13-002414TTS Miami-Dade County School Board vs. Shavonne Anderson Status: Closed Recommended Order on Monday, December 30, 2013.

Summary: Petitioner established by a preponderance of the evidence that just cause existed to suspend or terminate Respondent's employment for gross insubordination. Recommend 180-day suspension without pay and probation for two years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 2414TTS

SHAVONNE ANDERSON,

Respondent.

/

RECOMMENDED ORDER

This case came before Admi nistrative Law Judge Todd P.

Resavage for final hearing by video teleconference on

September 16, 2013, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner : Christina Rivera, Esquire

Heather Ward, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 430

Miami, Florida 33132

For Respondent: Shavonne Anderson, Pro se

2868 Northwest 197th Terrace

Miami, Florida 33056

STATEMENT OF THE ISSUE

Whether Respondent's em ployment as a teacher by the Miami -

Dade County School Board should be terminated for the reasons

specified in the letter of notification of suspension and

dismissal dated June 20, 2013, and the Notice of Specific Charges

filed on August 28, 2013.

PRELIMINA RY STATEMENT

On June 19, 2013, at its scheduled meeting, Petitioner,

Miami - Dade School Board, took action to suspend Respondent,

Shavonne Anderson, without pay and initiate proceedings to

terminate her emp loyment. Respondent was notified of same via

corr espondence dated June 20, 2013, and of her availability to

challenge the Board ' s action.

Respondent timely requested a formal administrative hearing,

and, on June 26, 2013, Petitioner referred the matter to the

Division of Administrative Hearings ( " DOAH " ), where it was

assigned to the undersigned.

The final hearing initially was set for September 6, 2013.

On August 7, 2013, the parties file d a Joint Motion to Continue

and Reschedule Final Hearing. The motion was granted and the

cause was re - schedule d for final hearing on September 16, 2013.

On August 28, 2013, Petitioner filed its Notice of Specific

Charges allegin g Respondent should be suspended without pay and

dism issed due to her misconduct in office, gross insubordination,

and incompetency.

On June 9, 2013, t he parties filed a Joint Pre - hearing

Stipulation and stipulated to certain facts contained in Section

E of the Joint Pre - hearing Stipulation. To the extent relevant,

those facts have been incorporated in this Recommended Order.

The final hearing went forward as planned. Petitioner

presented the testimony of Dr. Carmen Jones - Ca rey, Jimmie L.

Brown, Ed.D., Sh a w nda Green - McKenzie, and Dorothy De Posada and

Petitioner ' s Exhibits 1 - 10 , 12, 14 - 15, and 17 - 25 were admitted.

Respondent, who appea red pro se, testified on her own behalf and

presented the testimony of Dr. Carmen Jones - Carey and Shawnda

Green - McKenzie.

The final hearing Transcript was filed on October 31, 2013.

Petitioner and Respondent timely filed proposed recommended

orders, whi ch were considered in prep aring this Recommended

Order. Unless otherwise indicated, all rule and statutory

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

alleged violation.

FINDINGS OF FACT

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schools within Miami -

Dade County, Florida.

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

employed as a social studies teacher at Horace Mann Middle School

( " Horace Mann " ), a public school in Miami - Dade County , Florida .

3. At all times material, Respondent ' s employment was

governed, in part, by a collective bargaining agreement between

Miami - Dade County Public Schools and the United Teachers of Dade

( " UTD Contract " ).

4. Dr. Jones - Carey, the p rincipal at Horace Mann , was

authorized to issue directives to her employees , including

Respondent .

5. Dorothy De Posada, the assistant principal at Horace

Mann , w as authorized to issue directives to her employees,

including Respondent.

6. Petitione r alleges, in its Notice of Specific Charges,

an array of factual scenarios spanning several years that, when

considered individually or in concert, supp ly just cause for

Respondent ' s termination. Below, t he undersigned has endeavored

to address each seri atim.

2010 - 2011 School Year :

7. Dr. Jones - Carey issued Respondent a letter of reprimand

o n May 23, 2011, concerning an alleged incident that occurred on

April 27, 2011 . On May 25, 2011, Dr. Jones - Carey held a

Conference for the Record ( " CFR " ) regarding this alleged

incident. 1 / Respondent was directed to strictly adhere to all

Miami - Dade County School Board ( " MDCSB " ) rules and regulations,

specifically, r ules 6Gx13 - 4A - 1.21 and 6Gx13 - 4A - 1.213.

