12-003603TTS Miami-Dade County School Board vs. Tamara Snow Status: Closed Recommended Order on Monday, March 31, 2014.

Summary: Petitioner proved by a preponderance of the evidence that Respondent's conduct constituted gross insubordination and misconduct in office. Recommend upholding suspension without back pay and reinstating employment at end of suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case Nos. 12 - 3603TTS

13 - 1177TTS

TAMARA SNOW,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice , a hearing was conducted in the s e case s

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

(2013), before Cathy M. Sellers, an Administrative Law Judge of

the Division of Administrative Hearings ( " DOAH " ), on August 21,

2013, and on Septe mber 4, 2013, by video teleconference at sites

in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Heather L. Ward, Esquire

Miami - Dade County Public Schools

1450 Northeast 2nd Avenue

Miami, Florida 33132

For Respondent: John A. James, Esquire

Holman Law Group

Suite 303

7880 West Oakland Park Boulevard

Sunrise, Florida 33351

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend

Respondent without pay and terminate her emp loyment as a teacher.

PRELIMINARY STATEMENT

On or about October 11, 2012, Petitioner suspended

Respondent from her employment as a teacher, without pay, for 30

days, commencing on October 11, 2012, and ending on November 26,

2012. On October 22, 2012, R espondent requested an

administrative hearing to contest her suspension. On November 5,

2012, the matter was referred to DOAH for conduct of a hearing

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

This matter was assigned case number 12 - 3 603TTS.

The final hearing initially was scheduled for January 20,

2013, but was rescheduled for February 21, 2013, pursuant to the

parties ' joint request. Pursuant to Petitioner ' s motion, the

hearing subsequently was rescheduled for May 15, 2013.

On March 13, 2013, Petitioner took action to suspend

Respondent without pay and to terminate her employment as a

teacher. This matter was referred to DOAH on April 1, 2013, and

was assigned case number 13 - 1177TTS.

On April 15, 2013, case numbers 12 - 3603TT S and 13 - 1177TTS

were consolidated. Pursuant to Order, on April 23, 2013,

Petitioner filed an Amended Notice of Specific Charges in these

consolidated proceedings.

On May 7, 2013, Respondent moved to continue the final

hearing. The motion was granted a nd the hearing was rescheduled

for August 21, 2013. The final hearing was held on August 21,

2013, but was not completed that day, so a second day of hearing

was conducted on September 4, 2013. The final hearing was

concluded on September 4, 2013.

Petitioner presented the testimony of Rachelle Surrancy,

Claire Warren, and Anne - Marie DuBoulay. Petitioner ' s

Exhibits 1 through 6, 8 through 18, 22, 23, and 25 were admitted

into evidence without objection. Respondent testified on her own

behalf. Resp ondent ' s Exhibits A, B, C, D, E, F, and G were

admitted without objection and Exhibits J, K, and K - 1 were

admitted over objection. Respondent ' s Exhibit E - 1 was proffered

but not admitted into evidence.

The three - volume Transcript was filed on January 21, 2014,

and the parties were given ten days, until January 31, 2014, in

which to file their proposed recommended orders. Pursuant to

Petitioner ' s unopposed Motion for Extension of Time to File

Proposed Recommended Orders filed on January 29, 2014, the

parties were given until February 14, 2014, to file their

proposed recommended orders. The parties timely filed the ir

Proposed Recommended Orders, which were duly considered in

preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Peti tioner is a duly constituted school board charged

with operating, controlling, and supervising all free public

schools within the School District of Miami - Dade County, Florida,

pursuant to Florida Constitution Article IX, section 4(b), and

section 1012.23, Florida Statutes.

2. At all times relevant to these proceedings, Respondent

was employed as a teacher in the Miami - Dade County Public Schools

District pursuant to a professional services contract. In the

2011 - 2012 school year, Respondent was employed as a science

teacher at Homestead Middle School. In the 2012 - 2013 school

year , until she was suspended pending the outcome of this

proceeding, Respondent was employed as a math teacher at the

Alternative Outreach Program, 5000 Role Models location. 1 /

3. At all times relevant to these proceedings, Respondent ' s

employment with Petitioner was governed by Florida law,

Petitioner ' s policies, and the collective bargaining agreement

between Miami - Dade County Public Schools and the United Teachers

of Dade ( " UTD Contract " ).

II. Events Giving Rise to these Proceedings

The 2011 - 2012 School Year

4. Respondent began teaching eighth grade science at

Homestead Middle School ( " HMS " ) in August 2011. The 2011 - 2012

school year for students began on August 22, 2011.

5. The workday hours for teachers at HMS for the 2011 - 2012

school year were from 7:25 a.m. to 2:45 p.m., Monday through

Friday. The persuasive evidence establishes that Respondent was

informed of this schedule when she was interviewed for her

teaching position, and again so informed during the first faculty

meeting of the school year.

6. Pursuant to the UTD contract, the teacher work hours per

day in the Miami - Dade Public Schools consist of seven hours and

20 minutes, including a one - hour planning p eriod. The UTD

C ontract provides that teachers may, with the approval of the

work - site administrator ( i.e., the principal ) modify their

workday schedule, such as adjusting the beginning time of the

teacher ' s workday, provided that such modification does n ot

interfere with the overall number of hours worked. This

provision affords a principal the authority and discretion to

modify a teacher ' s workday schedule.

7. The student school day hours for HMS began at 7:35 a.m.,

when the first bell rang and stud ents began entering their

classrooms, and ended at 2:20 p.m. Students were to be in their

classrooms by 7:40 a.m. for a homeroom period, immediately

followed by the first instructional period c onsisting of a

literacy block. The student school day schedul e is set by the

Miami - Dade County School Board and the school principal is not

authorized to change it.

8. Pursuant to HMS ' s established procedure, if a teacher

was going to be absent, he or she must call the absence hotline

at least 30 minutes prior to the start of the teacher workday.

9. Shortly after the beginning of the 2011 - 2012 school

year, Respondent began being tardy to work.

10. HMS Principal Rachelle Surrancy or one of the HMS

assistant principals would note Respondent ' s arrival time , either

by being in the front of the school when she arrived 2 / or by

having to open the door to her c lassroom to let her homeroom

class students in if she arrived after the late bell had rung.

1 1 . Surrancy verbally reminded Respondent of the school ' s

st arting time, then held an informal meeting with her on or about

September 7, 2011, to remind her of the same.

1 2 . Respondent ' s young son suffers from a range of

significant health conditions, including asthma, gastrointestinal

reflux, apnea, pneumonia, l actose intolerance, allergic rhinitis,

and eczema. He requires extensive care for these conditions, and

Respondent was required to administer breathing treatment s and

other care on a daily basis. During flare - ups of her son ' s

conditions, Respondent neede d to take medical leave to provide

that care.

1 3 . On or about September 20, 2011, Respondent submitted to

Surrancy an Intermittent Leave Request Medical Certification form

under the Family and Medical Leave Act ( " FMLA " ) (hereafter " FMLA

Form " ) 3 / request ing approval for Respondent to periodically take

leave due to the intermittent illness of her young son. The FM L A

form was completed and signed by Respondent ' s son ' s physician.

Based on the child ' s medical history, the physician estimated

that Respondent would need to take FMLA leave every two to three

months, for a period lasting two to three days.

14. Notwithstanding Surrancy ' s admonitions, Respondent

continued to be tardy to work. During the first 25 days of the

school year, Respondent was tardy 16 of those days. Most of the

tardies entailed an arrival time of between two and five minutes

late, but some entailed arrival times as much as 25 to 35 minutes

la te. When Respondent arrived after 7:40 a.m. (15 minutes late) ,

her colleagues in the science d epartment were placed in the

position of having to cover her class until she arrived.

