18-004764TTS Polk County School Board vs. Stacia Boyd Status: Closed Recommended Order on Tuesday, December 18, 2018.

Summary: School Board has just cause to terminate teacher for willful neglect of duites in failing to timely enter grades.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 4764TTS

STACIA BOYD,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was co nducted before

Andrew D. Manko , Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes, 1/ on November 6, 2018 , in Lakeland ,

Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell and Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highwa y 19 North , Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner, Polk County

School Board, to termina te Respondent , Stacia Boyd from her

employment as a teacher .

PRELIMINARY STATEMENT

By l etter dated, January 26, 2018, the Associate

Superintendent of the Polk County School Board (the ÐSchool

BoardÑ) notified Stacia Boyd o f her intent to recommend that

Ms. Boyd be terminated from her employment as a classroom

teacher. The School Board initi ally recommended termination on

the following grounds: alleged excessive absenteeism in May

2017 resulting in a verbal warning (Step One ) an d written

reprimand (Step Two); alleged mis conduct in an interaction with

an assistant principal in July 2017 resul ting in a five - day

suspension without pay (Step Three ) ; and alleged serious

misconduct relating to Ms. BoydÓs failure to timely enter grades

despite several a dmonishments to do so (Step Four ).

Ms. Boyd timely requested an administrative hearing to

challeng e her termination and the School Board referred the

matter to the Division of Administrative Hearings (ÐDOAHÑ) for

assignment of an Administrative Law Judge to conduct an

evidentiary hearing under chapter 120, Florida Statutes.

After transferring the case to DOAH, the School Board sent

an amended termination letter, dated October 24, 2018. The

amended letter still recommended termination, but omitted any

reference to the conduct at issue in S tep s One and Two and

relied solely on the conduct at issue in Ste ps Three and Four.

Consistent with the amended letter, counsel for the School Board

confirmed at the final hearing that the School Board wished to

proceed only on the misconduct at issue in Steps Three and Four.

The final hearing was held on November 6, 2018. The School

Board presented the testimony of three witnesses who worked with

Ms. Boyd at Wendell Watson Elementary School : (1) Shari

Richard, the Instructional Coach; (2) Tanya Poe - Liburd, th e

Assistant Principal; and (3) Kelly Burgess, the Principa l.

PetitionerÓs Exhibits 1 through 14 were received into evidence

almost entirely without objection. 2/ Ms. Boyd testified on her

own behalf.

A one - volume T ranscript of the final hearing was filed at

DOAH on November 21, 2018 . Both parties filed Propose d

Recommended Orders , which were duly considered in preparing this

Recommended Order.

FINDING S OF FACT

1 . The School Board employs Ms. Boyd as a classroom

teacher . She holds an instructional staff contract pursuant to

section 1012.33 , Florida Statutes.

2 . Ms. Boyd has been a classroom teacher for 17 years .

She began her teaching career in Mississippi, but has taught in

Polk County for the last 15 years. In the past, Ms. Boyd taught

first grade. During the 2015 - 2016 and 2016 - 2017 school years,

she ta ught second grade at Socrum Elementary School. At the

start of the 2017 - 2018 school year, she taught first grade at

Wendell Watson Elementary School.

3. At all relevant times, the terms of Ms. BoydÓs

employment were governed by a contract negotiated by the School

Board and the Polk Education Association, Inc., called the

Teacher Collective Bargaining Agreement (ÐCBAÑ).

4. Article 4.4 - 1 of the CBA provides for progressive

discipline for teachers , starting with a verbal warning and

escalating up thr ough termination. Progressive discipline is

generally recognized as the process of using increasingly severe

measures when an employee fails to correct a problem after being

given a reasonable opportunity to do so.

