12-003970TTS Miami-Dade County School Board vs. Jana Lantz Status: Closed Recommended Order on Tuesday, July 29, 2014.

Summary: School Board established that Respondent middle school science teacher engaged in misconduct in office, and therefore, "just cause" exists justifying her termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 1 2 - 3970 TTS

JANA LANTZ ,

Respondent .

/

RECOMMENDED ORDER

This case came before Administrati ve Law Judge Darren A.

Schwartz for final hearing on May 6, 201 4 , in Miami , Florida.

APPEARANCES

For Petitioner: Heather Ward , Esquire

Sara Marken, Esquire

Miami - Dade County S chool Board

Suite 430

1450 Northeast Second Avenue

Miami , Florida 3 3132

For Respondent: Jana Lantz , pro se

Post Office Box 613

Meadville, Pennsylvania 16335

STATEMENT OF THE ISSUE

Whether just cause e xists for Petitioner to suspend

Re s pondent without pay and terminate her employment as a teacher.

PRELIMINARY STATEMENT

On November 21, 2012, at its scheduled meeting, Petitioner,

Miami - Dade County School Board (ÐSchool BoardÑ), took action to

suspe nd Respondent, Jana Lantz (ÐRespondentÑ), without pay and

initiate proceedings to terminate her employment as a teacher .

Respondent was advised of her right to request an administrative

hearing within 15 days.

On November 30, 2012, Respondent timel y requested an

administrative hearing . S ubsequently, the School Board referred

the matter to the Division of Administrative Hearings ( " DOAH " ) to

assign an Administrative Law Judge to conduct the final hearing.

At the request of the parties, t he final hea ring initially

was set for February 19 , 2013. On January 8, 2013, Respondent

requested a continuance, and Judge Errol H. Powell entered an

O rder on January 23, 2013, resetting the hearing for April 5 ,

2013.

On March 5, 2013, the School Board filed its C orrected

Notice of Specific Charges . The Corrected Notice of Specific

Charges contains certain factual allegations , and, based on those

factual allegations, the School Board charged Respondent with the

following violations in five consecutively numbered c ounts :

(1) Misconduct In Office; (2) Gross Insubordination;

(3) Violation of School Board Policy (Standards of Ethical

Conduct - 3210); (4) Violation of School Board Policy (Code of

Ethics - 3210.01); and (5) Violation of School Board Policy

(Threatening Be havior To w ard Staff - 3380).

On March 7, 2013, the School Board requested a continuance

of the final hearing , and Judge Powell entered an O rder on

March 18, 2013, resetting the hearing for June 1 9 , 2013. On

April 3 , 2013, this case was transferred to Judg e R. Bruce

McKibben, Jr. On May 21, 2013, the School Board requested a

continuance, and Judge McKibben entered an O rder on May 22, 2013,

denying the continuance.

In th e meantime, on April 23, 2013, t he Education Practices

Commission (ÐEPCÑ) in the case of Robinson v. Lantz , EPC Case

No. 12 - 0126 - RT, entered a Final Order suspending RespondentÓs

educatorÓs certificate for a period of one year Î until April 24,

2014. On June 6, 2013, Judge McKibben placed th e instant case in

abeyance, while Respondent ap pealed the EPCÓs decision to suspend

her teaching certificate for one year. The EPCÓs decision was

per curiam affirmed without opinion by the First District Court

of Appeal on January 23, 2014 . On March 6, 2014, a pre - hearing

conference was held with the parties, after w hich Judge McKibben

entered an O rder on March 11, 2014, resetting the final hearing

for May 6, 2014. On April 1 8, 2014, this case was transferred to

the undersigned for all further proceedings.

The final hearing commenced as scheduled on May 6, 2014,

with both parties present. At the hearing, the School Board

presented the testimony of Maria Fernandez, Yvetot Antoine,

Eulalee Sleight, Luis Chiles, and Dr. Jimmie Brown, Jr.

PetitionerÓs Exhibits 1 through 6, 8 through 10, 12, 14, and 15

were received into evidence. Respondent testified on her own

behalf and presented the additional testimony of Mercita

Wimberly, Julia Dixon, Dwayne J. Turner, Leonardo Valmana, and

Arthur Leichner. RespondentÓs Exhibits 1, 2, 2a, 2b, 2c, 2d, 2e,

3a, 5 (f irst page only), 10, 11, and 16 were received into

evidence.

The two - volume final hearing Transcript was filed on

June 27, 2014 . The parties timely filed proposed recommended

orders, which were given consideration in the preparation of this

Recomme nded Order. Unless otherwise indicated, all rule and

statutory references are to the versions in effect at the time of

the alleged violations.

FINDING S OF FACT

1. The School Board is a duly - constituted school board

charged with the duty to operate, contr ol, and supervise the

public schools within Miami - Dade County, Florida.

2 . At all times material to this case, Respondent was

employed as a science teacher at Thomas Jefferson Middle School

(ÐThomas JeffersonÑ), a public school in Miami - Dade County,

Fl orida , pursuant to a professional services contract .

Respondent was initially hired by the School Board as a teacher

in 1994.

3 . At all times material to this case, RespondentÓs

employment with the School Board was governed by Florida law, the

Sch ool BoardÓs policies, and the collective bargaining agreement

between the School Board and the United Teachers of Dade (ÐUTDÑ).