2011 - 2012 School Year :

8. On April 13, 2012, subsequent to the investigation of an

alleged incident that occurred on February 27 , 2012, a CFR was

held. Respondent was directed to adhere to all M DCSB r ules and

regulations, specifically 3210, Standards of Ethical Conduct, and

3210.01, Code of Ethics. Respondent w as further directed to

refrain from contacting any of the parties in the incident,

refrain from using physical discipline, and " to conduct [herself]

both in [her] employment and in the community in a manner that

will reflect credit upon [herself] and M - DCP S. " Respondent

agreed to a 17 - day suspension without pay regarding the alleged

incident.

2012 - 2013 School Year :

A. October 24, 2012

9. On November 16, 2012, s ubsequent to an investigation of

an alleged incident that occurred on October 24, 2012, a CFR was

held. Respondent was directed to adhere to all M DCSB policies,

specifically 3210, Standards of Ethical Conduct, and 3210.01,

Code of Ethics; refrain from contacting any partie s involved in

the investigation; and " to conduct [herself] both in [her]

em ployment and in the community in a manner that will reflect

credit upon [herself] and M - DCPS. " Additionally, o n November 28,

2012, Respondent was issued a letter of reprimand concerning the

October 24, 2012 , incident.

B. November 5, 2012

10. On Novem ber 5, 2012, Dr. Jones - Carey observed several

male students standing outside of Respondent ' s class room during

the class period. While Petitioner contends said students were

told to remain outside of the classroom at Respondent ' s

instruction due to body od or, Petitioner failed to present

sufficient evidence to support such a finding. 2 /

C. November 26, 2012

11. Shawnda Green - McKenzie is the H orace Mann social

studies department chair and a social studies teacher.

Ms. McKenzie explained that, on or aro und November 26, 2012, it

was necessary for several homeroom classes to be " dissolved. "

The students in the dissolved homeroom classroom were to be added

to the roster of other homeroom classes. Ms. McKenzie further

explained that the homeroom teachers, such as Respondent, were

unaware of the number of additional homeroom students they would

acquire until the day the additional students arrived.

12. On November 26, 2012, Ms. Green - McKenzie observed that

a substantial number of the newly acquired studen ts did not have

desks or chairs available for their use in Respondent ' s homeroom

class. S he further observed some of the children sitting on the

floor. Petitioner failed to present any evidence concerning when

the new students presented themselves to Res pondent ' s homeroom or

the duration said students did not have available desks or

chairs.

13. While Ms. Green - McKenzie agreed that children sitting

on the floor would " be kind of a safety concern if s omeone were

walking around in the classroom, " she fur ther opined that

Respondent ' s classroom was " definitely too small to tak e any

additional desks " and adding additional chairs would make it

" tight. "

D. February 8, 2013

14. On March 21, 2013, subsequent to an investigation of an

alleged incident that oc curred on February 8, 2013, a CFR was

held. Respondent was directed to adhere to MDCSB p olicies and

conduct herself in her employment and community in a manner that

would reflect credit upon herself and the teaching profession.

On April 9, 2013, Responde nt issued a letter of reprimand

concerning the alleged incident which likewise directed her to

adhere to MDCSB p olicies and conduct herself in her employment

and community in a manner that would reflect credit to herself

and the teaching profession.

E . February 20, March 7, and April 1, 2013

15. Dr. Jones - Carey testified that, on those occasions when

a teacher is absent and a substitute teacher is unavailable, the

students are typically " split " among classrooms within the same

department. Teachers ar e expected to cooperate and receive the

" split - list " students.

16. Prior to February 9, 2013, Respondent was accommodating

and amenable to accepting students on the " split - list. " On

February 20, March 7, and April 7, 2013, however,

Ms. Green - McKenzie was informed that Respondent was unable to

receive , or uncomfortable in receiving, any additional students.

Respondent ' s refusal to accept the split - list students was

premised upon her concern that accepting students, who may

potentially have behavioral p roblems, may incite further problems

between herself and the Horace Mann administration.