5. Pursuant to the CBA, p rogressive d iscipline is

administered in the following four steps: (1) verbal warning,

(2) written reprimand, (3) suspension without pay for up to five

days, and (4) termination. The CBA makes clear that progressive

discipline must be followed, Ðexcept in cases wher e the course

of conduct or the severity of the offense justifies otherwise.Ñ

6. At the outset of these proceedings, the School Board

based its request for termination on three prior progressive

disciplinary actions against Ms. Boyd for conduct at Socrum

Elementary School. These originally accounted for Steps One,

Two, and Three of the progressive discipline policy.

Importantly, however, the School Board later withdrew Steps One

and Two and confirmed at the hearing that only Step s Three and

Four should be considered. That said, a review of each step is

important for the analysis to follow.

7. In May 2017, the School Board apparently issued

Ms. Boyd a verbal warning and written reprimand for alleged

excessive absenteeism. Those disciplinary actions or iginally

represented Steps One and Two, respectively, of the progressive

discipline policy. But, as acknowledged by the School Board,

these two steps and the conduct underlying them are not

considered for purposes of determining whether the School Board

h a s just cause to terminate Ms. Boyd because they were Ðgrieved

and were removed from her disciplinary history.Ñ

8. In July 2017, the School Board suspended Ms. Boyd

without pay for five days as a result of a May 2017 incident

involving an assistant prin cipal. The parties stipulated that

the School Board referred to the incident as Ðsexual harassmentÑ

and that Ms. Boyd did not challenge the suspension. 3 / T hough the

School Board initially charged this as Step Three of progressive

discipline, its withdraw al of the prior verbal warning and

written reprimand rendered this five - day suspension as the first

step of progressive discipline.

9 . The primary events leading up to the School BoardÓs

decision to terminate Ms. Boyd occurred in the months

immediate ly following the July 2017 suspension, after the School

Board transferred Ms. Boyd to a new school. The School Board

alleges that Ms. Boyd faile d to timely enter grades , which

constituted Ðgross insubordinatio nÑ and Ðwillful neglect of

duty Ñ sufficient to warrant her dismissal. 4 /

10. At the beginning of the 2017 - 2018 school year, the

School Board assigned Ms. Boyd to teach first grade at Wendell

Watson Elementary School. Although she taught first grade two

years prior, she spent the last two years tea ching second grade

at Socrum Elementary.

11. Prior to the start of the school year, the Principal

of Wendell Watson Elementary, Kelly Burgess, met with Ms. Boyd

upon arrival, showed her around the school, and walked her to

her classroom. Principal Burg ess did not discuss teaching

expectations with Ms. Boyd at that time but let Ms. Boyd know

that she was always available to help.

12. At the beginning of the school year, Assistant

Principal Tanya Poe - Liburd met with all of the teachers to

discuss lesson plans and grading expectations, among other

things. Assistant Principal Poe - Liburd did not offer specific

details about these expectations, but she confirmed Ms. Boyd

attended the meeting.

13. The School provided two additional resources for their

teach ers. Ms. Sh ari Richard, the SchoolÓs Instructional Coach,

worked full - time at the School and met with new teachers on a

monthly basis to go over helpful information, even if the

teacher previously taught in the County , because some of

Wendell WatsonÓs st andards were different than other schools.

Ms. Ashley Jones, the first grade team leader, worked full - time

as a first grade teacher at the School and she assist ed the

other first grade teachers with any questions or teaching

issues .

14. When a new teac her started at the School, Ms. Richard

conducted an initial meeting to review a number of teaching

expectations, including curriculum maps, the Pinnacle grading

system, classroom management, and procedures, etc. Ms. Richard

held her first new teacher trai ning session on August 21, 2017,

but Ms. Boyd was unable to attend that day. 5 /

15. On August 28, 2017, Ms. Richard finally met with

Ms. Boyd in her classroom during a lunch/planning hour to

conduct the training session. They walked around the classroom

and Ms. Richard offered advice on organizational issues, such as

lowering a clipboard so the students could reach it. She showed

Ms. Boyd the math lab, how to grade a BEAR spelling inventory,

and where to obtain math and science resources.