4 . Maria Fernandez, the principal of Thomas Jefferson, was

authorized to issue directives to her employees, including

Respo ndent.

The 2010 - 2011 School Year

5. Principal Fernandez issued Respondent a letter of

reprimand on February 8, 2011, concerning an alleged incident

that occurred on January 4, 2011. The reprimand directed

Respondent to : (1) strictly adhere to all Sch ool Board rules and

regulations , specifically, School Board rules 6Gx13 - 4A - 1.21 and

6Gx13 - 4A - 1.213; (2) cease and desist from engaging in any

unprofessional conduct while serving as an employee of the School

Board; (3) perform duties and responsibilities g iven to her by

Principal Fernandez; and (4) conduct herself, both in her

employment and in the community, in a manner that will reflect

credit upon herself and the School Board. Principal Fernandez

informed Respondent that failure to comply with the direc tives

would result in further disciplinary action. On February 8,

2011, Principal Fernandez held a Conference for the Record

(ÐCFRÑ) with Respondent regarding this alleged incident.

The 2011 - 2012 School Year

6. On November 11, 2011, Principal Fernan dez called

Respondent into her office to speak with her about the School

BoardÓs policy regarding the appropriate use of e - mail.

Respondent allegedly stormed out of the meeting and , in the

process of doing so, called Principal Fernandez a Ðracist pig.Ñ

A s she was leaving the office, two other administrators were in

the vicinity , and Respondent allegedly stated: ÐIÓm tired of

dealing with you three pigs.Ñ

7. During a teacher - of - the - year faculty meeting in

November 2011, Respondent allegedly c alled the assistant

principal a Ðbully Ñ and allegedly refused to leave the meeting

after being directed to do so by the assistant p rincipal.

8. Principal Fernandez held another CFR with Respondent on

November 29, 2011. Furthermore, Principal Fernandez issued

Re spondent another letter of reprimand on November 29, 2011,

concerning these incidents, which again directed Respondent to:

(1) strictly adhere to all School Board rules and regulations,

specifically, School Board rules 6Gx13 - 4A - 1.21 and 6Gx13 - 4A -

1.213; (2 ) cease and desist from engaging in any unprofessional

conduct while serving as an employee of the School Board;

(3) perform duties and responsibilities given to her by Principal

Fernandez; and (4) conduct herself, both in her employment and in

the commun ity, in a manner that will reflect credit upon herself

and the School Board. Principal Fernandez informed Respondent

that failure to comply with the directives would result in

further disciplinary action.

9. On May 24, 2012, Principal Fernandez observe d Respondent

in another teacherÓs homeroom class. Principal Fernandez

allegedly told Respondent she should not be in the other

teacherÓs class because she was interrupting that teacherÓs

supervisory duties of her students. In response, Respondent

alleged ly yelled, in a very loud voice, and in front of the

students and teacher: ÐThatÓs what the grievance is all about.

Get some dopamine.Ñ Respondent then allegedly pulled her

cellphone out of her pocket and said, ÐHere, let me record this.Ñ

10. As a resu lt of this incident, Principal Fernandez held

another CFR with Respondent on June 4, 2012. During the

conference, Respon dent chose to leave the meeting and walked out

of the p rincipalÓs office. An employee is expected to remain in

a CFR for the duration of the meeting. Principal Fernandez

issued Respondent another letter of reprimand on June 4, 2012,

concerning this incident and for gross insubordination , which

directed Respondent to: (1) strictly adhere to all School Board

rules and regulations, specif ically, School Board Policy 3210

and 3210.01; (2) cease and desist from engaging in any

unprofessional conduct while serving as an employee of the School

Board; (3) perform duties and responsibilities given to her by

Principal Fernandez; and (4) conduct h erself, both in her

employment and in the community, in a manner that will reflect

credit upon herself and the School Board. Principal Fernandez

informed Respondent that failure to comply with the directives

would result in further disciplinary action. B ecause Respondent

prematurely left the CFR, her UTD representative s signed the

reprimand on her behalf.

The 2012 - 2013 School Year

1 1 . On August 31, 2012, an Educational Excellence School

Advisory Committee (Ð EESAC Ñ) meeting was held in the media center

at Thomas Jefferson. EESAC is an advisory committee comprised of

parents, teachers, students, staff members , and business

partners. The committee typically meets once a month at the

school to review the school improvement plan and make decisions

on how to improve the school.

12. Respondent attended the meeting in her capacity as a

representative of the UTD. During the meeting, Respondent told

the chairperson that there was no quorum . Respondent then left

the meeting. As she exited the meeting, Resp ondent stated:

ÐThis is why weÓre an ETO school,Ñ and she referred to the group

as Ðfools.Ñ A few minutes later, Respondent returned to the

meeting, took the sign - out sheet with her without permission, and

then left the meeting. 1/

1 3 . On September 20, 2012, Principal Fernandez met with the

science department coach, Respondent, and two other science

teachers to discuss ideas on how to improve the school.

Principal Fernandez asked Respondent to share a document with the

other teachers that Responden t said she had . Respondent became

irate, refused Principal FernandezÓs request, and stated: ÐNo,

IÓm not giving it to them. They can go to their own CRISS

training like I did.Ñ Respondent proceeded to stand up and

threaten Principal Fernandez, stating: ÐDonÓt worry, youÓll get

yours.Ñ Respondent then stormed out of the meeting.