17. After the second occasion (March 7, 2013),

Ms. McKenzie - Green simply stopped placing Respondent ' s name on

the split - lists. On each of the above - referenced occ asions ,

Ms. McKenzie Green accepted t he Respondent ' s split - list students

into her classroom. Ms. McKenzie - Green explained that her

classroom is a " double " that alway s has additional space and

seating and can accommodate upwards of 60 students.

18. Dr. Jones - Cary credibly testified that Respondent ' s

u nwillingness to accept the split - list children created a

disruption in the " flow of instruction " and was disruptive to the

operation of the school.

F . March 1 and 5, 2013

19. On March 1 and March 5, 201 3, Ms. De Posada observed

Respondent, during class, seated in a chair in the doorway of her

classroom with her feet up on the doorframe. On both occasions,

Ms. De Posada directed Respondent to move inside the classroom;

however, she refused .

G . March 7 , 2013

20. On March 7, 2013, Ms. De Posada observed that

Respondent ' s classroom door was open. When Ms. De Posada

directed Respondent to close the door, Respondent refused. In

addition to Ms. De Posada ' s directive, Dr. Jones - Carey had

previously issued an email directive to all faculty and staff to

keep the classroom doors closed in an effort to p reserve the

newly - installed air - conditioning system.

H . March 12, 2013

21. On March 12, 2013, Ms. De Posada was present in the

main office with several pare nts, as well as clerical staff.

Respondent was also present in the main office for the purpose of

making photocopies. Due to the number and nature of individuals

present, coupled with a pending deadline on another

administrative matter, Ms. De Posada req uested Resp ondent to

leave the main off ice and offered clerical assistance in

providing Respondent the needed copies. Ms. De Posada credibly

testified that, in response to the request, Respondent complained

loudly and defiantly, and refused to leave the o ffice when

directed .

I . March 21, 2013

22. On March 21, 2013, Ms. De Posada presented to

Respondent ' s classroom to conduct an official observation . On

that occasion, she observed that , after the class bell had run g ,

Respondent ' s students remained outsid e and un supervised .

Ms. De Posada took it upon herself to usher the students inside

the classroom . R espondent arrived prior to the late bell a nd

took her s e at at her d esk. Ms. De Posada advised Respondent that

she was there to officially observe and re quested Respondent ' s

lesson plans.

23. Ms. De Posada credibly testified that Respondent

thereafter opened her desk drawer, t osse d her lesson plans to

Ms. De Posada without speaking, and slammed the desk drawer. 3 /

Respondent proceeded to call roll and, upon completion of same,

began reading the paper. Once finished her reading, Respondent

remained in her chair and, with the exception of reprimanding

three children, did not engage with the students. Respondent did

not engage in any conversation with Ms . De Posada throughout the

duration of the observation .

24. Respondent concedes that she did not interact with

Ms. De Posada during the observation because of her concern of

being falsely accused of irate or belligerent behavior.

J . April 3, 2013

2 5. On April 3, 2013, Horace Mann held a mandatory faculty

meeting to provide training for the Florida Comprehensive

Assessment Test ( " FCAT " ). Per the UTD Contract, teachers are

required to extend their workday for the purpose attending

faculty meetings; however, such meeting s cannot exceed one hour

and shall begin no later than ten minutes after students are

dismissed.

26. On this occasion, the faculty meeting was scheduled to

begin at 4:00 p.m., however, it began a few minutes later to

allow all teache rs to arrive. Respondent , believing the UTD

Contract allowed for her to leave at 5:00 p.m., left prior to the

meeting being formally dismissed and without prior approval , at

approximately 5:00 p.m. When Dr. Carey - Jones called out to

Respondent, she conti nued to walk away from the meeting.

27. Respondent was notified via a school - wide email that a

make - up session for the FCAT training would be conducted at

8:20 a.m. Respondent perceiv ed the make - up session was voluntary

because it was scheduled prior t o 8:30 (the time she believes she

is required to work) and conflicted with a FCAT practice run also

scheduled for that morning. Respondent did not seek

clarification as to where she was to report. Accordingly,

Respondent did not present to the training, but rather, went to

the testing center.

28. It is undisputed that Respondent did not complete the

requisite training, and, therefore, was unable to proctor the

FCAT exam. As a result, other teachers were assigned to cover

Respondent ' s duties or respons ibilities.

