14-006002 Miami-Dade County School Board vs. Jose R. Bustos Status: Closed Recommended Order on Monday, May 11, 2015.

Summary: School security monitor's employment should be terminated for excessive absenteeism and for failure to appropriately communicate with school administrators.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 6002

JOSE R. BUSTOS ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference between Tallahassee and Miami,

Florida, on March 18, 2015 , before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Sara M. Marken, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Post Office Box 4940

Clearwater, Flori da 33761 - 1538

STATEMENT OF THE ISSUES

Whether Jose R. Bustos (Respondent) committed the acts

alleged in the Revised Notice of Specific Charges filed by the

Miami - Dade County School Board (the School Board) on March 6,

2015 , and whether the School Board h as good cause to terminate

RespondentÓs employment as a school security monitor .

PRELIMINARY STATEMENT

At the times relevant to this proceeding, Respondent was

employed by the School Board as a school security monitor at

G. Holmes Braddock Senior High Sch ool (Braddock High) , a public

school in Miami - Dade County.

At its regularly scheduled meeting on December 10 , 2014, the

School Board took action to suspend Respondent's employment

without pay and institute proceedings to terminate h is

employment. Respondent timely challenged the School Board's

action, the matter was referred to DOAH, and this proceeding

followed.

The School Board filed its Revised Notice of Specific

Charges on March 6 , 201 5 , in which the School Board made factual

allegations relating to Respondent's absenteeism. Based on those

factual allegations, t he School Board charged in three separate

counts that Respondent was guilty of (1) m isconduct in o ffice,

(2) incompetency due to inefficiency, and (3) gross

insubordina tion.

At the final hearing, Petitioner presented the testimony of

Carmen Gutierrez ( district director of the Office of Professional

Standards) and Manuel Garcia (principal of Braddock High ) . The

School Board offered p re - numbered E xhibits 1 through 8 , 11

through 13 , 17 through 18, 20 through 28, and 30 through 32, each

of which was admitted into evidence. The School Board Ós

remaining pre - numbered exhibits were not offered into evidence.

Respondent testified on his own behalf, but offered no other

te stimony. Respondent offered one E xhibit, which was admitted

into evidence. RespondentÓs E xhibit was filed post - hearing.

A Transcript of the proceedings, consisting of one volume,

was filed on April 20, 2015. On RespondentÓs unopposed motion,

the dea dline for the Respondent to file his proposed recommended

order was extended to close of business on May 4, 2015. T he

parties timely filed proposed recommended orders, which have been

duly considered by the undersigned in the preparation of this

Recommend ed Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (201 4 ), and all references to rules are to the

version thereof in effect as of the entry of this Recommended

Order.

FINDINGS OF FACT

1. At all times material hereto, the Sc hool Board has been

the constitutional entity authorized to operate, control, and

supervise the public schools in Miami - Dade County, Florida.

Braddock High is a public school in Miami - Dade County, Florida.

2. The School Board hired Respondent on September 19, 2001 ,

as a school security monitor assigned to Braddock High, the

position Respondent continuously held until the date of the

disciplinary action at issue .

3. At all times material hereto, RespondentÓs employment

was go verned by the collective bargaining agreement between the

School Board and the United Teachers of Dade, the rules and

regulations of the School Board, and Florida law.

4. Braddock High is a large school in terms of student

population and campus size. B raddock High employs 12 full - time

security monitors. While it is common practice to hire a

substitute for an absent teacher, Braddock High does not employ a

substitute security monitor to replace an absent security

monitor. If a security monitor is absen t on any given day, the

schedules of the other security monitors must be adjusted to

avoid a breech in security.

5. Respondent has been documented for poor attendance since

April 2006.

DECEMBER 4, 2009 , MEMORANDUM

6 . Manuel S. Garcia has been the principal of Braddock High

for the last 13 years. On December 4, 2009 , M r. Garcia issued to

Respondent a memorandum on the subject ÐAbsence from Worksite

Directive.Ñ From October 2009 to December 2009, Resp ondent

accumulated 13.5 absences 1/ of which 7.5 were unauthorized. The

7.5 unauthorized absences were categorized as ÐLeave Without Pay

Unauthorized (LWOP - U) Ñ . T he memorandum issued by Mr. Garcia as

RespondentÓs supervisor, provided, in part, as follows:

Because your abse nce from duties adversely

impacts the work environment, particularly in

the effective operation of this worksite, you

are apprised of the following procedures

concerning your future absences:

Be in regular attendance and on time.