1 4 . On September 20, 2012, Respondent sent an e - mail to

MeShonika Green, another science teacher at Thomas Jefferson,

regarding ÐAddressing your concerns.Ñ In this e - mail, Re spondent

wrote :

M s. Green,

Some of the members of the faculty have come

to me to report that you were carrying on in

the hall, claiming that you were in fear for

your life because you thought I was going to

come out and shoot up the school. I just

wante d to put your fears to rest. Just

because I speak my mind and am willing to

stand up for what is right does not mean I

will turn to physical violence. That is not

me . . . I donÓt believe in physical

violence and have worked to promote that

ideal. But from a psychological perspective

it is the person that holds everything in

that one day snaps and loses it. You know

like tearing up a legal summons, throwing it

in the face of a process server and becoming

irate that they are arrested. I suppose that

pe rson could take it one step further and in

what you said if the authorities did not

intervene. But I only know what IÓve read in

textbooks, IÓve never experienced it.

But anyway I would appreciate if instead of

you spreading this around the staff and

fa culty where students could hear you that

you come and speak to me about any concerns

you have with me, or at least talk to a

therapist. Because your unsubstantiated

remarks could be considered slander and as I

am highly offended by your actions and they

a ffect me professionally. If this were to

happen again I would find it necessary to

follow up through appropriate channels.

Thank you in advance for understanding and

acting accordingly [ .]

15. On September 2 4 , 2012, Principal Fernandez met with

Respo ndent to discuss the School BoardÓs e - mail policy, and

RespondentÓs inappropriate use of e - mails. At that time,

Principal Fernandez provided Respondent with a memorandum

regarding the appropriate use of e - mails.

1 6 . On September 27, 2012, Ms. Gr een se nt Respondent an

e - mail regarding ÐAddressing your concerns , Ñ which states: ÐWe

are mature adults. You should not be listening to RUMORS or

hear - say, especially when you see me almost everyday. This could

be considered CYBER BULLYING. Thanks for your attention.Ñ

Shortly thereafter on September 27, 2012 , Respondent responded to

Ms. Green by e - mail as follows:

Ms. Green,

You are right chronologically we are two

mature adults. This is in no way cyber

bullying. This is me asking you to stop

engaging in inappropriate behavior that

slanders me, and me promising to take legal

action if you donÓt. So as a mature adult I

am asking you to please stop and warning you

of the consequences if you do not. Also

there is no reason to yell (all caps), and it

is n ot a rumor when three credible adults (as

well as a number of less credible people)

come to me at different times and state that

they witnessed you doing this. Here say is

when someone reports hearing that someone did

something but did not see it. And ye s I see

you every day, and any attempt to communicate

is met with negativity and usually ends in

your saying Ðwell you do what you want

because IÓm going to . . .Ñ I hope this

clears things up for you. Enjoy the rest of

your day.

1 7. On October 2, 2012 , Respondent sent an e - mail to

Mr. Yvetot Antoine, the science coach at Thomas Jefferson. As

the science coach, Mr. Antoine assists all of the science

teachers in implementing the science curriculum in their

classrooms. The e - mail states:

Mr. Antoine,

Please stop sending me all these e - mails with

attachments. I do not need my mailbox to go

over its limit. I know you are just trying

to do your job but as I already told you I

already have my plan in place along with

methods of assessment and analysis. I do not

need to be bombarded with elementary

solutions to a problem that you are only

exasperating. The problem at TJ is that no

one works together in the decision making

process, decision are made that further

divide the faculty and then they bring in

people with little experience to cram their

agenda down our throats. Most of us do what

we need to and we do not need fixing. The

fixing needs to start at the top and that is

beyond both of our pay grades. If you need

to send this stuff for your service log

please use attachment manager.

18 . Mr. Antoine was offended and disheartened by this

e - mail , because he did not believe that he was implementing

elementary solutions or exacerbating a problem. Mr. Antoine

forwarded the e - mail to Principal Ferna ndez.

19. On October 11, 2012, Principal Fernandez met with

Respondent to discuss the School BoardÓs e - mail policy, and

RespondentÓs inappropriate use of e - mails. At that time,

Principal Fernandez provided Respondent with another memorandum

regarding t he appropriate use of e - mails.

2 0 . On October 18, 2012, Mr. Antoine entered RespondentÓs

classroom to conduct an informal observation. As the students

entered the classroom, Mr. Antoine proceeded to the back of the

room. Respondent appeared ver y serious and disturbed by

Mr. AntoineÓs presence in the classroom. As the students settled

into their seats, Respondent asked the students to raise their

hands if they felt that Mr. AntoineÓs presence in the classroom

was disturbing. In response, some of the students raised their

hands.

2 1 . Shortly thereafter, Respondent asked the students again

to raise their hands if they felt Mr. AntoineÓs presence in the

classroom was disturbing. In response, most of the students

raised their hands.

2 2 . At this point, Respondent announced to the class that

Ðshe would not share her classroom in an oppressive environment

where she feels like her civil rights were being violated.Ñ By

this time, Mr. Antoine was sitting at a table in the back of the

classroom, and he had not said anything to Respondent.