K. April 24 and May 6, 2013

29. On April 24, 2013, a CFR was held and Respondent was

directed to adhere to School Board polices and conduct herself in

her employment and community in a manner that would reflect

credit upon herself and her pr ofession.

30. On May 6, 2013, following Dr. Jones - Carey ' s

recommendation that Respondent ' s employment be terminated, the

Office of Professional Standards ( " OPS " ) held a final CFR.

Thereafter, OPS recommended that Respondent ' s employment be

suspended pen di n g dismissal.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

sections 1012.33(6), 120.569, and 120.57(1), Florida Statutes.

Pursuant to section 120.65(11), Re spondent has contracted with

DOAH to conduct these hearings.

32. Petitioner seeks to terminate Respondent ' s employment.

In order to do so, Petitioner must prove by a preponderance of

the evidence that Respondent committed the violations as alleged

in t he Notice of Specific Charges. McNeill v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. Of

Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

33. The preponderance of the evidence standard requires

proof by " the greate r weight of the evidence " or evidence that

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

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

34. Any member of the instructional staff in a district

school system may be suspended or dismissed at any time during

the term of his or her employment contract for just cause, as

provided in section 1012.33(1)(a). § 1012.33(6)(a), Fla. Stat.

35. The term " just cause " :

[I]ncludes, but is not limited to, the

following instances, as defin ed by rule of

the State Board of Education: immorality,

misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or

being convicted or found guilty of, or

entering a plea to, regardless of

adjudication of guilty, any crime invol ving

moral turpitude.

§ 1012.33(1)(a), Fla. Stat.

36. In its Notice of Specific Charges, Petitioner avers

alternative grounds for terminating Respondent: " misconduct in

office " (Count I), " gross insubordination " (Count II), and

" incompetency " (Count II I). Whether Respondent is guilty of

these charges, which are discussed separately below, is a

question of ultimate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2d 387, 389 (Fla.

1st DCA 1995); Langston v. Jamer son , 653 So. 2d 489, 491 (Fla.

1st DCA 1995).

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

Board of Education authority to adopt rules pursuant to sections

120.536(1) and 120.54 to implement provisions of law conferring

duties upon it.

MI SCONDUCT IN OFFICE

38. As noted above, Petitioner contends that Respondent has

committed " misconduct in office . " Consistent with its rulemaking

authority, the State Board of Education has defined " misconduct

in office " to implement section 1012.33(1) vi a Florida

Administrative Code Rule 6A - 5.056.

39. Florida Administrative Code Rule 6A - 5.056(2) provides

as follows:

(2) " Misconduct in Office " means one or more

of the following:

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

Education Profession in Fl orida 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 that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

Fla. Admin. Code R. 6A - 5.056(2).

Code of Ethics :

40. Rule 6B - 1.001, renumbered without c hange as 6A - 10.080,

and entitled " Code of Ethics of the Education Profession in

Florida, " provides:

(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 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 educator ' s primary professional

concern will always be for the student and

for the deve lopment 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

colleag ues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

41. It has been repeatedly noted that the precepts set

forth in the above - cited " Code of Ethics " are " so general and so

obviously aspirational as to be of little practical use in

defining normative behavior. " Miami - Dade Cnty. Sch. Bd. v .

Regueira , Case No. 06 - 4752 (Fla. DOAH Apr. 11, 2007); Miami - Dade

Cnty. Sch. Bd. v . Brenes , Case No. 06 - 1758 (Fla. DOAH Feb. 27,

2007; Miami - Dade Cnty. Sch. Bd. Apr. 25, 2007); Miami - Dade Cnty.

Sch. Bd. v . Diaz - Almarez , Case No. 12 - 3630 (Fla. DOAH July 30,

2013). Nevertheless, a s currently drafted, r ule 6 A - 5.056(2)(a),

by its express terms, clearly provides that a violatio n of any of

these laudable c oncepts, in isolation , is sufficient to e stablish

misconduct in office, and thus just cause for suspension or

termination.

42. Turning to the instant case, t he evidence is

insufficient to establish that Respo ndent d id n ot va lue the worth

and dignity of every person, the pursuit of truth, devotion to

excellence, acquisition of knowledge, and the nurture of

democratic citizenship. Thus, Petitioner failed to prove that

Respondent violated the Code of Ethics set forth in section 6A -

10.080(1).