16. During t he meeting, which lasted approximately 35 - 40

minutes, Ms. Richard reviewed a packet of training materials.

Ms. Richard went through all of the items, but did not have to

spend as much time on each one because Ms. Boyd had been a

teacher in Polk County and already knew much of the information.

O ne page they did review detailed the ÐsuggestedÑ minimum number

of grades that were expected during a nine week grading period. 6 /

Specifically, the guideline suggested at least nine grades in

writing, 18 grades in reading, four grades each in lan guage and

social studies , and nine grades each in math and science . The

document noted that Ð[t]he total number of grades per subject

may vary.Ñ

17. The training materials did not reference OneNote, the

SchoolÓs online sy stem where teachers upload and access lesson

plans and materials. Ms. Boyd apparently had never used OneNote

before and the School Board presented no evidence that

Ms. Richard or Assistant Principal Poe - Liburd trained her on

this particular system at the beginning of the school year.

18. However, all first grade teachers met as a group twice

a week to create lesson plans for math and writing/reading. The

teachers collaborated on the weekly units, expectations, and

materials, and they collectively uploade d the plans into

OneNote. Ms. Jones attended all of the planning sessions.

Ms. Richard also attended all of the writing/ reading sessions

and most of the math sessions . For other subjects, such as

science and social studies, each teacher created their o wn plans

and materials.

19. In the weeks following the initial training meeting,

Ms. Boyd claimed that she struggled at her new school and felt

like an outsider. But she kept those feelings largely to

herself and her claim that her struggles were caused by the

School lacked credibility. She claimed to have trouble finding

teaching materials and accessing the weekly lesson plans on

OneNote, even though she met twice a week with the other first

grade teachers, including Ms. Jones, and Ms. Richard. She sai d

she struggled for several weeks to find reading books, even

though they were in her classroom the whole time. S he also

claimed to have difficulty obtaining books and plans for science

and math, even though all first grade teachers used the same

curricul um maps and had access to the same materials.

20. Ms. Boyd testified that she knew she was not grading

enough assignments and that her performance was subpar.

Nevertheless, she never proactively reached out to Ms. Richard,

Ms. Jones, Assistant Prin cipal Poe - Liburd, or Principal

Burgess. 7 / Even if Ms. Boyd received no training initially in

the use of OneNote, with which she apparently was unfamiliar, it

was incumbent on her to ask for help immediately. She did not

do so. Even when Ms. Richard emai led her to offer assistance,

Ms. Boyd never responded.

21. Worse yet, Ms. Boyd never raised these critical issues

with Ms. Jones or Ms. Richard at the twice - weekly lesson

planning sessions. Ms. BoydÓs excuse that she tried to find

Ms. Jones every day but could not is incredible and establishes

the willfulness of her failure to obtain the help she clearly

needed.

22. Instead of meaningfully reaching out to her

supervisors for help, Ms. Boyd waited for the SchoolÓs

administration to confront her. On S eptember 19, 2017,

Principal Burgess and Assistant Principal Poe - Liburd met with

Ms. Boyd to discuss several academic concerns, including the

failure to timely enter grades. Ms. Boyd said she felt like an

outsider and was having trouble accessing the less on plans and

figuring out what to grade. Principal Burgess reminded Ms. Boyd

that she was not new to the Pinnacle grading system, but to

check with Ms. Jones, Ms. Richard, or come directly to her if

she had questions regarding grading issues.

23. There i s no dispute that Principal Burgess and

Assistant Principal Poe - Liburd directed Ms. Boyd to input her

grades. But Ms. Boyd says they never told her how many grades

to input and the School Board elicited no testimony to dispute

that fact. Assistant Princip al Poe - Liburd also did not give

Ms. Boyd a deadline, but she noted that interims were due in

late September/early October.