2 3 . Respondent paced up and down the classroom and

instructed the students to write definitions for six vocabulary

words that were posted on the board. As she paced up and down

the classroom, Resp ondent pulle d out her cellphone and tried

unsuccessfully to call someone.

2 4 . Respo ndent then returned to her seat and announced to

the students that she has over 20 years of experience and that ÐI

was teaching when this guy [Mr. Antoine] was still in high

school.Ñ

2 5 . At this point, the only instruction Respondent had

given her students was to tell them to define six vocabulary

words.

2 6 . As the class period progressed, Respondent did not give

any further educational instruction to her students. Instead ,

Respond ent proceeded to the back of the classroom where

Mr. Antoine was sitting, pulled up a chair, and sat directly

across from him. Respondent looked directly at Mr. Antoine and

stated in front of the students : ÐIÓm going to stare at those

eyes that are obse rving me.Ñ

2 7 . After a while, Respondent got up, went back to her

desk, and was at her computer. Toward the end of the class

period, Respondent handed a stack of papers to one of her

students. The student walked to the back of the classroom and

gave t he stack of papers to Mr. Antoine. The papers were titled ,

Ñ Responsibilities of the Coach - Instructional Coach .Ñ 2/

2 8 . As a result of these incidents from August through

October 2012, Principal Fernandez held another CFR with

Respondent at some point in O ctober 2012.

29 . On November 7, 2012, Respondent encountered Eulalee

Sleight, another teacher at Thomas Jefferson. On that date,

Ms. Sleight was meeting with a student when Respondent commented,

in front of the student, ÐDo you know IÓm not going to be your

teacher anymore? Ñ ÐB ecause IÓm making sure they follow rules.

They donÓt like to follow rules at this school.Ñ

3 0 . At the end of this same school day, Respondent walked

up to Ms. Sleight and took a picture of her and a student who was

Ms. Sleight Ós assistant. In the presence of the other student,

Respondent stated: ÐThis is to show the illegal things thatÓs

happening at the school.Ñ 3 /

3 1 . On November 8, 2012, Responden t encountered Thomas

Jefferson School C ounselor Luis Chiles at Mr. ChilesÓ s o ffice.

On this occasion, Mr. Chiles was in a me eting with an ESOL

(English speakers of other languages) teacher, conducting a

review of students. Respondent had no business being in the

meeting. Nevertheless, Respondent opened the door to

Mr. ChilesÓ s office and stepped inside Mr. ChilesÓ s office.

Respondent was agitated, very upset, and told Mr. Chile s that she

hoped he was happy that she was going to lose her job.

Mr. Chiles was dumbfounded and did not respond to RespondentÓs

comment. Respondent t hen exited the office.

3 2 . As a result of all the foregoing incidents, Principal

Fernandez recommended to the School Board that RespondentÓs

employment be terminated. Thereafter, the School Board

recommended that RespondentÓs employment be suspended pend ing

dismissal.

33 . The evidence at hearing failed to show that

RespondentÓs conduct on June 4, 2012, constitutes misconduct in

office, gross insubordination, or a violation of applicable

School Board policies. The School Board merely showed that

Respon dent chose to leave the CFR with Principal Fernandez, and

that she was expected to stay for the duration of the meeting.

RespondentÓs conduct may have been inappropriate , but the School

Board failed to show that the conduct violated School Board

policies, and was Ðso serious as to impair the [RespondentÓs]

effectiveness in the school system ,Ñ so as to constitute

misconduct in office. Furthermore, the School Board failed to

show that RespondentÓs conduct involved Ða constant or continuing

intentional refus al to obey a direct order, reasonable in nature,

and given by and with proper authority,Ñ so as to rise to the

level of gross insubordination.

3 4 . The evidence at hearing failed to show that

RespondentÓs conduct at the EESAC meeting on August 31, 2012,

constitutes misconduct in office , gross insubordination, or a

violat ion of applicable Sc hool Board p olicies. Respondent

attended the meeting in her capacity as a representative of UTD.

Although Respondent may have been rude during the meeting, given

the context in which this incident occu rred (this was an EESAC

meeting -- not a classroom situation involving students), the

School Board failed to establish that Respondent engaged in

conduct which rose to the level of misconduct in office, gross

insubordinatio n, or a violation of School Board policies.

3 5 . The evidence at hearing showed that Respondent is

guilty of misconduct in office in violation of rule 6A - 5.056(2) ,

and that she violated School Board P olicies 3210 and 3210.01 .

Respondent engaged in condu ct which is unseemly in the workplace

and reduces a teacherÓs or her colleaguesÓ ability to effectively

perform duties w hen she met with Principal Fernandez, the science

department coach, and two other science teachers on September 20,

2012, to discuss ide as on how to improve the school. When asked

by Principal Fernandez to share a document with the other

teachers, Respondent became irate and refused to do so.

Respondent also viola ted this rule and School Board P olicies

3210, 3210.01, and 3380, when she s tood up during the meeting and

threatened Principal Fernandez, stating: ÐDonÓt worry, youÓll

get yours,Ñ and stormed out of the meeting. Such conduct created

a hostile, intimidating, abusive, offensive, or oppressive

environment , and involved threatening behavior consisting of

words that intimidated Principal Fernandez .

36 . The evidence at hearing failed to show that

Respondent Ós conduct on September 20, 2012, constitutes gross

insubordination in violation of rule 6A - 5.056(4) by intentionally

refusing t o obey a direct order, reasonable in nature, and given

by and with proper authority .