43. The evidence is also insufficient to establish that

Respondent ' s primary professional concern was not always for the

students and for the development of the students ' potential. The

evidence is insufficient to establish that Respondent did not

strive for professional growth and seek to exercise the best

professional judgment and integrity. Thus, Petitioner failed to

prove that Respondent violated the Code of Ethics set forth in

section 6A - 10.080(2).

44. Additionally, t he evidenc e is insufficient to establish

that Respondent was unaware of the importance of maintaining the

respect and confidence of her colleagues, of students, of

parents, and of other members of the community, and that

Respondent did not strive to achieve and sust ain the hi ghest

degree of ethical conduct. Thus, Petitioner failed to prove that

Respondent violated the Code of Ethics set forth in section 6A -

10.080(3).

Principles of Professional Conduct :

45. Rule 6B - 1.006, renumbered without change as 6A - 10.0 81,

is entitled " Principles of Professional Conduct for the Eduction

Profession in Florida, " and provides in pertinent part:

( 1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Flori da.

(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.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparageme nt.

46. Petitioner alleges that Respondent br eached the duty,

imposed under r ule 6 A - 10.081( 3)(a), to protect students from

harmful conditons; and that she committed the offense described

in subparagraph 3(e) of that Rule.

47. Florida Adminis trative Code Rule 6A - 10.081(3)(a)

imposes on teachers the affirmative duty to protect students from

harmful conditions. Rule 6A - 10.081(3)(a) , however, is

inapplicable, where, as here, the teacher ' s conduct constituted

the alleged harmful condition. See B roward Cnty. Sch. Bd. v.

Deering , Case No. 05 - 2842 (Fla. DOAH July 31, 2006) .

Accordingly, the undersigned concludes that Respondent is not

guilty of failing to make reasonable protective effort s .

48. Florida Administrative Code Rule 6A - 10.081(3)(e )

prohibits teachers from intentionally exposing a student to

unnecessary embarrassment or disparagement. As such, " [t]here

can be no violation in the absence of evidence that the teacher

made a conscious decision not to comply with the rule. "

Langston , 653 So. 2d at 491.

49. The evidence does not show that Respondent

intentionally exposed any student to embarrassment or

disparagment, unnecessary or otherwise.

School Board Rules :

50. Section 1001.41(2), Florida Statutes, grants district

sc hool boards the authority to adopt rules pursuant to sections

120.536(1) and 120.54 to implement their statutory duties and

supplement rules prescribed by the State Board of Education.

51. Petitioner has adopted certain bylaws and policies

consiste nt with said authority . School Board Policy 3210,

entitled Standards of Ethical Conduct, sets forth specific

obligations of educational professionals, almost all of which are

copied verbatim from the Principles of Professional Conduct for

the Education Pr ofession , as set forth above in rule 6A - 10.081.

Policy 3210 provides, in pertinent part, as follows:

All employees are representatives of the

District and shall conduct themseleves, both

in their employment and in the community, in

a manner that will ref lect credit upon

themselves and the school system.

A. An instructional staff member shall:

* * *

3. make a reasonable effort to protect the

student from conditions harmful to learning

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

physical health and safety ;

* * *

7. not intentionally expose a student to

unnecessary embarrassment or disparagement;

* * *

21. not use abusive and/or profane language

or display unseemly conduct in the workplace.

52. School Board Policy 3210.01, entitled Code of E thics,

restates verbatim the three sections of the Code of Ethics of the

Education Profession in Florida set forth above in rule 6B - 1.001.

Thereafter, Policy 3210.01 describes fundamental principles upon

which th e Code of Ethics is predicated and address es conflicts of

interest , conduct regarding students , and personnel matters.

53. With two exception s, the alleged violations of these

School Board rules are substantively identical to alleged

violations of the State Board of Education rules previous ly

address ed and will not be revisited.

54. Policy 3210 A.21. directs tha t an instructional staff

member shall " not use abusive and/or profane language or display

unseemly conduct in the workplace. "

55. In its Proposed Recommended Order, Pe titioner contends

that Respondent violated School Board Policy 3210A . 21 . by

displaying " unseemly conduct, which at times was abusive and

profane. " The undersigned finds that the evidence is

insufficient to establish t hat Respondent used abusive or profane

langauge in the workplace. Thus, she cannot be guilty of that

aspect of the offense.