Intent to be absent must be communicated

directly to a designated site supervisor,

Mr. Manuel S. Garcia, principal or Dr. Edward

G. Robinson, assistant principal.

Absences for illness must be documented by

your treating physician and a written note

presented to the designated site supervisor

upon your return to the site.

Your future absences will be reported as LWOU

[sic] (unauthorized) until you provide the

required documentation to show that you

qualify for Family Medical Leave Act (FMLA)

or oth er leave of absence.

If it is determined that future absences are

imminent, leave just [sic] be requested and

procedures for Board approved leave

implemented, and the FMLA or ADA

requirements, if applicable, must be complied

with.

These directives ar e in effect upon receipt

of this notice and are necessary to prevent

adverse impact to students and their academic

progress and to ensure continuity of the

educational program and to maintain effective

worksite operations.

Please be assured that assista nce will

continue to be provided to facilitate your

regular attendance. Non - compliance with the

directives will be considered a violation of

professional responsibilities.

APRIL 23, 2010 , CONFERENCE FOR THE RECORD

7 . On April 23, 2010, Respondent was r equired by Mr. Garcia

to attend a Conference for the Record. The purposes of the

conference were to address RespondentÓs non - compliance with

School Board Rule 6Gx13 - 4A - 1.21 ( Responsibilities and Duties ) and

his insubordination to attendance directives.

8. Between January 19, 2010 , and April 6, 2010 , Respondent

was absent 14.5 days without communicating his intent to be

absent to the p rincipal or the a ssistant p rincipal. As part of

the conference, Mr. Garcia reiterated in writing to Respondent

the direc tives pertaining to attendance set forth in the

December 4, 2009, memorandum . Mr. Garcia advised Respondent that

Ð[a]ny non - compliance with these directives will compel [sic]

gross insubordination and will compel further disciplinary

measures.Ñ Mr. Garc ia provided Respondent with a copy of School

Board rules 6Gx13 - 4A.1.21 (Responsibilities and Duties) and

6Gx13 - 4E - 1.01 (Absences and Leave).

9. Mr. Garcia issued Respondent a referral to the School

BoardÓs Employee Assistance Program (EAP) . There was no evidence

that Respondent used that referral.

10. For the 2009 - 2010 school year, Respondent was absent a

total of 28.5 days of which 17.5 days were unauthorized.

DECEMBER 8, 2011 , MEMORANDUM OF CONCERN

11. On December 8, 2011, Mr. Garc ia issued to Respondent a

Memorandum of Concern addressing his excessive absences. W ith in

less than five months into the 2010 - 11 school year, Respondent

had accumulated 15 absences of which 8 were unauthorized.

Respondent was informed that he was in viola tion of School Board

Policy 4430 - Leaves of Absence. 2/ Additionally, he was directed

to report any future absence to Mr. Medina, the a ssistant

p rincipal.

DECEMBE R 5 , 2012 , MEMORANDUM

12. On December 5, 2012, Mr. Garcia issued Respondent

another m emorandum addressing his absences. Mr. Garcia noted

that Respondent had been absent a total of 11 days during the

2012 - 2013 school year. RespondentÓs absence on November 21,

2012 , was unauthorized. Mr. Garcia reiterated the directives as

to absenteeism he had given to Respondent on December 4, 2009 ,

and April 23, 2010.

SEPTEMBER 10, 2013 , MEMORANDUM

13. On September 10, 2013, Mr. Ga rcia issued Respondent

another m emorandum addressing his absences. Between

September 27, 2012 , and August 29, 2013, Respondent had 36.5

absences , 19.5 of which were unauthorized leave. Mr. Garcia

reiterated the directives as to absenteeism he had given to

Respondent on December 4, 2009; April 23, 2010; and December 12,

2012.

14. Mr. Garcia stated to Respondent that he considered

RespondentÓs actions of failing to abide by the attendance

directives to be insubordination.

OCTOBER 1 6 , 2013 , CONFERENCE FOR THE RECORD

15 . On October 1 6 , 2013, Mr. Garcia conducted a Conference

for the Record with Respondent to addre ss RespondentÓs

attendance, his failure to abide by the previously issued

directives, and his future employment with the School Board.