37 . The evidence at hearing failed to show that

RespondentÓs e - mails to Ms. Green on September 20 and 27, 2012,

and RespondentÓs e - mail to Mr. Antoine on October 2, 2012,

constitute misconduct in office , gross insubordination, or a

violation of applicable School Board policies. The School Board

failed to present its e - mail policy at the hearing. Given the

context and nature of the emails (between adults and not

involving students), and the fact that the School Board failed to

present its e - mail policy at the hearing, the School Board failed

to meet its burden to establish that the e - mails rose to the

level of misconduct in office, gross insubordination, or

constitute a vi olatio n of applicable School Board p olicies.

38 . The evidence at hearing show ed that Respondent is

guilty of misconduct in office in violation of rule 6A - 5.056(2),

and that she violated rules 6 B - 1.006 (3)(a), (f), (5)(d), and

School Board P olic ies 3210 and 3 210.01 , by engaging in conduct

which is unseemly in the workplace and disruptive to the

studentsÓ learning environment; fail ed to make reasonable effort

to protect students from conditions harmful to learning ; violat ed

the studentsÓ legal right to an education ; engag ed in behavior

that reduces her ability or her colleaguesÓ ability to

effectively perform duties or the orderly processes of education ;

and creat ed a hostile, intimidating, abusive, offensive, or

oppressive w ork environment .

39 . Responde nt violated th ese rule s and polic ies when she:

1) ask ed students in the classroom on October 18, 2012, if they

felt that Mr. AntoineÓs presence in the classroom was disturbing,

they should raise their hands; 2) announc ed to the students in

the classroom t hat Ðshe would not share her classroom in an

oppressive environment where she feels like her civil rights were

being violated Ñ ; 3) pac ed up and down the classroom and plac ed a

personal telephone call during class while only instructing the

students to writ e definitions for six vocabulary words that were

posted on the board; 4) announc ed to her students that she has

over 20 years of experience, and that ÐI was teaching when this

guy [Mr. Antoine] was still in high school Ñ ; 5) proceed ed to the

back of the cla ssroom , sat across from Mr. Antoine , and announced

to the class: ÐIÓm going to stare at those eyes that are

observing meÑ; and 6) handed a stack of papers to one of her

students titled, ÐResponsibilities of the Coach Î Instructional

Coach,Ñ and had the stud ent hand the stack of documents to

Mr. Antoine.

4 0 . RespondentÓs conduct on October 1 8 , 2012, sought to

advance her personal agenda , was not cond ucive to her studentsÓ

learning, and was harmful to the studentsÓ learning. Respondent

effectively used t he students in her classroom as pawns in her

personal battle against the administration and her colleagues .

Rather than focusing on Mr. AntoineÓs presence and her personal

battle, Respondent should have focused on the students and

teaching the students. RespondentÓs conduct on October 1 8 , 2012,

has no place in a middle school science classroom.

4 1 . The evidence failed to show that RespondentÓs conduct

on October 18, 2012, rose to the level of gross insubordination

in violation of rule 6A - 5.056(4), in t hat the conduct did not

involve the intentional refusal to obey a direct order,

reasonable in nature, and given by and with proper authority.

4 2 . The evidence at hearing showed that Respondent is

guilty of misconduct in office in violation of rule 6A - 5. 056(2),

and that she violated rules 6 B - 1.006(3)(a), (f), and (5)(d), and

School Board P olicies 3210 and 3210.01, by engaging in conduct

which is unseemly in the workplace and disruptive to the

studentsÓ learning environment; fail ed to make reasonable effor t

to protect students from conditions harmful to learning; violat ed

the studentsÓ legal right to an education; engag ed in behavior

that reduces her ability or her colleaguesÓ ability to

effectively perform duties or the orderly processes of education ;

and creat ed a hostile, intimidating, abusive, offensive, or

oppressive work environment. Respondent violated these rules and

policies when she : 1) interrupted a meeting between Ms. Sleight

and another student on November 7, 2012 ; 2 ) told the student ÐDo

you know IÓm not going to be your teacher anymore?Ñ Ð B ecause IÓm

making sure they follow rules. They donÓt like to follow rules

at this school Ñ ; and 3) took a picture of a student who was Ms.

SleightÓs assistant and stated: ÐThis is to show the illegal

thing s thatÓs happening at the school.Ñ

4 3 . Through her conduct on November 7, 2012, Respondent

again sought to advance her pe rsonal agenda, failed to engage in

conduct cond ucive to the studentÓs learning, and engaged in

conduct harmful to the studentsÓ lea rning. Respondent

effectively used the student s as her pawn s in her personal battle

against the administration and her colleagues. Raising a

legitimate complaint through the proper channels is one thing.

However, a middle school teacher cannot use stude nt s as her pawns

and air her personal battles to students in an effort to advance

her personal agenda . 4/

4 4 . The evidence failed to show that RespondentÓs conduct

on November 7, 2012, rose to the level of gross insubordination

in violation of rule 6A - 5. 056(4), in that the conduct did not

involve the intentional refusal to obey a direct order,

reasonable in nature, and given by and with proper authority.