1 5 . As a result of Respondent ' s continued tardiness, on

September 28, 2011, Surrancy issued a Punctuality to Work

Directive ( " Directive " ) to Respondent regarding her punctuality

and attendance. 4 / The Directive reminded Respondent that

punctuality and attendance were essential components of her

teaching position, and that as a faculty member, she served as a

role model to other employees and student. Respondent was

ap prised that she was to arrive at work on time and sign in daily

by 7:25 a.m. If she was going to be tardy, she was to

communicate that to an assistant principal or to Surrancy.

Surrancy explained that compliance with these directives was

necessary to pre vent adverse impact to the students and their

academic progress, to ensure continuity of the educational

program, and to maintain effective worksite operations. The memo

advised Respondent that she could obtain assistance to facilitate

her punctuality. R espondent was notified that noncompliance with

the directives would be considered a violation of professional

responsibilities and insubordination.

16 . Respondent told Surrancy that the reason sh e was tardy

was that she had to take her son to his daycare center . The

daycare center did not open until 7:00 a.m., making it difficult

for her to arrive at HMS by 7:25 a.m. due to the commute in

morning traffic.

17 . On October 5, 2011, Surrancy evaluated Respondent ' s

instructional performance for the 2011 - 201 2 school year pursuant

to the Instructional Performance Evaluation and Growth System

( " IPEGS " ), the system used in the Miami - Dade County Public School

District to evaluate instructional personnel. Surrancy rated

Respondent as " effective " for each IPEGS st andard other than

Performance Standard ( " PS " ) 7, " Professionalism. " 5 / For that

standard, she rated Respondent ' s performance as " unsatisfactory "

on the basis that due to her tardies, Respondent violated the

School Board ' s Code of Ethics and Standards of Et hical Conduct

policies. 6 /

18 . After the September 28 meeting, Respondent continued to

be tardy, so on October 10, 2011 , Surrancy again met with her .

Respondent explained that each day , her son required a breathing

treatment regimen that she had to ad minister and that she had to

take her son to daycare. Respondent told Surrancy that she

planned to enlist the assistance of a friend to take her son to

daycare so that may assist her to arrive on time. 7 / Surrancy

offered to adjust Respondent ' s workday sc hedule to allow her to

arrive five minutes later to accommodate her travel time from her

son ' s daycare to HMS, contingent on Respondent arriving at work

by 7:30 a.m.

19 . However, Respondent continued to be tardy, at times

arriving later than 7:30 a.m. Su rra ncy held a follow - up meeting

with Respondent on October 25, 2011, at which she notified

Respondent that the adjusted workday schedule no longer was in

effect and that she was again required to arrive at 7:25 a.m. 8 /

20 . In the meantime, Respondent sought to transfer to a

school having a workday schedule with which she could more easily

comply, given her son ' s daycare start time and her travel time.

She was offered, but declined, a position at Redland Middle

School, which entailed a teaching assign ment that was out of her

field of certif ication. Respondent declined the position because

it did not meet the condition of her loan forgiveness program

that the assignment be in a critical subject area ÏÏ such as

science and math ÏÏ and because she did not be lieve she would be as

proficient a teacher in teaching out of her subject area.

21 . Following the October 25 meeting, Respondent continued

to be tardy. Several of these tardies necessitated coverage for

her homeroom class.

22 . On December 14, 2011, S urrancy held a Conference - for -

the - Record ( " CFR " ) with Respondent to address her continued

tardiness . By that time, Respondent had been tardy 45 days since

the beginning of the school year, and several of these tardies

necessitated coverage of her homeroom class by her colleagues.

Surrancy informed Respondent that her tardies had adversely

affected the educational program and services provided to

students. Respondent was again directed to be punctual and in

regular attendance, to communicate any intent t o be tardy before

7:00 a.m. by calling the assistant principals or her, and to

provide physician documentation and/or recertification of her

FMLA form as needed if she was going to use FMLA leave to cover

her tardies. Respondent was provided copies of Pet itioner ' s

policies on Standards of Ethical Conduct, Code of Ethics, and

Leaves of Absence; Department of Education rules 6B - 1.001 and 6B -

1.006; another copy of the FMLA for recertification by her

physician; and other documents to inform and assist Responde nt in

addressing her tardiness problem. Respondent was informed that

noncompliance with the directives would constitute

insubordination and compel district disciplinary action.

23 . Re spondent continued to be tardy. A gain, several of

these tardies necess itated coverage of her homeroom class.

24 . On February 13, 2012, Surrancy conducted another CFR

with Respondent. As of that date, Respondent had been tardy 69

days since the beginning of the 2011 - 2012 school year. Surrancy

issued Respondent the same di rectives previously given and again

furnished Respondent copies of pertinent School Board policies,

applicable Department of Education rules, and other informational

documents. Surrancy informed Respondent that failure to comply

with these directives woul d constitute gross insubordination and

necessitate further disciplinary action.

25 . Respondent explained that her tardiness was due to a

variety of factors, including having to perform breathing and

other medical treatments on her son and taking him to daycare.

She expressed concern at having to call in by 7:00 a.m. if she

was going to be tardy because, for unforeseen reasons such as her

son ' s daycare being late in opening, she may not know whether she

was going to be tardy u ntil after 7:00 a.m. Surra ncy informed

Respondent that under any circumstances, calling in did not

excuse tardiness. Respondent requested that Surrancy assign her

homeroom to another teacher and allow her to report at 7:45 a.m.,

when her science classes commenced. Surrancy refuse d.

26 . As a result of Respondent ' s continued tardies, Surrancy

determined that her conduct constituted insubordination and

noncompliance with applicable School Board policies. Surrancy

issued a written R eprimand to Respondent on March 5 , 2012. The

Rep rimand directed Respondent to adhere to school board policies,

be punctual , and call Surrancy or an assistant principal before

7:00 a.m. if she were going to be tardy.

27 . Respondent nonetheless continued to be tardy,

necessitating another CFR, which was held on March 29, 2012. By

this time, Respondent had been tardy 86 days and absent 8.5 days

in the 2011 - 2012 school year.

28 . During the CFR, Respondent provided two FMLA leave

request forms completed by her son ' s treating physicians

certifying the freq uency and duration of her son ' s flare - ups that

necessitated leave. One of these, dated March 6, 2012, stated

that flare - ups occurred at a frequency of every one to two months

for a duration of two to three days, while the other, dated

February 20, 2012, s tated that the flare - ups occurred

approximately once a month and did not specify a duration.

29 . Under any circumstances, Respondent was tardy more

frequently than the number of days of leave documented as

necessary by either of these FMLA forms.

3 0 . Re spondent again was given directives, which included

those previously provided regarding punctuality and attendance,

calling in by 7:00 a.m. if tardiness was anticipated, physician

documentation for leave requests, performance of her teaching

duties, compor ting herself in a manner that reflected credit on

herself and Miami - Dade County Public Schools, and adherence to

School Board policies and applicable Department of Education

rules. Respondent was again provided copies of the policies,

rules, and other doc uments previously given to her. Respondent

was offered the option of resigning her position but declined.

31 . Surrancy recommended that Respondent be suspended from

her teaching position. However, Respondent was not suspended

during the 2011 - 2012 schoo l year. 9 /

32 . Although Respondent ' s tardiness during the 2011 - 2012

school year required coverage of her homeroom class by co lleagues

on several occasions, she did not miss any classroom

instructional time. 1 0 /

2012 - 2013 School Year

3 3 . For the 2012 - 2 013 school year, Respondent was hired as

a math and science teacher in the Educational Alternative

Outreach Program ' s ( " EAO " ) credit recovery program. She was

assigned to the EAO ' s 5000 Role Models location. In this

assignment, Respondent taught between 12 and 15 students in

grades six through eight.

