal

that she was dealing with challenging issues as a single parent,

to reconcile the tension between her family responsibilities and

the demands of her employment. Although Respondent made a

decision that many parents would in her situation (to prioritize

family over her job duties), the fact remains that she made a

deliberate, knowing choice to be absent and tardy on numerous

occasions during two different school years.

E. Ultimate Findings

25. The greater weight of the evidence establishes that

Respondent is guilty of gross insubordination.

26. The greater weight of the evidence establishes that

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

reflects credit upon herself and the school system.

27. The greater weight of the evidence establishes that

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

Ethics.

CONCLUSIONS OF LAW

A. Jurisdiction

28. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this case

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

B. Basis for Discipline

29. As a school security monitor, Respondent is a non-

probationary educational support employee as defined by section

1012.40(1)(a), Florida Statutes. See Miami-Dade Cnty. Sch. Bd.

v. Rich , Case No. 09-1065, 2009 Fla. Div. Adm. Hear. LEXIS 785

(Fla. DOAH Oct. 19, 2009)(noting that a school security monitor

is an educational support employee pursuant to section 1012.40).

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

educational support employees may be terminated only "for

reasons stated in the collective bargaining agreement." As

noted previously, Article XXI, Section 3.D of the UTD agreement

provides that educational support personnel may be terminated

only for "just cause," which is defined by that provision of the

contract as follows:

Just cause includes, but is not limited to,

misconduct in office, incompetency, gross

insubordination, willful neglect of duty,

immorality, and/or conviction of a crime

involving moral turpitude. Such charges are

defined, as applicable, in State Board

[Florida Administrative Code] Rule 6B-4.009.

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C. The Standard and Burden of Proof

31. Petitioner has the burden of proving the material

allegations by a preponderance of the evidence. McNeill v.

Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996);

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

DCA 1990).

32. The preponderance of the evidence standard requires

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

"more likely than not" tends to prove a certain proposition.

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 considered 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

33. In Count I of the Notice of Specific Charges,

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.

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

evidence demonstrates that Respondent, notwithstanding repeated

verbal and written admonitions (that were both reasonable and

proper), failed to appear for work on multiple occasions without

permission. Further, the evidence demonstrates that Respondent,

on numerous instances and without prior approval, did not arrive

at Crestview on time. Notwithstanding Respondent's family

issues, it was not up to her to set her own schedule, and her

continued defiance rises to the level of gross insubordination.

See Miami-Dade Cnty. Sch. Bd. v. Stephens , Case No. 10-10589,

2011 Fla. Div. Adm. Hear. LEXIS 28 (Fla. DOAH Mar. 16,

2011)(finding gross insubordination where school district

employee repeatedly failed to adhere to his work schedule);

Miami-Dade Cnty. Sch. Bd. v. Bell , Case No. 05-2367, 2006 Fla.

Div. Adm. Hear. LEXIS 238 (Fla. DOAH June 5, 2006) (finding

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

from his principal not to leave work early, continued to do so

without permission); Sch. Bd. of Dade Cnty. v. Ingber , Case No.

93-3963, 1994 Fla. Div. Adm. Hear. LEXIS 5333 (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); Sch. Bd. of Dade Cnty. v. Wiener , Case No. 93-

1345, 1993 Fla. Div. Adm. Hear. LEXIS 5633 (Fla. DOAH Aug. 24,

1993)(finding teacher guilty of gross insubordination based upon

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repeated, unauthorized absences). Accordingly, Respondent is

guilty of Count I.

E. Count II: Responsibilities and Duties

35. Count II of the Notice of Specific Charges alleges

that Respondent violated School Board Rule 6Gx13-4A-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 .

(emphasis added).

36. For a violation of Rule 6Gx13-4A-1.21 to provide just

cause to terminate Respondent's employment, it is insufficient

for Petitioner to prove that her behavior——multiple unexcused

absences and tardy arrivals——failed to reflect credit upon

herself and the school system. Rather, Petitioner must also

demonstrate that the behavior impaired Respondent's

effectiveness as an employee. Miami-Dade Cnty. Sch. Bd. v.