4 5 . The evidence at hearing failed to show that

RespondentÓs encounter with Mr. Chiles on November 8, 2012,

constitutes misconduct in office , gross insubordination, or a

violat ion of applicable School Board p olicies. The evidence

presented at hearing did not establish that Respondent knew

Mr. Chiles was in a meeting when she opened the door. It would

have been polite for Respondent to knock first. Nevertheless,

merely op ening a door that is not locked, and telling a colleague

that she Ðhoped he was happy that she was going to lose her job,Ñ

and then turning around and leaving, does not rise to the le vel

of misconduct in office , gross insubordination, or a violation of

School Board p olicies .

CONCLUSIONS OF LAW

46 . DOAH has jurisdiction of the subject matter of and

the parties to this proceeding pursuant to sections 120.569

and 120.57(1), Florida S tatutes.

47 . Respondent is an instructional employee, as that term

is defined in section 1012.01(2), Florida Statutes (2012) .

Petitioner has the authority to suspend and terminate

instructional employees pursuant to sections 1012.22(1)(f),

1 012.33(1 )(a), and 1012.33(6)(a) .

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

the evidence, that Respondent committed the violations alleged in

the Corrected Notice of Specific Charges, and that such

violations constitute Ðjust causeÑ for dismissa l.

§ 1012.33(1)(a) and (6), Fla. Stat.; Mitchell v. Sch. Bd. , 972

So. 2d 900, 901 (Fla. 3d DCA 2007); Gabriele v. Sch. Bd. of

Manatee Cnty . , 114 So. 3d 477, 480 (Fla. 2d DCA 2013).

49 . The preponderance of the evidence standard requires

proof by Ðthe gr eater weight of the evidenceÑ or evidence that

Ðmore likely than notÑ tends to prove a certain proposition.

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

preponderance of the evidence standard is less stringent than the

standard of clear and c onvincing evidence applicable to loss of a

license or certification. Cisneros v. Sch. Bd. of Miami - Dade

Cnty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

5 0 . Whether Respondent committed the charged offenses is a

question of ultimate fact to be determine d 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); McMillian v. Nassau Cnty. Sch. Bd. ,

629 So. 2d 226 , 228 (Fla. 1st DCA 1993 ).

5 1 . 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 Ðjust cause.Ñ

§ 1012.33(1)(a) and (6), Fla. Stat. ÐJust causeÑ is defined in

section 101 2.33(1)(a) to include Ðmisconduct in officeÑ and

Ðgross insubordination.Ñ

5 2 . Section 1001.02(1), Florida Statutes, grants the State

Board of Education authority to adopt rules pursuant to

s ections 120.536(1) and 120.54 to implement provisions of law

c onferring duties upon it.

5 3 . Consistent with this rulemaking authority, the State

Board of Education has defined Ðmisconduct in officeÑ in

r ule 6A - 5.056(2), effective July 8, 2012, which provides:

( 2 ) ÐMisconduct in OfficeÑ means one or more

of th e following:

( 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 studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

5 4 . RespondentÓs conduct alleged to constitute misconduct

in office that took place prior to July 8, 2012, is governed by

the version of rule 6A - 5.056 (3) in effect at that time. That

rule defines Ðmisconduct in officeÑ as:

(3) Misconduct in office is defined as a

violation of the Code of Ethics 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 individualÓs effec tiveness in the

school system.

5 5 . Rule 6B - 1.001, titled Ð Code of Ethics of the Education

Profession in Florida,Ñ provides:

( 1) The educator values the worth and

dignity of every person, the pursuit of

truth, de votion 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 guarantee of equal

opportunity for all .

(2) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

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 oneÓs

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. [ 5 / ]

5 6 . While rule 6A - 5.056 (2)(a) provides that violation of

the Code of Ethics rule constitutes Ðmisconduct,Ñ it has been

frequently noted that the precepts set forth in the above - cited

ÐCode of EthicsÑ are Ðso general and so obviously aspirational as

to be of little practical use in defining normative behavior.Ñ

Walton C nty . Sch. Bd. v. Hurley , Case No. 14 - 0429 (Fla. DOAH

May 14, 2014 ) ; Miami - Dade C nty . Sch. Bd. v. Anderson , Ca se No.

13 - 2414 (Fla. DOAH Jan. 14, 2014) .

5 7 . Rule 6A - 5.056(2)(b) incorporates by reference rule 6B -

1.006, which is titled: Ð Pr inciples of Pr ofessional Conduct for

the Education Profession in Florida. Ñ Rule 6 B - 1.006 provides , in

pertinent part:

(3) Obligation to the studen t requires that

the individual:

(a) Shall make reasonable effort to prote ct

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety. [ 6 / ]

58 . School Board Policy 3210, Standards of Ethical Conduct,

effective July 1, 2011, is a ÐruleÑ within the meaning of

rule 6A - 5.056(2)(c). School Board Policy 3210 provides, in

pertinent 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 in structional staff member shall:

* * *

3. make a reasonable effort to protect the

student from conditions harmful to learning

and/or to the studentÓs mental and/or

physical health and/or safety ;

* * *

8. not intentionally violate or deny a

studentÓs legal rights;

* * *

10. not exploit a rel ationship with a

student for personal gain or advantage ;

* * *

21. not use abusive and/o r profane language

or display uns eemly conduct in the wor kplace.