3 4 . The 5000 Role Models facility was located between 35

and 40 miles from Respondent ' s home. She had a commute of

between one hour ten minutes and two hours one way from her home

to 5000 Role Models.

3 5 . The teacher workday hours for this location were

8:20 a.m. to 3:40 p.m. Respondent was informed of this schedule

when she was interviewed by EAO Principal Claire Warren, and by

letter from Warren regarding her projected teaching assignment

for the 20 12 - 2013 school year. Warren credibly testified that at

the time she was interviewed , Respondent did not express any

concerns regarding this schedule.

36 . The student school day at 5000 Role Models started at

9:00 a.m.

37 . Shortly after the school ye ar commenced, Respondent

began being tardy. During the first week of the students ' school

year, Respondent was tardy twice, approximately 20 minutes each

time.

38 . On August 31, 2012, Warren issued Respondent a written

memorandum reminding her of the di rectives that were issued the

previous school year and directing her to be punctual and in

regular attendance; call before 8:00 a.m. to notify either Warren

or the assistant principal if she was going to be absent or

tardy; provide physician documentation for absences and tardies

due to illness; timely submit updated FMLA forms if anticipated

illness or tardies covered under the FMLA are anticipated; adhere

to all School Board policies; and perform her job

responsibilities. Respondent was placed on notice that

noncompliance with these directives would constitute gross

insubordination and would necessitate notification of the Office

of Professional Standards for the imposition of discipline.

39 . Respondent continued to be tardy. As of October 1,

2012, Re spondent had been tardy eight times 1 1 / and absent three

days. 1 2 / On some of the days she was tardy, Respondent did not

call to notify the administration, as she had been directed to

do; on other days, she sent text messages but did not call .

40 . Warren conducted another conference with Respondent on

October 1, 2012. She issued another memorandum documenting

Respondent ' s tardies since the beginning of the 2012 - 2013 school

year , reiterating the directives previously issued on August 31,

and notifying Res pondent that failure to comply with the

directives would constitute gross insubordination.

41 . Warren also provided a letter to Respondent regarding

FMLA coverage of her tardies and absences. T he letter informed

Respondent that only absences , i .e., t ime away from the worksite ,

and not tardies were covered by the FMLA, and that it was her

responsibility to notify the school if she were going to be

absent pursuant to an FMLA - certified illness event. Attached to

the letter was an FMLA Form to enable Respondent to update her

FMLA - covered illness certification as necessary.

42 . Respondent ' s tardies continued. She was tardy on

October 2, 5, 8, and 9 ÏÏ on some of these days as much as 45 to 70

minutes late. On the days when she wa s tardy by 40 or more

minutes, she miss ed classroom instructional time and her students

had to be placed in another teacher ' s classroom.

43 . On October 10, 2012, Petitioner took action to suspend

Respondent for 30 workdays without pay, 1 3 / for gross

insubordination and for vi olating School Board policies regarding

the Code of Ethics (policy 3210), Standards of Ethical Conduct

(policy 3210.01), and Leaves of Absence (policy 3430), and rules

6B - 1.001, 6B - 1.006, and 6B - 4.009. 1 4 /

44 . Respondent served her suspension and returned to work

on November 26, 2012. On that day, she was 11 minutes tardy; the

following day, she was 40 minutes tardy.

45 . On November 29, 2012, Warren issued another memorandum

to Respondent reiterating the directives previously given on

August 31 and Octob er 1. Respondent was informed that her

failure to comply with the directives would constitute gross

insubordination and would necessitate referral to the Office of

Professional Standards for further discipline.

46 . Respondent continued to be tardy. In D ecember 2012 and

January 2013, Respondent was tardy 13 days, two of which required

coverage of her class. Respondent did not call in to the school

to notify them of her anticipated t ardiness but she did notify

the school by text message on some of these o ccasions.

47. On February 1, 2013, Respondent was notified of a CFR

scheduled for February 5, 2013.

48 . On February 4, 201 3 , Respondent notified Warren by

electronic mail that she would not be at school that day or the

following day.

49 . On Februar y 6, 201 3 , Respondent notified Warren by

electronic mail that she was taking a leave of absence " for at

least the next few weeks. " She also informed Warren that her

absences the previous two days had been due to her own illness.

50 . Respondent did not su bmit a leave request form to

Warren prior to taking sick leave.

51 . Respondent did submit a Leave of Absence Medical

Documentation Form to the Miami - Dade County Public Schools Office

of Retirement/Leave/Unemployment Compensation ( " Leave Office " ) on

Febr uary 5, 2013, containing her physician ' s certification that

she was ill and recommending a leave of absence from February 4,

2013, to March 1, 2013.

52 . Because she was requesting approval of leave for less

than 30 days ' duration, u nder the UTD Contract , Respondent should

have filed her leave request with Warren rather than with the

Leave Office. UTD Contract Article XIV, section 2, paragraph A.,

governing notification in the event of teacher absence, states in

pertinent part :

When a teacher, for whom an emergency

temporary instructor is employed, will be

absent from work, due to illness or injury or

due to personal reasons, he/she shall notify

the supervising administrator (or designee) ,

as soon as possible, but no later than one

hour before the start of his/her scheduled

workday, in order that an emergency temporary

instructor can be employed or other

arrangements made. If said absence/leave is

for a specified period of time, no further

notice is necessary. In the event of a

change in this specified period of absence,

the employee will proceed, pursuant to the

stipulations herein. Where an absent teacher

does not notify his/her supervising

administrator, as stipulated herein, and

where there are not extenuating

circumstances, as determined by the

sup ervising administrator, such teacher will

have the option to utilize personal leave or

leave without pay. However, such

determination by the supervising

administrator shall not be made arbitrarily.

UTD Contract, art. XIV, § 2.A. (emphasis

added).

53 . A rticle XIV, section 10, governs sick leave without pay

for illness. Paragraph C. of that section states: " [e]mployees

whose illness requires an absence of over 30 days must file an

application for extended sick leave indicating the anticipated

length of such absence and supported by a statement from

competent medical authority. " This leave request would be filed

with the Leave Office. However, because Respondent did not

request sick leave for a period exceeding 30 days, this provision

was not applicab le to her leave request.

54 . Notwithstanding , Respondent ' s leave request was

reviewed by a medical consultant for Miami - Dade County Public

Schools and ultimately was denied.

55 . Apparently, s ome time elapsed before the Leave Office

forwarded Responden t ' s leave request and denial decision to

Warren. Warren testified: " I didn ' t get the request until much

afterwards, you know, after she had been out several days .... "

56 . Even after Warren received Respondent ' s leave request

form and denial from the Le ave Office, more time passed before

she notified Respondent. It was not until March 1, 2013 , that

Warren sent Respondent a letter informing her that her leave

request had been denied and that her absences for the entire

month of February were unauthorized , thus warranting her

dismissal on the basis of job abandonment.

57. At approximately the same time Warren notified

Respondent that her leave request was denied, Warren also

notified Respondent, by separate email, that she had incorrectly

submitted her leave request to the Leave Office , instead of

submitting it to her (Warren).

58 . On t he same day that Warren notified Respondent that

her leave request had been denied, Respondent submitted a nother

leave request form and a medical documentation form to W arren,

retroactively requesting approval of her sick leave taken between

February 4 to March 18, 2013, due to her own illness. Warren

denied the request that same day , citing the medical consultant ' s

determinati on as the basis for the denial. Warren ' s le tter did

not cite an independent basis for the denial. Petitioner did not

present any competent evidence regarding the specific basis for

the medical consultant ' s determination to deny the request.

59 . Respondent returned to work on March 4, 2013. Sh e was

tardy that day and the following day.