Between September 30 and October 4, 2013, Respondent was absent

without authorization. For three of t hose four days, Respondent

did not notify anyone at Braddock High that he would be absent.

Mr. Garcia reiterated the directives he had given to Respondent

on December 4, 2009; April 23, 2010; December 12, 2012; and

September 10, 2013.

16. Mr. Garcia advised Respondent aga in that failure to

comply with directives would be deemed gross insubordination.

Mr. Garcia again provided Respondent with a copy of School Board

Policy 4430 - Leaves of Absence .

17. Mr. Garcia provided to Respondent a second refe rral to

the EAP. In addition, Mr. Garcia gave Respondent contact

information for four School Board Departments (including the name

and telephone number of each departmentÓs director). Those

departments were Civil Rights Compliance; Leave, Retirement, and

Unemployment; Human Resources Î Americans with Disabilities Act;

and EAP. 3/

18. On October 18, 2013, Mr. Garcia issued a written

reprimand to Respondent based on his absenteeism and his repeated

failure to notify administrators in advance of absences.

JANUARY 16, 2014, CONFERENCE FOR THE RECORD

19 . On January 10, 2014, Mr. Garcia issued to Respondent a

Notice of Abandonment based on Respondent Ós absence from work for

the workweek beginning January 6 , 2014, and his failure to

communicate in advance wit h any school administrator about the

absences.

20. On January 16, 2014, Mr. Garcia conducted a Conference

for the Record to address RespondentÓs attendance . RespondentÓs

unauthorized absence for an entire week and his failure to abide

by the previously issued directives prompted the Conference for

the Record. Mr. Garcia also discussed RespondentÓs future

empl oyment with the School Board.

21. Mr. Garcia advised Respondent that the directives that

had been repeat edly reiterated to Respondent were still in full

force and effect. Mr. Garcia advised Respondent that failure to

adhere to those directives would be considered gross

insubordination. Mr. Garcia gave Respondent copies of the

applicable School Board polici es , including a copy of School

Board Policy 4430 Î Leaves of Absence, and 4210 - Standards of

Ethical Conduct.

22. Mr. Garcia issued Respondent a l etter of r eprimand.

MARCH 12, 2014, CONFERENCE FOR THE RECORD

23. Following the written reprimand in January 2014,

Respondent was absent without authorization on six consecutive

school days in February 2014.

24. On March 12, 2014, Carmen Gutierrez, the district

director of the Office of Professional Standards, conduct ed a

Conference for the Record with Respondent because of RespondentÓs

history of absenteeism and his unauthorized absences in 2014.

Ms. Gutierrez issued to Respondent the same directives Mr. Garcia

had repeatedly issued to Respondent.

25. Ms. Gutierre z informed Respondent that his failure to

follow directives constituted gross insubordination.

26. The Summary of the Conference for the Record contains

the following:

You were given the opportunity to respond to

your excessive absenteeism. You stated that

you had a family problem, a family member

that was sick and you were helping them [sic]

out. Ms. Hiralda Cruz - Ricot spoke on your

behalf stating that you had been diagnosed

with fibromyalgia and it impedes your ability

to do things. She added that y ou were

recently diagnosed and are not undergoing

treatment. Ms. Cruz - Ricot said that you

would be producing doctorÓs notes since

Mr. Garcia remarked that he had only received

one doctorÓs note dated October 18, 2013 from

Broward Psychological Services.

MAY 7, 2014, SUSPENSION

2 7. At the School Board meeting on May 7, 2014, t he School

Board took action to suspend Respondent without pay for fifteen

(15) workdays for just cause, including, but not limited to:

gross insubordination, excessive absenteeism, non - performance and

deficient performance of job responsibilities, and violation of

School Board Policies 4210 - Standard s of Ethical Conduct,

4210. 01 - Code of Ethics, 4230 Î Leaves of Absence. Respondent was

notified of t he BoardÓs action via a letter dated

September 4, 2014.

JUNE 3, 2014, NOTICE OF ABANDONMENT

2 8. Respondent was due back fr om his suspension on May 29,

2014. Respondent failed to show up for work on May 29th,

May 30th, June 2 nd , and June 3rd. Respondent was mailed another

Notice of Abandonment. Respondent provided no explanation for

his leave.