56. The Rule prohibits, but does not define, " unseemly

conduct. " As commonly used, t he term " unseemly " means " not

according with established standards of good f orm or taste " or

" not suitable for time or place. " See Merriam - Webster Online

Dictionary, http://www.merriam - webster.com/dictionary/unseemly .

Petitioner argues that, " [w]hen Respondent refu sed to leave the

office, challenging her assistant principal in front of students,

parents and staff, she tarnished the image of Horace Mann. " The

undersig ned concurs that Respondent ' s conduct in the main office

on March 12, 2013, was inappropriate, and n ot properly suited for

the occasion. Petitioner , however, failed to argue or provide

any objective, neutral standard, from which to judge her alleged

misconduct, and, therefore, failed to establish a violation of

Policy 3210A.21. See Miami - Dade Cnty. Sch . Bd. v . Brooks , Case

No. 04 - 4478 (Fla. DOAH Oct. 17, 2005) ( " Consequently, if [the

policy] makes it a disciplinable offense to behave in a way that

causes someone not to hold the employee or the school system in

high regard, then the decision - maker could a pply the Rule in

accordance with the rule of law only if he were able to

conceptualize an objective standard of conduct, a neutral

principle for defining reasonably esteem - worthy behavior under

the circumstances at hand . . . . The School Board neither pro ved

nor argued for the existence of such a standard of conduct.

Without a neutral principle to apply, the undersigned, where he

to attempt to pass judgment on Brooks ' s behavior, would be merely

voicing a personal opinion Ï the very antithesis of the rule of law

. . . . [T]o the extent the School Board has charged Brooks with

a general failure to behave in a manner that reflects credit on

himself and the school system, it has failed to offer sufficient

evidence to sustain the charge. " ).

57. Petitioner also contends in its Proposed Recommended

Order that Respondent violated th e introductory language of

Policy 3210 requiring all employees of the District to conduct

themseleves, both in their employment and in the community, in a

manner that reflects credi t upon themselves and the school

system. With respect to this allegation, Petitioner has

similarly presented no evidence of an objective standard of

conduct to evaluate Respondent ' s actions and has failed to

present sufficient evidence to sustain the char ge.

GROSS INSUBORDINATION

58. Petitioner alleges that Respondent ' s conduct, at

various times from March 2011 through April 20 1 3, constituted

gross insubordination. Florida Administrative Code Rule 6A -

5.506(4), effective from April 5, 1983 , through July 7 , 2012,

defines gross insubordination or willful neglect of duties as " a

constant or continuing intentional refusal to obey a direct

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

authority. "

59. In Forehand v. Sch. Bd. of Gulf Cn ty. , 600 So. 2d 1187,

1192 - 93 (1st DCA 1992), the court construed the intentional

component of gross insubordination as follows:

Rule 6B - 4.009, Florida Administrative Code,

defines " gross insubordination " . . . as " a

constant or continuing intentional ref usal to

obey a direct order, reasonable in nature,

and given by and with proper authority "

(emphasis added). The word " intent " has been

defined as follows:

The word " intent " is used throughout the

Restatement of Torts, 2nd, to denote that the

actor desi res to cause consequences of his

act, or that he believes that the

consequences are substantially certain to

result from it. Sec. 8A. Black ' s Law

Dictionary 727 (5th Ed. 1979)(emphasis

added). An " intentional " act has been

defined as one " done deliberate ly . " American

Heritage Dictionary of the English Language

683 (New College ed. 1979)(emphasis added).

60. Applying the rules of law to the allegations prior to

July 8, 2012, t he undersigned finds that the evidence is

insufficient to establish that Res pondent was grossly

insubordinate. Petitioner ' s presented evidence that Respondent

was investigated for several alleged incidents. Additionally,

Petitioner established that CFRs were held for the alleged

incidents. Finally, Petitioner established that e ither through a

letter of reprimand or the CFR itself, Respondent was thereafter

directed to comply with all MDCSB rules , and some rules

specifically .

61. Admonishing a teacher to comply with all MDCSB rules is

not tantamount to a direct order, reasonab le in nature, and given

by and with property authority. To hold otherwise would permit a

Principal, on the first day of school, to direct all teachers to

follow all MDCSB rules, and upon a violation of any rule conclude

that the teacher was grossly insubo rdinate. The undersigned is

not willing to reach such a conclusion.