60 . On March 6, 2013, a CFR was held. Th e CFR originally

had been scheduled for February 5, 2013, but when Respondent took

leave, it was rescheduled. At the meeting, Respondent was

apprised that her tardies an d absences were excessive and that

they, along with her failure to adhere to the other previously

issued directives, constituted gross insubordination.

6 1 . On March 13, 2013, Petitioner took action to suspend

Respondent without pay and terminate her emp loyment as a teacher.

Respondent ' s Criminal History

62 . Petitioner presented evidence that in August 2012, a

records check for Respondent was generated after information was

received from Petitioner ' s Fingerprinting Office indicating that

Respondent had been arrested in January 2011 for violation of a

protective injunction and in July 2011 for battery. However,

this eviden ce consisted solely of hearsay . Petitioner did not

present any non - hearsay evidence establishi ng that these arrests

occurred.

6 3 . Respondent denied that she was arrested in January

2011 . She acknowledged that she was arrested for battery in July

2011 . She testified , credibly, that the arrest occurred over the

July 4th holiday and that she timely reported this arrest by

calling Pet itioner ' s instructional staffing office. Respondent

credibly testified that the charge was not prosecuted and

ultimately was dismissed. Petitioner did not present any

competent or credible evidence to refute Respondent ' s testimony

on th e s e point s .

Respo ndent ' s Defenses

6 4 . Respondent asserts that she was not tardy as frequently

in the 2011 - 2012 school year as Petitioner asserts. She

question s the accuracy of Surrancy ' s and others ' recordkeeping

regarding her tardiness. However, she did not present any

specific evidence to show that Petitioner ' s records of her

tardiness in the 2011 - 2012 were inaccurate; thus, her position on

that point is essentially speculative.

6 5 . She also claims that Surrancy did not treat her fairly

or equitably during the 2011 - 2 012 school year. Specifically, she

asserts that Surrancy had the authority and flexibility to adjust

her workday schedule so that she did not have to cover a homeroom

class , thus allowing her to arrive at work later, but that

Surrancy unfairly chose not t o do so . Respondent further asserts

that Surrancy had provided such accommodation to another teacher

in a previous school year. Thus, Respondent claims that Surrancy

treated her unfairly. 1 5 / However, Surrancy testified,

persuasively, that she could not have relieved Respondent of

having a homeroom in order to enable her to arrive later in the

workday because instructional personnel, other than coaches and

co - teachers, were assigned homeroom or other professional duties

that required them to be at school during regular workday hours.

Thus, there was no one else available to assume Respondent ' s

homeroom class responsibilities. 1 6 /

6 6 . Respondent also asserts that Surrancy treated her

disparately and unfairly by singling her out for discipline for

her tar dies, while not disciplining others who also were often

tardy. However, e ven if that were the case, it does not excuse

Respondent ' s tardies or provide a basis for Surrancy to decline

to enforce school policies with respect to Respondent.

6 7 . Respondent also asserts that she was not afforded the

FMLA leave to which she was legally and contractually entitled .

Specifically, she argues that she filed FMLA leave forms stating

the need for intermittent leave to care for her son, so that for

the days on which s he was tardy, the number of minutes by which

she was tardy should have been counted as leave under the FMLA.

6 8 . Respondent testified , credibly, that she did not

purposely refuse to follow the directives given her by Surrancy,

Warren, and the Office of Professional Standards, and that her

tardi e s during both school years were the result of her having to

provide medical care for her young son and take him to daycare,

then commute in heavy traffic to the worksites.

69 . Moreover, to the extent Petitioner c laimed that

Respondent was insubordinate because she did not adhere to

directives to call the school if she was going to be tardy,

Respondent credibly countered that she often would call in, only

to be put on hold for some time and then told that the

admin istrator she was attempting to reach was not available;

thus, she started sending text messages instead to ensure that

her message was received.

7 0 . Regarding the arrest reporting issue, Respondent denied

that she was arrested in January 2011, and testif ied that she

timely reported her July 2011 arrest to the appropriate

authority.

III. Findings of Ultimate Fact

7 1 . In these consolidated proceedings, Petitioner seeks to

suspend Respondent without pay and terminate her employment 1 7 / as

a teacher on the basis of just cause ÏÏ specifically, gr oss

insubordination and misconduct in office . 1 8 /

7 2 . As more fully addressed below, Petitioner bears the

burden of proof, by a preponderance of the evidence, to show that

Respondent committed the violations of sec tion 1012.33 and rules

6A - 5.056; and 6B - 1.001 and 6A - 10.080; and 6B - 1.006 and 6A - 10.081.

Gross Insubordination

7 3 . Pursuant to the foregoing findings of fact, it is

determined that Petitioner proved, by a preponderance of the

evidence, that Respondent 's conduct in accruing an extensive

number of tardies during the 2011 - 2012 and 2012 - 2013 school years

constituted gross insubordination .

7 4 . Although Respondent did submit leave request forms

estimating the frequency and duration of FMLA - covered leave she

would need in order to care for her son, the evidence shows that

she was tardy far more frequently than supported by any of the

forms she submitted. In order to accommodate an empl oyee ' s FMLA

request, Petitioner must be able to rely on the information the

employee provides on the FMLA leave form. If the information

provided o n the form is inaccurate, Petitioner is neither

required nor authorized to consider undocumented time away from

the work site as leave covered under the FMLA. 19/ While it is

admitted ly difficult to precisely predict when i llness will

occur , under any circumstances, the forms Respondent submitted

did not cover the frequency of her tardies incurred in the 2011 -

2012 and 2012 - 2013 school years. 20 /

7 5 . As addressed above, it appears t hat Respondent was the

victim of a coalescence of unfortunate personal circumstances

that interfered with her employment . Nonetheless, the fact

remains that she was repeatedly put on notice by Surrancy,

Warren, and the Office of Professional Stand ards tha t her

continued tardiness would constitute gross insubordination. Any

measures that Respondent purportedly took to rectify the

circumstances , such as enlisting the help of a friend to take her

son to daycare, apparently were unsuccessful. Respondent had the

option in the 2011 - 2012 school year to transfer to another school

to address the morning commute issues, but she chose not to.

Although s he had legitimate personal and professional reasons for

choosing to remain at HMS, the fact remains that she elect ed not

to pursue a course of action that may have addressed the

problematic circumstances she found herself in . Under these

circumstances, the undersigned concludes, albeit reluctantly,

that Respondent ' s conduct ÏÏ which took place over a period of two

scho ol years , after frequent admonitions , and after she had been

placed on notice several times that her continued conduct would

constitute gros s insubordination ÏÏ does, in fact, constitute gross

insubordination.

7 6 . With respect to Respondent ' s absences in February 2013,

the evidence indicates that Petitioner ' s Leave Office and

Principal Warren unnecessarily delayed notifying Respondent that

her leave request for February 2013 had been denied. The

evidence gives rise to the inference that Respondent may ha ve cut

her leave short and returned to the work site had she been timely

informed that her request had been denied . Moreover, Petitioner

presented no competent evidence regarding the specific basis for

the Leave Office ' s denial of Respondent ' s request , or for

Warren ' s denial of Respondent ' s retroac tive request on the same

basis. Under these circumstances, the undersigned determines

that Respondent ' s absences for the month of February 2013 should

not be conside red unexcused.

7 7 . However, even without considering these absences,

Respondent ' s repeated tardiness over an extended period of time

without proper leave documentation and after extensive prior

notice of the consequences, is sufficient to establish gross

insubordination.

Misconduct in Office

7 8 . As more fully discussed below, Petitioner proved, by a

preponderance of the evidence, that Respondent committed

misconduct in office under both versions of rule 6A - 5.056 in

effect in the 2011 - 2012 and 2012 - 2013 school years, respectively.