24. Nevertheless, Assistant Principal Poe - Liburd connected

Ms. Boyd with Ms. Jones to ensure she understood how to access

the les son plans and determine what to grade, and they met on

September 25, 2017. Ms. Jones showed Ms. Boyd where to locate

the lesson plans in OneNote and how to insert plans therein .

T hey reviewed the homework policy and substitute teacher plan

procedure. Ms . Jones confirmed her availability to help.

25. Although Ms. Jones showed Ms. Boyd how to access

OneNote, Ms. Boyd never addressed her concern over the lack of

materials and papers to grade. Ms. Boyd said she never raised

those issues with Ms. Jones agai n because she could not find

her. Again, this excuse is not credible g iven that Ms. Jones

worked full - time at the school and they both attended the twice -

weekly lesson plan meetings.

26. On September 29, 2017, Assistant Principal Poe - Liburd

spoke to Ms. Boyd about additional concerns, including the lack

of timely entering grades. As with the prior meeting, the

School Board presented no evidence that Ms. Boyd was directed to

input a specific number of grades. But Ms. Boyd confirmed she

would improve her teaching and grading, upload grades that

weekend, and reprint the interim reports to be sent to the

parents. Ms. Boyd failed to do so.

27. On October 4, 2017, Principal Burgess and Assistant

Principal Poe - Liburd met with Ms. Boyd again. Principal Burges s

reminded Ms. Boyd about grades and expectations, that

Ms. Richard had already discussed the Pinnacle grading system,

which Ms. Boyd was fami liar with since she had been a C ounty

teacher for many years, and that Ms. Boyd should ask if she

needed assistan ce. They directed Ms. Boyd to reach out to

Ms. Jones if she needed materials. Ms. Boyd indicated at that

time that she would enter the grades so the School could

re - print the interim grade sheets.

28. Ms. Boyd went on medical leave on October 4, 2017, as

a result of an unspecified illness.

29. The following week, on October 9, 2017, Ms. BoydÓs

grade sheets showed on average one grade each per student for

social studies and science, three grades for language arts, and

two grades for math. The lack of sufficient grades gravely

concerned Principal Burgess. At a minimum, she expected at

least four grades per subject. Principal Burgess believes she

discussed the grading expectations again with Ms. Boyd, but

cannot recall because Ms. B oyd went on medical leave around that

time.

30. The School re - printed the grade sheets again on

October 12, 2017, which represented the final grades sent to

parents for the nine - week period. Although Ms. Boyd added more

grades in each category since the last meeting, the g rade sheets

included just five grades for language arts, two each for

science and social studies, and four for math.

3 1 . The minimum number of required grades at the nine - week

mark is an important factual issue in this case, as the School

Board alleges th at Ms. BoydÓs grading insufficiencies constitute

just cause for termination. But the School BoardÓs evidence is

inconsistent as to those minimums. The Ð suggested Ñ minimums

sheet provided to Ms. Boyd during her training suggested at

least nine grades each in writing, math, and science, 18 grades

in reading, and four grades each in language and social studies .

Principal Burgess offered conflictin g standards, stating once

that four grades per subject wer e required, stating later that

four grades each for sc ience and social studies and nine grades

each for math and language arts were required, and stating yet

another time that at least nine grades per subject were

required. Ms. Richard testified that typically one grade per

week was required, which equates t o nine grades per subject.

32. Ms. BoydÓs final grade tally for these subjects fell

short of the minimum standards, regardless of which version

applies. But t h is lack of clarity bears significantly on the

allegation that Ms. Boyd intentionally refused to follow a

directive regarding grades .

33. As a result of Ms. BoydÓs grading failures, the School

had to print the report cards without a sufficient number of

grades. The undisputed evidence showed that grading is Ðone of

the most critical functions o f a classroom teacher, because this

is the record on how the students are performing, and is the

communication from the parent and teacherÑ about the childÓs

performance. E ntering a sufficient number of grades at the nine -

week mark was Ðjust part of her re sponsibilities as a teacherÑ

and Ms. Boyd Ós failures in this regard did not meet the

expecta tion of a teacherÓs performance . Ms. Boyd agreed that

she fell short of her duties.