22. not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individualÓs performance

of professional or work responsibilities or

with the order processes of education or

which creates a hostile, intimidating,

abus ive, offensive, or oppressive

environment; and, further, shall make

reasonable efforts to assure that each

individual is protected from suc h harassment

or discrimination.

59 . School Board Policy 3210.01, Code of Ethics, effective

July 1, 2011, is a ÐruleÑ within the meaning of rule 6A -

5.056(2)(c). School Board Policy 3210.01 provides, in pertinent

part:

Fundamental Principles

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

B. Cooperati on Î - Working together toward

goals as basic as human survival in an

increasingly interdependent world.

C. Fairness Î - Treating people impartially,

not playing favorites, being open - minded, and

maintaining an objective attitude toward

those whose actions an d ideas are different

from our own.

D. Honesty Î - Dealing truthfully with people,

being sincere, not deceiving them nor

stealing from them, not cheating nor lying.

E. Integrity Î - Standing up for their beliefs

about what is right and what is wrong and

re sisting social pressure to do wrong.

F. Kindness Î - Being sympathetic, helpful,

compassionate, benevolent, agreeable, and

gentle toward people and other living things.

G. Pursuit of Excellence Î - Doing their best

with their talents, striving toward a go al,

and not giving up.

H. Respect Î - Showing regard for the worth and

dignity of someone or something, being

courteous and polite, and judging people on

their merits. It takes three (3) major

forms: respect for oneself, respect for

other people, and res pect for all forms of

life and the environment .

I. Responsibility Î - Thinking before acting

and being accountable for their actions,

paying attention to others and responding to

their needs. Responsibility emphasizes our

positive obligations to care for each other.

Ea ch 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 dutie s core

guiding principles.

B. To obey local, State, and national laws,

codes and r egulations.

C. To support the principles of due process

to protect the civil and h uman 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/her actions.

F. To avoid conflicts 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

performance of job duties.

Conduct Regarding S tudents

Each employee:

A. s hall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety;

* * *

E . s hall not intentionally expose a student

to unnec essary embarrassment or

disparagement;

* * *

H. s hall not exploit a relationship with a

student for personal gain or advantage.

60 . School Board Policy 3380, Threatening Behavior Towards

Staff, effective July 1, 2011, provides that:

Emp loyees have a right to work in a safe

environment. Violence o r the threat of

violence by or against students and e mployees

will not be tolerated.

Threatening behavior consisting of any words

or deeds that intimidates a staff member or

cause anxiety conce rning physical well - being

is strictly forbidden. Any student, parent,

visitor, staff member, volunteer, or agent of

the Board who is found to have threatened a

member of staff will be subject to discipline

or reported to the appr opriate law

enforcement ag ency.

6 1 . Consistent with its rulemaking authority, the State

Board of Education has defined Ðgross insubordinationÑ in

rule 6A - 5.056 (4), effective July 8, 2012, which provides:

(4) ÐGross insubordinationÑ means 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.

6 2 . RespondentÓs conduct alleged to constitute gross

insubordination that too k place prior to July 8, 2012, is

governed by the version of rule 6A - 5.056 (4) in effect at that

time. That rule defines Ðgross insubordinationÑ as:

(4) Gross insubordination or willful neglect

of duties is defined as a constant or

continuing intentiona l refusal to obey a

direct order, reasonable in nature, and given

by and with proper authority.

6 3 . Turning to the present case, t he School Board argues

that Respondent is guilty of gross insubordination for failing to

comply with the three written reprimands issued by Principal

Fernandez, on February 8, 2011, November 29, 2011, and June 4,

2012, which direct Respondent to act professionally and follow

School Board p olicies. T he written directives are general in

nature , d irecting Respondent to compl y with all or various rules

and policies . The reprimands are not tantamount to a direct

order, reasonable in nature, and given with proper authority. To

hold otherwise would permit a Principal to direct all teachers to

follow all rules and policies, and upon a violation of any rule

or policy, conclude that the teacher was grossly insubordinate.

6 4 . The School Board failed to prove by a preponderance of

the evidence that, with regard to the June 4, 2012, incident,

Respondent committed misconduct in o ffice, was grossly

insubordinate, or violated any School Board policies.

6 5 . The School Board failed to prove by a preponderance of

the evidence that, with regard to the August 31, 2012, incident,

Respondent committed misconduct in office, was gro ssly

insubordinate, or violated any School Board policies.

6 6 . The School Board proved by a preponderance of the

evidence that, with regard to the September 20, 2012, incident

involving the meeting between Principal Fernandez, Respondent,

the scien ce department coach, and two other science teachers,

Responde nt is guilty of misconduct in office, in that she engaged

in conduct which is unseemly in the workplace; reduces a

teacherÓs or her colleaguesÓ ability to effectively perform

duties , created a ho stile, intimidating, abusive, offensive, or

oppressive environment, and involved threatening behavior

consisting of words that intimidated Principal Fernandez .

6 7 . The School Board failed to prove by a preponderance of

the evidence that, with regard to the September 20, 2012,

incident involving the meeting between Principal Fernandez, the

science department coach, and two other science teachers,

R espondent was grossly insubordinate by refusing to obey a direct

order, reasonable in nature, and given b y and with proper

authority.

68 . The School Board failed to prove by a preponderance of

the evidence that, with regard to RespondentÓs e - mails to

Ms. Green on September 20 and 27, 2012, and RespondentÓs e - mail

to Mr. Antoine on October 2, 2012, tha t Respondent committed

misconduct in office, was grossly insubordinate, or violated any

School Board policies.