79 . Specifica lly, Respondent ' s frequent and repeated

tardiness during the 2011 - 2012 school year violat ed the Code of

Ethics in the Education Profession because her conduct caused her

to lose the respect and confidence of her colleagues. In

particular, Respondent ' s fre quent tardiness substantially

undermined Surrancy ' s confidence in her reliability , and , thus,

impair ed her effectiveness in the school system.

80 . Respondent ' s frequent and repeated tardiness over the

course of the 2012 - 2013 school year also constituted misconduct

in office. Again, s he violated the Code of Ethics in the

Education Profession by failing to maintain the respect and

confidence of her colleagues . Respondent ' s frequent tardiness

adversely affected Warren ' s confidence in her reliability.

Add itionally, on the days when Respondent 's tardiness

necessitated her students being moved to another teacher ' s

classroom, her students ' learning environment was disrupted, and

her own ability and that of her colleagues to effectively perform

their duties wa s reduced. As a result, Respondent's

effectiveness in the school system was impaired.

8 1 . Petitioner also charged Respondent with violating

P olicy 3210, Standards of Ethical Conduct, which provides that

all employees are representatives of the Miami - Dade County School

District and requires employees to conduct themselves in a manner

that will reflect credit upon themselves and the school system.

Respondent ' s frequent tardies over an extended period of time

gave the appearance of disregard for school policies and did not

reflect credit on her or on the school district. Moreover,

Respondent did not protect her students from conditions harmful

to learning on the days when they had to be moved to another

teacher ' s classroom due to her tardiness . 2 1 / Acco rdingly,

Respondent violated Policy 3210.

8 2 . Respondent also violated Policy 3210.01, Petitioner ' s

Code of Ethics. As found above, she did not protect her students

from conditions harmful to learning on the days when she was so

tardy that they had to be moved to another classroom.

8 3 . However, Respondent did not violate Policy 3430, Leaves

of Absence. For the reasons discussed above, Respondent ' s

absences in February 2013 should not have been determined

unexcused; thus, she did not violate Policy 3 430.

8 4 . Respondent also did not violate Policy 3121.01,

Employment Standards and Fingerprinting of Employees. To the

extent Petitioner argues that Respondent lacks good moral

character based on having been arrested, Petitioner did not

present any compe tent evidence regarding her arrests or failure

to timely report them as required by school board policy.

Respondent acknowledged that she had been arrested in July 2011

but testified that she had timely reported it, and that the

charge ultimately was dism issed. Petitioner did not offer any

competent evidence 2 2 / to counter Respondent ' s testimony, which is

deemed credible and persuasive.

Factual Basis for Recommended Sanction

8 5 . T he persuasive evidence establishes that Respondent did

not purposely set out to violate school policies and Department

of Education rules, but that circumstances coalesced such that

Respondent found herself in the extremely difficult position of

having to care for her very ill son and take him to daycare, then

undertake a lengt hy commute in morning traffic, without enough

time to accomplish both.

8 6 . As unfortunate and trying as those circumstances were,

they do not excuse Respondent from complying with the crucial and

reasonable requirement that employees arrive to work on t ime. 2 3 /

8 7 . Nonet heless, the evidence establishes that Respondent

is an innovative , proficient teacher in the critical subject

areas of science and math, and that she cares about performing

her job well ÏÏ to the extent that she declined an out - of - field

teaching assignment , in part due to concern that she would not

perform effective ly in that assignment. As such, it is

reasonable to infer that under less demanding circumstances , such

as having a shorter commute or a later workday starting time ,

Responde nt would perform her teaching duties proficiently and

professionally.

8 8 . The circumstances in this case warrant upholding

Respondent ' s suspension s without pay commencing on October 1 1 ,

2012, and ending on November 26, 2012, and commencing on

March 13, 2013, through the summer vacation following the 2013 -

2014 school year , and denying back pay for the full period of her

suspension. However, given the very trying circumstances

Respondent faced in the 2011 - 2012 and 2012 - 2013 school years, and

because the e vidence indicates that under less oppressive

circumst ances Respondent likely would be an innovative,

proficient, and professional teacher, the undersigned believes

that terminating Respondent ' s employment would be excessivel y

harsh and that Petitioner woul d lose a good teacher .

CONCLUSIONS OF LAW

89 . DOAH has jurisdiction over the parties to, and subject

matter of, these consolidated proceedings pursuant to sections

120.569 and 120.57(1) , Florida Statutes .

9 0 . These are consolidated disciplinary procee dings brought

pursuant to sections 1012.33(1)(a) and (6), Florida Statutes, in

which Petitioner alleges that just cause exists, pursuant to

section 1012.33; Florida Administrative Code Rules 6B - 1.001 and

10A - 080, 6B - 1.006 and 6A - 10.081, and 6A - 5.056; and S chool Board

Policies 3210, 3210.10, 3430, and 3121.01 to suspend Respondent

from her employment without pay for 30 days commencing on

October 11, 2012, through November 21, 2012, and to suspend

Respondent from her employment without pay commencing on

Mar ch 13, 2013, through the resolution of this proceeding, and

dismiss her from her employment as a teacher with Petitioner.

These statutes and rules are penal and therefore must be strictly

construed, with ambiguities resolved in favor of the person

c harged with violating them. McCloskey v. Dep ' t of Fin. Servs . ,

115 So. 3d 1103 (Fla. 5th DCA 2013).

9 1 . Respondent is an instructional employee, as that term

is defined in section 1012.01(2). Petitioner has the authority

to suspend and terminate instruction al employees pursuant to

sections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a).

9 2 . To do so, Petitioner must prove, by a preponderance of

the evidence, that Respondent committed the alleged violations,

and that such violations constitute " just cause " fo r dismissal.

§ 1012.33(1)(a), (6), Fla. Stat.; McNeil 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).

9 3 . Whether Respondent committed the charged offenses is a

qu estion of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d

48 9, 491 (Fla. 1st DCA 1995).

9 4 . Sections 1012.33(1)(a) and (6) provide in pertinent

part that instructional staff may be terminated during the term

of their employment contract only for " just cause. "

§ 1012.33(1)(a), (6), Fla. Stat. 2 4 / " Just cause " is defined in

section 1012.33(1)(a) to include " misconduct in office " and

" gross insubordination. " For the reasons discussed below,

Petitioner has proved, by a preponderance of the evidence, that

just cause exists to suspend Respondent without pay and ter minate

her employment.

Gross Insubordination

9 5 . Respondent ' s conduct alleged to constitute gross

insubordination took place during a period spanning from August

2011 to March 2013. During that period ÏÏ specifically, on July 8,

2012 ÏÏ Florida Administra tive Code Rule 6A - 5.056, 2 5 / titled

" Criteria for Suspension and Dismissal, " was amended to revise

the definition of " gross insubordination. "

9 6 . Respondent ' s conduct alleged to constitute gross

insubordination in office that took place between August 2011 and

July 7, 2012, is governed by the version of rule 6A - 5.056 in

effect at that time. 2 6 / That rule defines " gross insubordination "

as " a constant or continuing intentional refusal to obey a direct

order, reasonable in nature, and given by and with proper

authority. "

9 7 . Respondent ' s conduct alleged to constitute gross

insubordination in office that took place during the period

commencing on July 8, 2012, through March 13, 2013, is governed

by the version of the rule in effect at that time. 2 7 / That rule

defines " gross insubordination " as " the intentional refusal to

obey a direct order, reasonable in nature, and given by and with

proper authority; misfeasance, or malfeasance as to involve

failure in the performance of the required duties. "

9 8 . Here, i t is undisputed that Surrancy and Warren

directly ordered Respondent to be punctual in her arrival at the

work site , and that they possessed the authority to issue and

enforce such orders.