2 9. At the beginning of the following school year on

August 19, 2014, Mr. Garcia reiterated the directives as to

absenteeism that had been repeatedly given to Respondent by

Ms. Gutierrez and by Mr. Garcia.

OCTOBER 28, 2014, CONFERENCE FOR THE RECORD

3 0. Respondent failed to report to work for four

consecutive school days beginning September 29 , 2014. As a

result, on October 2 8 , 2014, Ms. Gutierrez conducted a Conference

for the Record with Respondent to address RespondentÓs

absentee ism, gross insubordination, non - performance and deficient

performance of job responsibilities and violation of School Board

Policies 4210 - Standard s of Ethical Conduct, 4210.01 - Code of

Ethics, 4230 Î Leaves of Absence.

3 1. On December 9, 2014, Respondent received a letter

informing him that the Superintendent of Schools would be

recommending that the School Board suspend Respondent Ós

employment without pay and initiate proceedings to terminate that

employment.

32 . At its regularly scheduled meeting on December 10,

2014, the School Board suspended RespondentÓs employment and

instituted these proceedings to terminate h is employment.

FAILURE TO COMMUNICATE

33. In addition to the excessive absenteeism set forth

above, between October 2009 and December 2014, Respondent

repeatedly failed to communicate in advance with any

administrator that he would be absent on days he failed to appear

for work.

DEPRESSION

34. RespondentÓs only exhibit was a letter from Dr. Maribel

Agullera, a psychiatrist. This letter confirms that Respondent

has been diagnosed with ÐMayor Depressive Disorder, Recurrent,

ModerateÑ and ÐAlcohol Dependence.Ñ The exhibit also confirms

that Resp ondent is on medication.

35. Respondent testified, credibly, that he was diagnosed

with depression before 2001, the year he first started working at

Braddock High. Respondent testified he has suffered from

depr ession for most of his adult lif e and th at all of his

absences were related to depression. There was no other evidence

to support the contention that RespondentÓs repeated absences

should be attributed to depression. In the absence of competent

medical evidence to support RespondentÓs contenti on, t he

undersigned declines to find that RespondentÓs excessive

absenteeism and his failure to appropriately communicate with

school administrators over a five - year period was attributable to

depression. 4/

CONCLUSIONS OF LAW

36 . DOAH has jurisdiction over the subject matter of and

the parties to this case pursuant to sections 120.569 and

1 20.57(1), Florida Statutes (2014 ).

37 . Respondent is an Ðeducational support employeeÑ within

the meaning of section 1012.40.

Section 1012.40(2)(c) pertains to edu cational support employees

and provides as follows:

(c) In the event a district school

superintendent seeks termination of an

employee, the district school board may

suspend the employee with or without pay.

The employee shall receive written notice and

shall have the opportunity to formally appeal

the termination. The appeals process shall

be determined by the appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining agreement.

38 . Beca use the School Board seeks to terminate

Respondent's employment, which does not involve the loss of a

license or certification, the School Board has the burden of

proving the allegations in its Notice of Specific Charges by a

preponderance of the evidence, as opposed to the more stringent

standard of clear and convincing evidence. See 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); Dileo v. Sch. Bd. of Dade Cnty . , 569 So. 2d 883 (Fla. 3d

DCA 1990).

39 . The preponderance of the evidence standard requires

proof by Ðthe greater weight of the evidence,Ñ Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that Ðmore likely

than notÑ tends to prove a certain pro position. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

40 . This is a de novo proceeding designed to formulate

final agency action. See Hamilton Cnty. Bd. of Cnty. Comm'rs v.

Dep't. Envtl. Reg. , 587 So. 2d 1378 (Fla. 1st DCA 1991), and

section 120.57(1)(k), Fla. Stat.

THE ALLEGED VIOLATIONS

41 . Article XXI(3)(D) of the collective bargaining

agreement between the School Board and the teacherÓs union

provides that just cause for the termination of educational

support personnel includes Ð misconduct in office ,Ñ

Ðincompetency,Ñ and Ðgross insubordi nation.Ñ Those terms are

defined by Florida Administrative Code R ule 6B - 4.009.

42 . The Revised Notice of Specific Charges alleged that

Respondent was guilty of the following: (Count 1) m isconduct in

o ffice, (Count 2) incompetency due to inefficiency, an d (Count 3)

gross insubordination.