69 . The School Board proved by a preponderance of the

evidence that, with regard to the October 18, 2012, incident,

Respondent is guilt y of misconduct in office, in that s he engaged

in conduct unseemly in the workplace; disruptive to studentsÓ

learning environment; failed to make reasonable effort to protect

students from conditions harmful to learning; violated the

studentsÓ legal right to an education; engaged in behavior that

reduced her ability or her colleaguesÓ ability to effectively

perform duties or the orderly processes of education ; and created

a hostile, intimidating, abusive, offensive, or oppressive work

environment.

7 0 . The School Board failed to prove by a preponderance of

the evidence that, with regard to the October 18, 2012, incident,

Respondent is guilty of gross insubordination, in that the

conduct did not involve the intentional refusal to obey a direct

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

authority.

7 1 . The School Board proved by a preponderance of the

evidence that, with regard to the November 7, 2012, incident,

Respondent is guilty of misconduct in office, in that s he engaged

in conduct which is unseemly in the workplace; disruptive to

studentsÓ learning environment; failed to make reasonable effort

to protect students from conditions harmful to learning; violated

the studentsÓ legal right to an education; engaged in behavior

tha t reduced her ability or her colleaguesÓ ability to

effectively perform duties or the orderly processes of education;

and created a hostile, intimidating, abusive, offensive, or

oppressive work environment.

7 2 . The School Board failed to prove by a preponderance of

the evidence that, with regard to the November 7, 2012, incident,

Respondent is guilty of gross insubordination, in that the

conduct did not involve the intentional refusal to obey a direct

order, reasonable in nature, and given by and wi th proper

authority.

7 3 . The School Board failed to prove by a preponderance of

the evidence that with regard to the November 8, 2012, incident,

Respondent committed misconduct, was grossly insubordinate, or

viol ated any School Board policies.

Penalty

7 4 . Instructional employees who have engaged in misconduct

in office and gross insubordination may be suspended without pay

and dismissed. §§ 1012.33(4) and 1012.33(6)(a), Fla . Stat.;

Mitchell v. Sch. Bd. ,972 S o . 2d 900 (F la. 3d DCA 2007).

7 5 . The facts show that Respondent engaged in misconduct in

the office , and therefore Ðjust causeÑ exists authorizing

RespondentÓs termination .

7 6 . The facts show that Respondent disregarded the learning

of middle school students and used th em as pawns to fight her

personal battle against Principal Fernandez and her colleagues.

Respondent intruded upon the rights of students, the principal,

and her colleagues through her conduct. RespondentÓs many years

of teaching experience should have le d her to know better, yet it

is apparent that Respondent thrives on confrontation.

7 7 . Respondent crossed - the - line when she involved the

middle school students in her personal agenda, and she did not in

any way acknowledge her actions or show any r emorse at the

hearing. Considering the seriousness and nature of the offenses,

the entire record, and the fact of prior discipline, 7/ termination

is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMEN DED that the Miami - Dade County School Board

enter a final order upholding the suspension and terminating

RespondentÓs employment.

DONE AND ENTERED this 29 th day of J uly , 2014 , in

Tallahassee, Leon County, Florida.

S

DAR REN A. SCHWARTZ

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

Filed with the Clerk of the

Division of Administrative Hearings

this 2 9 t h day of J uly , 2014 .

ENDNOTES

1/ ETO means education transformation office.

2/ Respondent denies that the incident on October 18, 2012,

occurred. The undersigned credits Mr. AntoineÓs testimony

regarding the events of October 18, 2012, as found by the

undersigned, and rejects the testimony of Respondent as

unpersuasive and not credible.

3/ The undersigned credits Ms. SleightsÓs testimony regarding the

events of November 7, 2012, as found by the undersigned, and

rejec ts the testimony of Respondent as unpersuasive and not

credible. However, t he School Board failed to present persuasive

evidence in support of its contention that on November 7, 2012,

Respondent was seen by Ms. Sleight turning off switches in the

emergenc y panel box while angrily stating, ÐLet them figure out

whatÓs wrong , Ñ and that Respondent caused the power to go out.

4 / The undersigned rejects RespondentÓs contention that her

suspension and termination were retaliatory for her complaints

and uni on activities. Respondent failed to present persuasive

evidence to support her theory.

5/ Also, on January 11, 2013, rule 6B - 1.001 was transferred to

rule 6A - 10.080. The ruleÓs text was not am ended.

6 / On January 11, 2013, rule 6B - 1.006 was transferr ed to rule 6A -

10.081. The ruleÓs te x t was not amended . Rule 6B - 1.006 governs

RespondentÓs conduct alleged to have occurred before January 11,

2013.

7/ The School BoardÓs allegations regarding the January 2011,

November 2011, and May 2012 alleged incide nts relate to the issue

of progressive discipline. Respondent was reprimanded for each

of these alleged incidents.

COPIES FURNISHED:

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Flor ida 33132

Pam Stewart , Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines S treet

Tallahassee, Florida 32399 - 0400

Heather Ward, Esquire

Sara Marken, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

Jana Lantz

Post Office Box 613

Meadville, Pennsylvania 16335

NOTICE OF RIGH T 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.