99 . Both versions of rule 6A - 5.056 applicable to this

proceeding contain the requirement that the refusal to obey the

direct order be intentional. In Forehand v. Sch ool Board of Gulf

C ou nty , 600 So. 2d 1187 ( Fla. 1st DCA 1992), the court noted that

the word intent denotes that " the actor desires to cause

consequences of his act, or that he believes that the

consequences are substantially certain to result from it . " Id.

at 1193 (emphasis added).

10 0 . In this case, Respondent testified, credibly, that she

did not desire to cause the consequences of her actions.

No netheless , the evidence inescapably leads to the inference that

Respondent was aware of, and, thus, believed that the

consequences of her actions were substantially certain to result.

Here, Surrancy and Warren gave Respondent direct orders to be

punctua l on numerous occasions over an almost two - year period ,

and warned her that her repeated failure to do so would

constitute gross insubordination and subje ct her to disciplinary

action. Nonetheless, Respondent persisted in being tardy. Under

these circums tances, it is determined that the intent requirement

in both versions of rule 6A - 5.056 is met.

10 1 . Thus, based on the foregoing findings of fact, it is

determined that Respondent ' s frequent tardiness over two school

years, in violation of the principal s ' direct orders and with

notice of the consequences of her continued tardiness,

constitutes gross insubordination. See Miami - Dade Cnty. Sch. Bd.

v. McIntyre , Case No. 11 - 4922, 2012 Fla. Div. Adm in . Hear. LEXIS

35 (Fla. DOAH Jan. 12, 2012)(finding that sc hool employee ' s

repeated unexcused absences due to illness of her children and

other family responsibilities constituted gross insubordination).

See also Miami - Dade Cnty. Sch. Bd. v. Hankerson , Case No. 11 -

3193, 2011 Fla. Div. Adm in . Hear. LEXIS 1141 (Fla . DOAH Nov. 8,

2011)(finding that teacher ' s repea ted tardies and unexcused

absences constituted gross insubordination).

Misconduct in Office

10 2 . Respondent ' s conduct alleged to constitute misconduct

in office took place during a period spanning from Aug ust 2011 to

March 2013. During that period ÏÏ specifically, on July 8, 2012 ÏÏ

Florida Administrative Code Rule 6A - 5.056 , 2 8 / titled " Criteria for

Suspension and Dismissal, " was amended to revise the definition

of " misconduct in office. "

10 3 . Respondent ' s c onduct alleged to constitute misconduct

in office that took place between August 2011 and July 7, 2012,

is governed by the version of rule 6A - 5.056 in effect at that

time. 2 9 / That rule defines " misconduct in office " as:

[A] violation of the Code of Ethic s of the

Education Profession as adopted in [r]ule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in [r]ule

6B - 1.006, F.A.C., which is so serious as to

impair the individual ' s effectiveness i n the

school system.

To find Respondent guilty of misconduct under this version of the

rule, not only must Respondent be determined to have violated

rules 6B - 1.001 and 6B - 1.006, but the violations must be

determined to be so serious as to impair her effec tiveness in the

school system. See McMillan v. Nassau Cnty. Sch. Bd. , 629 So. 2d

226 (Fla. 1st DCA 1993).

10 4 . Respondent ' s conduct alleged to constitute misconduct

in office that took place during the period commencing on July 8,

2012, through March 13, 2013, is governed by the version of the

rule in effect at that time. 30 / That rule defines " misconduct in

office " as:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior t hat reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

Under this version of the rule, it is not necessary to find that

rule violations were so serious as to impair Respondent ' s

effectiveness in the school syste m.

10 5 . For the reasons addressed herein, it is concluded that

Respondent ' s frequent tardiness in the 2011 - 2012 school year

constituted misconduct in office, in violation of the version of

rule 6A - 5.056 in effect at that time . I t also is concluded that

Respondent ' s frequent tardiness in the 2012 - 2013 school year

constituted misconduct in office, in violation of the version of

rule 6A - 5.056 in effect at that time.

Code of Ethics

10 6 . Also between August 2012 and March 13, 2013 ÏÏ

specifically, on January 11, 2013 ÏÏ Florida Administrative Code

Rule 6B - 1.001, 3 1 / titled " Code of Ethics of the Education

Profession in Florida " was transferred to rule 6A - 10.080. The

rule ' s text was not amended. Accordingly, Rule 6B - 1.001 governs

Respondent ' s conduct alleged to have occurred between August 2011

and January 10, 2013, and rule 6A - 10.080 governs her conduct

alleged to have occurred after that date, but the applicable rule

standards remained the same.

10 7 . The Code of Ethics rule provides:

(1) The educator value s the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guara ntee of equal

opportunity for all.

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive for professional growth and will seek

to exercise th e best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

10 8 . For the reasons set forth in the findings of fact, it

is concluded that Respondent violated rules 6B - 1.001 and 6A -

10.080. The violation of rule 6A - 10.080 constitutes misconduct

in office, pursuant to the version of rule 6A - 5.056 in effect

during the 2012 - 2013 school year.

Principles of Professional Conduct

1 0 9 . Between August 2012 and March 13, 2013 , Florida

Administrative Code Rule 6B - 1.006, 3 2 / titled " Principles of

Professional Conduct for the Education Profession i n Florida, "

also was amended. On January 11, 2013, the rule was transferred

to rule 6A - 10.081 but its text was not amended. Accordingly,

rule 6B - 1.006 governs Respondent ' s conduct alleged to have

occurred between August 2011 and January 10, 2013, and rul e 6A -

10.081 governs Respondent ' s conduct alleged to have occurred on

or after that date; however, the applicable rule standards

remained the same.

11 0 . The rule provides in pertinent part:

(1) The following disciplinary rule shall

constitute the Princip les of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation or

suspension of the individual educator ' s

certificate, or the other penalties as

provided by law.

( 3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student ' s mental and/

or physical health and/or safety.

(b) Shall not unreasonably res train a

student from independent action in pursuit of

learning.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

* * *

(4) Obligation to the public requires that

the individual:

(a) Shall take reasonable pr ecautions to

distinguish between personal views and those

of any educational institution or

organization with which the individual is

affiliated.

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or ind irect public

expression.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

11 1 . For the reasons set forth in the findings of fact,

above, it is concluded that Respondent did not violate rule 6B -

1.006 or 6A - 10.081.

Petitioner ' s Policies

11 2 . School Board Policy 3210, Standards of Ethical

Conduct, states in relevant part:

All employees are representatives of the

District and shall conduct themselves,

both in their employment and in the

community, in a manner that will reflect

credit upon themselves and the school system.

A. An instructional staff member shall:

* * *

3. [M]ake a reasonable effort to protect the

student from conditions harmful to

learning and/or to the student ' s mental

and/or physical health and/or safety;

4. [N]ot unreasonably restrain a student

from independent action in pursuit of

learning;

* * *

8. [N]ot intentionally violate or deny a

student ' s legal rights;

* * *

17. [M]ai ntain honesty in all professional

dealings;

* * *

31. [S]elf - report within forty - eight (48)

hours to appropriate authorities any arrest

and final dispositions of such arrest other

than minor traffic violations; (DUI is not

considered a minor traffic vi olation.)

Instructional staff members shall self - report

any conviction, finding of guilt,

withholding of adjudication, commitment to a

pretrial diversion program, or

entering of a plea of guilty or Nolo

Contendere for any criminal offense other

than a mino r traffic violation within forty -

eight (48) hours after the final judgment.

11 3 . For the reasons addressed in the findings of fact,

above, it is concluded that Respondent violated this policy.