62. Florida Administrative Code Rule 6A - 5.056(4), effective

July 8 , 2012, defines gross insubordination as " the intentional

refusal to obey a direct order, reasonable in nature, and gi ven

by and with proper authority; misfeasance, or malfeasance as to

involve failure in the performance of the required duties. "

Abse nt from the current version of r ule 6A - 5.506(4) is the

requirement that the refusal be constant or continuing.

63. Appl ying the rules of law to the alle gations post

July 8, 2012, Petitioner has established Respondent was grossly

insubordinate concerning the incidents o f March 1, 5, 7, and 12,

2013. On each of those occasions, Respondent was given a direct

order, reasonab le in nature, by an individual with proper

authority, and Respondent refused to obey the order.

INCOMPETENCY

64. Petitioner alleges that Respondent ' s conduct, at

various times during the 2012 - 2013 school year, constitutes

incompetency due to inefficienc y, and, thus just cause for her

termination. Florida Administrative Code Rule 6A - 5.5056(3)

provides as follows:

(3) " Incompetency " means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) " Inefficiency " means one or more of the

following:

1. Failure to perform duties prescribed by

law.

2. Failure to communicate appropriately with

and relate to students.

3. Failure to communicate appropriately with

and relate to colleagues, ad ministrators,

subordinates, or parents;

4. Disorganization of his or her classroom

to such an extent that the health, safety or

welfare of the students is diminished; or

5. Excessive absences or tardiness.

65. Petitioner argues that Respondent fai led to perform the

following duties prescribed by law: 1) accept other students in

her classroom on March 7, 2013 and April 1, 2013; 2) engage her

students and be present in the classroom by sitting in the

doorway; and 3) complete required FCAT training. Petitioner has

failed to identify the legal source(s) from which the supposed

obligations flow. The undersigned is unwilling to engage in

speculation as to same, and, therefore, Petitioner has failed to

establish a violation of rule 6A - 5.056(3)(a)(1).

66. Petitioner further argues that Respondent violated rule

6A - 5.056(3)(a)(2) and (3) by her alleged failure to " communicate

appropriately " and " relate " with students, colleagues and

administrators. The terms " communicate appropriately " and

" relate " are relative. As a condition precedent to finding a

violation of these relative terms, the undersigned must have an

objective standard of conduct for defining same under the facts

and circumstances at issue. Without a neutral principle to

apply, the undersig ned would be simply advancing his personal

opinion as to whether Respondent communicated inappropriately or

failed to relate with students, colleagues, and administrators.

Here, Petitioner neither proved nor argued for the existence of

such a standard of conduct, and, therefore, has failed to present

sufficient evidence to sustain the charges.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED:

That the Miami - Dade County School Board enter a final order

fin ding Shavonne Anderson guilty of gross insubordination,

suspend her employment without pay for a period of 180 school

days, and place her on probation for a period of two years.

Because Ms. Anderson has already been suspended for more than 180

school days , it is RECOMMENDED that her employment be reinstated,

with the calculation of back pay not to include pay for the 180 -

day suspension period.

DONE AND ENTERED this 30 th day of December, 2013, in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

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 t he

Division of Administrative Hearings

this 30 th day of December , 2013.

ENDNOTES

1 / Jimmie L. Brown, Ed.D., the District Director of the Office of

Professional Standards for MDCPS, defined a CFR as " a fact

finding meeting where the employee is notified of specific

concerns and the employee is given an opportunity to respond to

those concerns. "

2 / Petitioner ' s evidence concerning this allegation consisted

entirely of hearsay evidence, which does not fall within an

exception to the hearsay rule. See Fla. Admin. Code R. 28 -

106.213(3).

3 / Ms. De Posada conceded that she receive d the requested lesson

plans and that the plans were consistent with the class agenda.

COPIES FURNISHED :

Shavonn e Anderson

2868 Northwest 197th Terrace

Miami, Florida 33056

Sara M. Marken, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue , Suite 430

M iami, Florida 33132

Matthew Carson, General Counsel

Department of Education

Turlington Build ing, 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, Florida 32399 - 0400

Alberto M. Carvalho, Superinten dent

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 exceptio ns

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.