ULTIMATE FINDINGS OF FACT

34. The School Board contends that just cause exists to

terminate Ms. Boyd because her actions constitute Ðgross

insubordinationÑ or Ðwillful neglect of duty,Ñ as those terms

are defined in section 1012.33(1)(a) and Florida Administrative

Code R ule 6A - 5.056 (4) and (5). 8 /

35. Whether Respondent committed the alleged misconduct is

a question of ultimate fac t to be determined by the trier - of -

fact in the context of each alleged violation. Holmes v.

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

667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langs ton v. Jamerson ,

653 So. 2d 489, 491 (Fla. 1st DCA 1995).

36. Based on the evidence and testimony presented during

the final hearing, the School Board failed to prove by a

preponderance of the evidence that Ms. Boyd committed gross

insubordination. Howev er, the School Board proved by a

preponderance of the evidence that Ms. Boyd committed willful

neglect of duties. Accordingly, Ðjust causeÑ exists for the

School Board to discipline Ms. Boyd. § 1012.33(1)(a), Fla.

Stat .

CONCLUSIONS OF LAW

37. DOAH has j urisdiction over the subject matter and

parties to this proceeding pursuant to sections 120.569,

120.57(1), and 1012.33(6)(a)2.

38. T he School Board is duly constituted and charged with

the duty to operate, control, and supervise public schools

within P olk County, Florida . Art. IX, § 4(b), Fla. Const.;

§§ 1001.33 and 1001.42 , Fla. Stat. This includes the power to

discipline instructional staff, such as classroom teachers.

§§ 1012.22(1)(f) and 1012.33, Fla. Stat.

39. Ms. Boyd is a classroom teacher and her employment

with the School Board is governed by an instructional staff

contract. §§ 1012.01(2)(a) and 1012.33 , Fla. Stat . The terms

of Ms. BoydÓs employment with the School Board are also governed

by the CBA.

40. T he School Board may suspend or dismiss Ms. Boyd

during the term of her employment contract , but only for Ðjust

cause.Ñ § 1012.33(1)(a) and (6)(a), Fla. Stat.

41. Similarly, a rticle 4.4 of the CBA provides that

teachers cannot be Ðdisciplined, reprimanded, suspended,

terminated or othe rwise deprived of fringe benefits or

contractual rights during the term of his/her contract without

just cause.Ñ The CBA defines j ust cause as a Ðfair and

reasonable basis for disciplinary action up to and including

termination, as defined in applicable F lorida Statutes specific

to the contract under which the employee is employed.Ñ

42. Section 1012.33(1)(a) lists the instances that qualify

as Ðjust cause , Ñ including Ð gross insubordinationÑ and Ðwillful

neglect of duty .Ñ

43. Pursuant to statutory autho rity, the State Board of

Education promulgated r ule 6A - 5.056, which provides in pertinent

part:

Ð Just causeÑ means cause that is legally

sufficient. Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued

is set forth in sections 1012.33 and

1012.335, F.S. In fulfillment of these

laws, the basis for each such charge is

hereby defined:

* * *

(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.

(5) ÐWillful neglect of dutyÑ means

intentional or reckless failure to carry out

required duties.

44. Ð The Scho ol Board bears the burden of proving by a

preponderance of the evidence each element of the charged

offense which may warrant dismissal .Ñ Cropsey v. Sch. Bd. , 19

So. 3d 351 , 355 (Fla. 2d DCA 2009) (citing Dileo v. Sch. Bd. of

Dade C ty. , 569 So. 2d 883 (Fl a. 3d DCA 1990) ) . P reponderance of

the evidence is defined as Ðthe greater weight of the evidence,Ñ

or evidence that Ðmore likely than notÑ tends to prove a certain

proposition. S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139

So. 3d 869, 872 (Fla. 2014 ) .