Singleton , Case No. 07-559, 2006 Fla. Div. Adm. Hear. LEXIS 614

(Fla. DOAH June 21, 2007)("The undersigned has repeatedly held,

and concludes again here, that violations of school board rules,

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to warrant termination of employment, must rise to the level of

misconduct in office"), adopted in toto Aug. 10, 2007; Miami-

Dade Cnty. Sch. Bd. v. Brenes , Case No. 06-1758, 2007 Fla. Div.

Adm. Hear. LEXIS 122 (Fla. DOAH Feb. 27, 2007)("[T]o justify

termination, a violation of School Board Rule 6Gx13-4A-1.21 must

be 'so serious as to impair the individual's effectiveness in

the school system'"), adopted in toto Apr. 25, 2007; Miami-Dade

Cnty. Sch. Bd. v. Depalo , Case No. 03-3242, 2004 Fla. Div. Adm.

Hear. LEXIS 1684 (Fla. DOAH May 20, 2004)(same as Singleton and

Brenes ), adopted in toto July 15, 2004; Miami-Dade Cnty. Sch.

Bd. v. Wallace , Case No. 00-4392, 2001 WL 335989 (Fla. DOAH Apr.

4, 2001), adopted in toto May 17, 2001.

37. Based upon the findings of fact herein, both elements

have been satisfied. First, Respondent clearly failed to

reflect credit upon herself and the school system through her

repeated (and unauthorized) absences and late arrivals. See

Sch. Bd. of Miami-Dade Cnty. v. Li , Case No. 07-3792, 2008 Fla.

Div. Am. Hear. LEXIS 18 (Fla. DOAH Jan. 15, 2008)(finding that

excessive absenteeism constituted a violation of Rule 6Gx13-4A-

1.21); see also Miami-Dade Cnty. Sch. Bd. v. Stephens , Case No.

10-10589, 2011 Fla. Div. Adm. Hear. LEXIS 28 (Fla. DOAH Mar. 16,

2011). Further, Respondent's behavior made it impossible for

her to discharge her assigned duties (which Crestview's

assistant principal often assumed by necessity), and as such,

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her effectiveness as an employee was impaired. For these

reasons, Respondent is guilty of Count II.

F. Count III: Code of Ethics

38. Finally, in Count III 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 the students and the

honest performance of professional duties

core guiding principles.

* * *

5. To take responsibility and be

accountable for his or her actions.

* * *

8. To be efficient and effective in the

delivery of job duties.

39. Respondent failed to take responsibility for her

actions through her numerous, unexcused absences and tardy

arrivals at Crestview. Such behavior, which impaired her

effectiveness as an employee, constitutes a violation of the

Code of Ethics. See

Sch. Bd. of Miami-Dade Cnty. v. Li , Case

No. 07-3792, 2008 Fla. Div. Adm. Hear. LEXIS 18 (Fla. DOAH Jan.

15, 2008)(finding that employee violated the Code of Ethics

through excessive absenteeism). Thus, Respondent is guilty of

Count III, as alleged in the Notice of Specific Charges

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G. Appropriate Discipline

40. As Petitioner correctly alleges, just case exists to

terminate Respondent's employment based upon the violations

found above.

41. In the undersigned's judgment, however, it would not

be inappropriate for the school board to consider a sanction

short of Respondent's termination (e.g., probation or a

suspension) in light of her family circumstances——that have now

been alleviated——during the 2009-2010 and the 2010-2011 school

years.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is

RECOMMENDED that the School Board enter a final order

finding Respondent guilty of Counts I, II, and III of the Notice

of Specific Charges. It is further recommended that the final

order terminate Respondent's employment, or, in the alternative,

impose a penalty other than Respondent's dismissal.

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DONE AND ENTERED this 12th day of January, 2012, in

Tallahassee, Leon County, Florida.

EDWARD T. BAUER

Administrative Law Judge Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 2012.

ENDNOTE

1/ Petitioner hired Respondent as a part-time food service

worker in September 2006. Several months later, Respondent was

reassigned to a school security monitor position at Miami Edison

Senior High School, where she remained until her transfer to

Crestview Elementary School in September 2009.

COPIES FURNISHED :

Teddra J. Gadson, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

1 7

Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132-1308

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, 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 case.

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