Pursuant to the version of rule 6A - 5.056 in effect during t he

2012 - 2013 school year, this violation constitutes a basis for

determining that Respondent engaged in misconduct in office.

11 4 . School Board Policy 3210.01, Code of Ethics , provides

in pertinent part:

I. INTRODUCTION

All members of The School Board of Miami - Dade

County, Florida, administrators, teachers and

all other employees of Miami - Dade County

Public Schools, regardless of their position,

because of their dual roles as public

servants and educators are to be bound by the

following Code of Ethics . Adherence to the

Code of Ethics will create an environment of

honesty and integrity and will aid in

achieving the common mission of providing a

safe and high quality education to all Miami -

Dade County Public Schools students.

As stated in the Code of E thics of the

Education Professio n in Florida State Board

of Education Rule 6B - 1.001(2) and (3) :

1. The educator values the worth and dignity

of every person, the pursuit of truth,

devotion to excellence, acquisition of

knowledge, and the nurture of a dem ocratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

2. The educator ' s primary professional

concern will always be for the student and

for the developm ent of the student ' s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

3. Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, students, parents, and other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

* * *

FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows :

¤ Cooperation Î Working together toward goals

as basic as human survival in an increasingly

interdependent world.

¤ Fairness Î Treating people impartially, not

playing favorites, being open minded, and

maintaining an objective attitude toward

those wh ose actions and ideas are different

from our own.

¤ Honesty Î Dealing truthfully with people,

being sincere, not deceiving them nor

stealing from them, not cheating

nor lying.

¤ Integrity Î Standing up for your beliefs

about what is right and what is wr ong and

resisting social pressure to do wrong.

¤ Kindness Î Being sympathetic, helpful,

compassionate, benevolent, agreeable, and

gentle toward people and other living things.

¤ Pursuit of Excellence Î Doing your best

with the talents you have, striving toward a

goal, and not giving up.

¤ Respect Î Showing regard for the worth and

dignity of someone or something, being

courteous and polite, and judging all people

on their merits. It takes three major

forms: respect for oneself, respect of other

people, and respect for all forms of life and

the environment.

¤ Responsibility Î Thinking before you act

and being accountable for your actions,

paying attention to others and responding to

their needs. Responsibility emphasizes our

positive obligations to car e for each

other.

Each employee agrees and pledges:

a. To abide by this Code of Ethics, making

the well - being of the students and the honest

performance of professional duties

core guiding principles.

b. To obey local, state and national laws,

codes and regulations.

c. To support the principles of due process

to protect the civil and human rights of all

individuals.

d. To treat all persons with respect and to

strive to be fair in all matters.

e. To take responsibility and be accountable

for his or her actions.

f. To avoid conflict of interest or any

appearance of impropriety.

g. To cooperate with others to protect and

advance the District and its students.

h. To be efficient and effective in the

delivery of job duties.

* * *

CONDUCT REGA RDING STUDENTS

As set forth in the Principles of

Professional Conduct for the

Education Profession in Florida, each

employee:

a. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student ' s mental

and/o r physical health and/or safety.

b. Shall not unreasonably restrain a student

from independent action in pursuit of

learning.

* * *

e. Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

f. Shall not intentionall y violate or deny a

student ' s legal rights.

11 5 . For the reasons addressed in the findings of fact, it

is concluded that Respondent violated Policy 3210.01. This

violation constitutes a basis for determining that Respondent

e ngaged in misconduct in off ice under the version of rule 6A -

5.056 in effect in the 2012 - 2013 school year.

11 6 . School Board Policy 3430, Leaves of Absence, states:

" [i]nstructional staff shall not be absent from their assigned

duties except as authorized by the Superintendent. A n

instructional staff member who is willfully absent from duty

without leave shall forfeit compensation for the time of such

absence. Personal leaves shall be governed by the collective

bargaining agreement. "

11 7 . For the reasons discussed in the find ings of fact, it

is concluded that Respondent did not violate Policy 3430.

11 8 . School Board Policy 3121.01, Employment Standards and

Fingerprinting of All Employees, states in pertinent part:

The School Board shall employ only

individuals of good moral character.

Employees not found to be of good moral

character will not be eligible for continued

employment. This policy applies to all

employees whether full - time, part - time, or

temporary. Good moral character means

exemplifying the acts and conduct tha t would

cause a reasonable person to have confidence

in an individual ' s honesty, fairness and

respect for the rights of others and for the

laws of the State and nation.

A. Fingerprinting

1. Periodic re - fingerprinting of employees

is required to remain e mployed. Personnel who

have had a break in service shall also be

required to be re - fingerprinted in order to

be re - employed. Upon re - fingerprinting, any

new criminal history that was not previously

reported and appropriately addressed may

result in nonree mployment, or disciplinary

action up to and including dismissal.

1 19 . For the reasons set forth in the findings of fact, it

is concluded that Respondent did not violate Policy 3121.01.

12 0 . In sum, it is concluded that Respondent ' s excessive

tardiness over a period covering two school years constitutes

gross insubordination and misconduct in office. Accordingly,

just cause exists under section 1012.33 to suspend Respondent

without pay and terminate her employment.

12 1 . However, for the reasons pre viously discussed herein ,

the undersigned believes that termination of Respondent ' s

e mployment is excessively harsh. Accordin gly, the undersigned

recommends that Petitioner uphold Respondent ' s suspensions

without pay commencing on October 11, 2012, throug h November 26,

2012, and commencing on March 13, 2013, through the summer

vacation following the 2013 - 2014 school year. Because the

suspensions without pay are recommended to be upheld, Respondent

should not receive any back pay for the period for which s he was

and is suspended. The undersigned recommends that Respondent's

employment as a teacher be reinstated at the start the 2014 - 2015

school year .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Pe titioner, Miami - Dade County School

Board, enter a final order upholding Respondent ' s suspension s

without pay commencing on October 1 1 , 2012 , and ending on

November 26, 2012, and commencing on March 13, 2013, through the

summer vacation following the 2013 - 2 014 school year ; denying back

pay for th e full period of her suspension; and reinstating

Respondent ' s employment as a teacher at the start of the 2014 -

2015 school year .

DONE AND ENTERED this 31st day of March , 2014 , in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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.state.fl.us

F iled with the Clerk of the

Division of Administrative Hearings

this 31st day of March , 2014

ENDNOTE S

1/ Respondent specializes in teaching science and math due to her

undergraduate training in pharmacy and business.

2 / Respondent ' s position that the documentation of her tardies in

the 2011 - 2012 school year was inaccurate is based on speculation;

she did not present any specific, persuasive evidence rebutting

Petitioner ' s demonstration that her tardies were accurately

determined.

3 / Pursuant to the FMLA, teachers in the Miami - Dade County Public

Schools district are entitled to 12 weeks ' unpaid leave for

specified reasons, including caring for a family member with a

serious health condition. In order to obtain approval for leave

under the FMLA, the teacher must complete an FMLA Form and the

condition for which leave is requested must be certified by a

healthcare provider. Information that must be certified by the

provider includes the recommended intermittent leave of absence

dates, which covers a s pecific time period for which intermittent

leave is anticipated to be needed; whether episodic flare - ups of

the condition are anticipated to prevent the employee from

performing his or her job functions and whether absence is

necessary during such flare - up s; and the estimated frequency and

duration of flare - ups and related incapacitation over the

subsequent six - month period. If leave is needed for a period

spanning longer than six months, a new FMLA form must be

completed certifying the conditions under wh ich the leave is

requested. If the conditions for which FMLA leave is requested

change during the six - month effective period of the FMLA form, a

new form certifying the changed conditions must be submitted.

4 / As the principal of HMS, Surrancy had t he authority to issue

directives (orders) to Respondent.