45. The School Board contends that just cause exists to

terminate Ms. Boyd because her actions constitute gross

insubordination or willful neglect of duties.

46. Based on the findings of fact above, the School Board

failed to establish by the greater w eight of the evidence that

Ms. BoydÓs conduct rose to the level of gross insubordination.

To succeed on this allegation, the School Board must prove that

the School issued Ms. Boyd a direct, reasonable order that she

intentionally refused to obey. Fla. A dmin. Code. R . 6A -

5.056(4).

47. There is no doubt that the School had authority to

direct Ms. Boyd to grade a minimum number of assignments for

each nine - week period and to timely post those grades. However,

the School Board failed to establish by the greater weight of

the evidence that the School directed Ms. Boyd to input a

specific number of grades or to do so by a specific date. The

evidence also conflicted as to how many grades were required and

the grade sheet given to Ms. Boyd at the beginning o f the year

included only ÐsuggestedÑ minimums. If the SchoolÓs witnesses

who purportedly gave the directives could not agree on the

specifics, then the undersigned finds it more probable than not

that the directives also lacked specificity when given.

4 8. But even if the School issued a reasonable, direct

order, the evidence failed to establish that Ms. Boyd

intentionally refused to obey it. Ms. Boyd did not

intentionally refuse to timely post grades; she failed to have a

sufficient number of grades to post. To be clear, Ms. Boyd

unquestionably acted willfully and neglectfully in failing to

access lesson plans and materials that could be graded. But

that egregious conduct falls short of an intentional refusal to

follow a directive to timely enter her grades.

49. However, the findings of fact above establish by the

greater weight of the evidence that Ms. Boyd committed a

Ðwillful neglect of dutyÑ by recklessly failing to carry out

required duties. Fla. Admin. Code R. 6A - 5.056(5). There is no

disput e that grading assignments and doing so in a timely

fashion are two of the most critical duties of a teacher.

Ms. Boyd agreed that her performance in this regard was

deficient. Yet, she willfully and recklessly failed to avail

herself of the assistance she needed to sufficiently perform

these critical tasks. She met with Ms. Richard and Ms. Jones

twice a week, every week, to discuss lesson plans and never once

raised these concerns with them. Even when she met with

Ms. Jones specifically to discuss ac cessing the lesson plans,

she failed to raise her concern about lacking materials on the

other subjects. Ms. BoydÓs excuse for not obtaining help on

grounds that she could never find Ms. Jones on campus is

incredible and further establishes the willfulnes s of her

misconduct.

50. Because the School Board established by the greater

weight of the evidence that Ms. Boyd engaged in willful neglect

of her duties, just cause exists to discipline her.

51. In determining the appropriate sanction, the School

BoardÓs progressive discipline policy must be consulted.

Article 4.4 - 1 of the CBA provides as follows:

Progressive discipline shall be followed,

except in cases where the course of conduct

or the severity of the offense justifies

otherwise. Unusual circu mstances may

justify suspension with pay. Progressive

discipline shall be administered in the

following steps:

(1) verbal warning in a conference with the

teacher. (A written confirmation of a

verbal warning is not a written reprimand);

(2) dated wri tten reprimand following a

conference;

(3) suspension without pay for up to five

days by the Superintendent and

(4) termination.

ÐLetters of ConcernÑ are not a form of

discipline.

52. The plain language of the CBA limits the School

BoardÓs discretion to impose the ultimate sanction of

termination to only two circumstances: (1) where an employee

has previously been issued a verbal warning, written reprimand,

and a five - day suspension without pay; or (2) where the course

of conduct or the severity of th e offense justifies otherwise.

If neither of those circumstances is met, termination is not a

permissible disciplinary action.

53. The School Board maintains that both circumstances are

met. First, termination is the appropriate next step due to the

pri or five - day suspension without pay based on an unrelated

altercation with an assistant principal. Second, termination is

appropriate because Ms. BoydÓs course of conduct and the

severity of the offense permitted the School Board to avoid

following progres sive discipline policy.