COUNT 1: MISCONDUCT IN OFFICE

43 . Florida Administrative Code R ule 6A - 5.056(2) defines

the term ÐMisconduct in Office,Ñ in relevant part, as follows:

(2) ÐMisconduct in OfficeÑ means one or more

of the following:

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

Education Profession in Florida as adopted in

[rule 6A - 10.080];

(b) A violation of the Principles of

Professional Conduct for the Education

Profes sion in Florida as adopted in

[ rule 6A - 10.081];

(c) A violation of the adopted school board

rules; . . .

44 . Rule 6A - 10.080 sets forth the following as the Code of

Ethics of the Education Profession in Florida:

(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 educatorÓs primary professiona l

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 o f 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.

45 . Rule 6A - 10.081 sets forth the ÐPrinciples of

Professional Conduct for the Education Profession in Florida,Ñ

and provides, in relevant part, as follows:

(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 studentÓs mental

and/or physical health and/or safety.

46. School Board Policy 4210, Standards of Ethical Conduct,

provides, in relevant part as follows:

A support staff member with direct access to

students shall:

A. 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.

47 . The School Board proved that Respondent was guilty of

misconduct in of fice by proving that Respondent was guilty of

excessive absenteeism and by proving that RespondentÓs excessive

absenteeism adversely impacted the security of Braddock High.

COUNT 2: INCOMPETENCY DUE TO INEFFICIENCY

48. Rule 6A - 5.056 (3) defines the terms ÐincompetencyÑ and

ÐinefficiencyÑ as follows:

(3) ÐIncompetencyÑ means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a ) ÐIneffici encyÑ means one or more of the

following:

1. Failure to perform duties prescribed by

law;

* * *

3. Failure to communicate appropriately with

and relate to colleagues, administrators,

subordinates, or parents;

* * *

5. Excessive absences or tardiness.

49. The School Board proved that Respondent was guilty of

incompetency due to inefficiency as alleged in Count 2 by proving

that Respondent failed to communicate appropriately with

administrators and by proving that Respondent was guilty of

excessive absenteeism.

COUNT 3: GROSS INSUBORDINATION

50 . Rule 6B - 4.009(4) define s Ðgross insubordinationÑ to

mean Ða consistent or continuing intentional refusal to obey a

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

authority.Ñ

51. The School Board proved that Respondent was guilty of

gross insubordination by repeatedly failing to follow applicable

polices pertaining to absences from school after being

specifically instructed to adhere to those policies by Mr. Garcia

and Ms. Gutierrez .

52 . In making the penalty recommendation that follows, the

undersigned considered RespondentÓs request that he be given one

last opportunity to keep his job. The undersigned has also

considered RespondentÓs testimony that h e has long suffered from

depression, to which Respondent attributed his absenteeism.

Except for a note from his doctor stating that Respondent suffers

from depression and alcohol dependence , RespondentÓs testimony is

uncorroborated. T he undersigned is constrained to recommend that

the School Board terminate RespondentÓs employment due to his

excessive absenteeism and his repeated failure to follow very

straightforward directives from Mr. Garcia and Ms. Gutierrez .

RECOMMENDATION

The following recommend ations are 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 adopting the Findings of Fact and Conclusions

of Law set forth in this Recommended Order. It is furthe r

RECOMMENDED that the final order terminate the employment of

Jose R. Bustos.

DONE AND ENTERED this 11 th day of May , 2015, in Tallahassee,

Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 11 th day of May , 2015.

ENDNOTES

1/ For ease of r eference any day or part thereof that Respondent

was absent from work will be referred to as an absence.

2/ This policy replaced School Board rule 6Gx13 - 4E - 1.01 on July

7, 2011.

3/ There was no evidence that Respondent sought help from any of

those departments.

4/ In his Proposed Recommended Order, Respondent makes the

following statement: ÐClearly, just cause exists to discipline

Respondent. He does not expect back pay if he is reinstated to

his position. What Respondent seeks is [a] final opportunity to

[do] his job on a timely [and] consistent basis. There is no

indication there is any problem with his job performance aside

from his attendance. If Respondent can fix his a ttendance, he

can do his job. He has taken steps to improve his outlook, and

thus, his attendance. He asks for one last opportunity.Ñ

COPIES FURNISHED:

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Post Office Box 4940

Clearwater, Florida 33761 - 1538

(eServed)

Sara M. Marken, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turli ngton Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

(eServed)

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.