5 / The evidence shows that Respondent was an innovative teacher

in her subject area of science.

6 / Respondent ' s 2009 - 2010 school year performance evaluation,

conducted while she taught at Norla nd Middle School, rated her as

" proficient " in all categories.

7 / If Respondent pursued this course of action, it can be

inferred that it did not alleviate the circumstances that

resulted in Respondent ' s tardiness, because as discussed below,

Respondent c ontinued to be tardy.

8 / Given that Respondent ' s tardies appear to have been due to

circumstances largely beyond her control and that she appeared to

be trying to take steps to rectify the situation, Surrancy ' s

actions in this regard were unhelpful, but nonetheless were

within her discretion as principal to ensure smooth operation of

HMS.

9 / As discussed below, Respondent was suspended during the 2012 -

2013 school year after she had incurred additional absences

during that school year.

1 0/ Respondent ' s homeroom lasted an hour and her first period of

instructional class time began at 8:45 a.m.

1 1/ One of the eight tardies later was determined covered by the

FMLA. Respondent ' s tardies were documented by Warren or by

assistant principals when Warren w as not present at the 5000 Role

Models location.

1 2/ One of Respondent ' s absences was authorized under the FMLA,

and the other constituted authorized personal leave pursuant to

the UTD contract.

1 3/ Respondent timely challenged this action, which is a t issue

in these consolidated proceedings as Case No. 12 - 3603.

1 4/ This rule had been transferred to rule 6A - 5.056 by this date;

that rule number is the correct citation.

1 5/ As further evidence to support Respondent ' s position that

Surrancy was unrea sonable in denying her request for modification

of her workday schedule, Respondent testified that when she

taught at Norland Middle School between 2008 and 2011, that

principal did modify her schedule to accommodate her late arrival

due to caring for her son. As discussed in note 16, the UTD

Contract grants broad discretion to the school principal to grant

or deny such requests. Surrancy presented a plausible,

reasonable basis for denying Respondent ' s request, s o did not

abuse her discretion. Moreover, under any circumstances, any

claim that Surrancy violated the UTD Contract should have been

addressed in a grievance proceeding, rather than in this

proceeding.

1 6/ Article IX, section 2 of the UTD Contract requires that

teacher scheduling be accomplish ed in a fair, equitable, and

impartial fashion, taking into account seniority and employee

preferences. Even if other teachers had been available to cover

Respondent ' s homeroom, it was within Surrancy ' s discretion, as

the school principal, to determine wh ether to transfer

Respondent ' s homeroom class responsibilities to another teacher,

taking into account the competing interests contemplated in this

contract provision.

1 7/ Respondent already had served a 30 - day suspension without

pay, from October 11, 2012, to November 21, 2012, and challenges

that suspension in case no. 12 - 3603. In case no. 13 - 1177,

Respondent challenges Petitioner ' s most recent action to suspend

her without pay and terminate her employment.

1 8/ Rule 6A - 5.056 was amended in Janu ary 2013 to make violation

of school board rules a basis for a determination of misconduct

in office.

19/ See Webb v. Nationwide Mut. Ins. Co. , 2009 U.S. Dist. LEXIS

8 3520 (S.D. Ohio Sept. 14, 2009) , infra note 20.

20 / Petitioner relies on Brown v. Ea stern Maine Med ical C en t e r ,

514 F.Supp. 2d 104 (D. Me. 2007) , as support for its position

that the FMLA does not, in any case, cover tardiness to work.

However, other courts have interpreted the FMLA to cover

tardiness under appropriate circumstances. I n Webb v. Nationwide

Mut. Ins. Co. , 2009 U.S. Dist. LEXIS 83520 (S.D. Ohio Sept. 14,

2009), the court determined that FMLA leave did not cover the

plaintiff ' s tardiness to work, but only because she had not

provided documentation adequate to show that the tardies were due

to serious medical conditions of herself or her child. A fair

reading of Webb is that the plaintiff ' s tardies would have been

considered " leave " had she provided documentation sufficient to

demonstrate medical necessity for them. Similar ly, here, had

Respondent accurately documented the frequency with which she was

going to be tardy (admittedly difficult but nonetheless legally

required under the FMLA) her tardies should have been considered

covered leave under the FMLA for the period o f time when she was

not present at the work site. In any event, Respondent did not

provide appropriate documentation to support the frequency of her

tardi e s.

2 1 / It is determined that Respondent did not violate Policy 3210

by failing to self - report arr ests within 48 hours to appropriate

authorities and final dispositions of such arrests. The only

competent evidence in the record establishes that Respondent was

arrested in July 2011 and did timely self - report that arrest,

which ultimately was disposed o f by dismissal of the charges.

2 2 / In its Proposed Recommended Order, Petitioner asserts that

" despite Respondent ' s contention to the contrary, there is no

evidence that she ever reported this arrest to the District. "

This is an incorrect statement. R espondent ' s testimony

constitutes evidence that she reported the July 2011 arrest, and

there is no competent substantial evidence in the record to

counter this testimony. Moreover, as the party asserting the

affirmative of the issue Ï Ï i.e., that Respondent violated this

policy by failing to report an arrest ÏÏ the burden is on

Petitioner to prove that assertion. As previously discussed,

Petitioner did not present any competent evidence establishing

that the alleged violation occurred.

2 3 / Indeed, if ever y employee who faced challenging child care

and workday commute issues were excused from compliance with the

requirement to arrive timely at work, Petitioner could not

effectively operate its school system.

2 4 / The conduct at issue in these proceedings is alleged to have

occurred between August 2011 and March 2013. The 2011 version of

section 1012.33 governs conduct that is alleged to have occurred

between August 2011 and the effective date of Florida Statutes

2012; the 2012 version of section 1012.33 governs conduct that is

alleged to have occurred between that date and March 2013.

Section 1012.33 was not amended during the 2012 legislative

session, so the 2011 and 2012 versions of this statute are the

same.

2 5 / Rule 6A - 5.056 originally was adopted as rule 6B - 4.09, and was

transferred to rule 6B - 4.009 on April 5, 1983. Also on that

date, the rule was transferred to rule 6A - 5.056, which is the

current and correct citation for this rule. See rule 6A - 5.056,

rulemaking authority (referring to the rule as " formerly " 6B -

4.009).

2 6 / The version of rule 6A - 5.056 in effect during this period was

adopted and became effective on April 5, 1983.

2 7 / The version of rule 6A - 5.056 in effect during this period was

adopted and became effective on July 8, 20 12.

2 8 / Rule 6A - 5.056 originally was adopted as rule 6B - 4.09, and was

transferred to rule 6B - 4.009 on April 5, 1983. Also on that

date, the rule was transferred to rule 6A - 5.056, which is the

current and correct citation for this rule. See rule 6A - 5.0 56,

rulemaking authority (referring to the rule as " formerly " 6B -

4.009).

2 9 / The version of rule 6A - 5.056 in effect during this period was

adopted and became effective on April 5, 1983.

30 / The version of rule 6A - 5.056 in effect during this period was

adopted and became effective on July 8, 2012.

3 1 / Rule 6B - 1.001 initially was adopted on July 6, 1982.

3 2 / Rule 6B - 1.006 initially was adopted on December 29, 1998.

COPIES FURNISHED:

Tamara H. Snow

12010 Southwest 179th Terrace

Miami, Florida 33177

Maja Sha - ron Holman, Esquire

Holman Law Group

Suite 303

7880 West Oakland Park Boulevard

Sunrise, Florida 33351

Heather L. Ward, Esquire

Miami - Dade County Public Schools

1450 Northeast 2nd Avenue

Miami, Florida 33132

Matthew Carson, General Co unsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florid a 32399 - 0400

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132 - 1308

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.