54. As to the School BoardÓs first contention, the

undersigned finds that termination is not the proper next step

of progressive discipline. When the School Board suspended

Ms. Boyd, it did so as Step Three of progressive disc ipline

because she had previously received a verbal warning and written

reprimand. Although Ms. Boyd did not grieve the suspension, she

successfully grieved the two prior disciplinary actions on which

the suspension was explicitly based. Without the two underlying

disciplinary actions (Steps One and Two), the School Board could

not have suspended Ms. Boyd for this isolated incident on what

would have been her first disciplinary action during her 15 - year

career. Instead, Ms. Boyd should have received a ve rbal warning

or at most a written reprimand for the July 2017 incident.

55. Moreover, progressive discipline is typically a form

of escalating penalties for a similar pattern of misconduct.

Without question, the type of misconduct underlying the

suspensi on was wholly unrelated to the grading deficiencies.

Indeed, the School BoardÓs letter suspending Ms. Boyd stated

that Ðfuture incidents of this natureÑ may result in

termination. Thus, utilizing the suspension as a basis to step

closer to termination wo uld be contrary to the notice given to

Ms. Boyd and to the concept that progressive discipline applies

to a related course of misconduct.

56 . As to the DepartmentÓs second contention that

Ms. BoydÓs conduct was severe enough to skip progressive

discipline , that is a question of ultimate fact for the

undersigned to determine based on the competent, substantial

record evidence. See Costin v. Fla. A & M Univ. Bd. of Trs. ,

972 So. 2d 1084, 1086 - 1087 (Fla. 5th DCA 2008) (holding that

ALJÓs finding as to whethe r employeeÓs misconduct justified

dismissal based on terms of the universityÓs progressive

discipline rule was Ðan Òultimate factÓ best left to the trier

of fact under these circumstances Ñ).

57 . The CBA does not define what Ðcourse of conductÑ or

Ðoffen seÑ is severe enough to meet the exception to progressive

discipline and the School Board presented no evidence on this

issue. Given that this is an exception, the undersigned

concludes that it must mean something more egregious than the

standard types of misconduct defined in rule 6A - 5.056 for which

progressive discipline must be followed. 9 /

5 8 . Determining the appropriate sanction in this case is a

close call. The School Board re - assigned Ms. Boyd to Wendell

Watson Elementary as a result of the five - d ay suspension at her

prior school. The SchoolÓs administration did not choose to

hire her and knew she had previously been suspended, and

Ms. Boyd perhaps reasonably felt like an unwelcome outsider. It

is tough not to feel sympathy for the difficult cir cumstances

she believed befell her, particularly given that she went on

medical leave just before the School Board sought to terminate

her. All of that aside, Ms. Boyd knew her job was in jeopardy

given the prior suspension and became c oncerned early on a bout

her sub par performance. While admittedly floundering in one of

the most critical functions of her job, she willfully failed to

get the help she so obviously needed. As a 17 - year teaching

veteran, s he knew better. And, worse yet, the students suffer ed

as a result of her failures.

5 9 . For all these reasons, and based on the evidence

presented, the undersigned finds the offense serious enough to

warrant termination under these particular facts. This finding,

reluctantly made given the failure to fo llow progressive

discipline, is in part due to the School BoardÓs discretion on

the issue of teacher discipline and in part due to the critical

importance of grading as a core duty for any teacher .

RECOMMENDATION

Based on the foregoing Findings of Fact , U ltimate Findings

of Fact, and Conclusions of Law, it is RECOMMENDED that

Petitioner, Polk County School Board, enter a final order

upholding its decision to dismiss Respondent, Stacia Boyd , from

her employment contract.

DONE AND ENTERED this 1 8 th day of De cember , 2018 , in

Tallahassee, Leon County, Florida.

S

ANDREW D. MANKO

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 1 8 th day of December , 2018 .

ENDNOTE S

1/ All rule and stat utory references are to the 2018 versions

unless otherwise indicated.

2/ R espondent only objected to PetitionerÓs Exhibit 7 Ï an email

from Assistant Principal Poe - Liburd to Ms. Boyd, dated

October 2, 2017, summarizing a conversation the two had about

the SchoolÓs numerous concerns Î and that objection focused

solely on the fac t that it contained hearsay statements of a

parent. Those hearsay statements were not considered in finding

the facts or recommending the appropriate penalty herein.

3 / The only record evidence of the facts surrounding the

suspension are two letters a dmitted as PetitionerÓs Exhibits 1

and 2 . PetitionerÓs Exhibit 1 is a letter dated June 13, 2018,

from Principal Kenyatta Feacher to Ms. Boyd , detailing the facts

of the incident from the SchoolÓs perspective and recommending

that the School Board suspend Ms. Boyd for five days without pay

Ðin accordance with the third step of Progressive Discipline.Ñ

PetitionerÓs Exhibit 2 is a letter dated July 28, 2017, from

Associate Superintendent Teddre Porteous, notifying Ms. Boyd

that her actions rose to the level of gross misconduct, that the

suspension constituted Step Three of progressive discipline, and

that Ðfuture incidents of this nature may result in additional

disciplinary action, up to and including termination.Ñ

These exhibits were admitted into evid ence without objection,

but there is no question that the two letters and much of the

details therein are hearsay. Hearsay is admissible in

administrative proceedings, but can only be used to explain or

supplement other admissible evidence; a finding of f act cannot

be based on hearsay alone unless that evidence would be

admissible in a civil action over objection. § 120.57(1)(c),

Fla. Stat . ; Fla. Admin. Code R. 28 - 106.213(3). Although the

parties stipulated that the suspension occurred and that

Ms. Boyd did not grieve it, their counselÓs arguments at the

hearing indicated a dispute as to exactly what happened Î e.g. ,

unbuttoning a button on the assistant principalÓs shirt v ersus

tasseling his tie. But neither party presented testimony as to

the facts su rrounding the suspension, for which the hearsay

letters could be used to explain or supplement, nor did the

School Board present evidence to establish the predicate

necessary to admit the letters or the information therein as

business records or via some o ther recognized exception to the

hearsay rule. See Wark v. Home Shopping Club , 715 So. 2d 323,

324 (Fla. 2d DCA 1998) (holding that hearsay documents could not

be used to support a finding of fact where no other supporting

evidence had been admitted and t he proponent of the hearsay

failed to establish the predicate necessary to admit the

evidence under the business records exception); Harris v. Game &

Fresh Water Fish Com mÓn , 495 So. 2d 806, 808 - 09 (Fla. 1st DCA

1986) (same).

The two hearsay letters an d the facts detailed therein, thus,

cannot be used to support findings of fact. That Ms. Boyd

failed to object to their admission on hearsay grounds matters

not in this context. Fla. Admin. Code R. 28 - 106.213(3 ) .

Accordingly, the facts found herein rela ting to the suspension

are based solely on the partiesÓ stipulation that a suspension

occurred for a May 2017 incident and that it was not grieved by

Ms. Boyd.

4/ The School BoardÓs Proposed Recommended Order (ÐPROÑ) focuses

almost entirely on the u ntimely grading issues in August - October

2017 and contends that such conduct constitutes Ðgross

insubordinationÑ and Ðwillful neglect of duty Ñ under section

1012.33(1)(a), which meets the definition of Ðjust causeÑ to

terminate. In fact, the School Board argued that this

misconduct was sufficient alone to fall under the CBA exception

for following progressive discipline. But the School Board also

noted at the end that it was ÐsignificantÑ that Ms. Boyd had

recently been suspended as Step Three discipline and that

termination was the next step, Step Four, of progressive

discipline. The School BoardÓs positions in this r egard will be

addressed in the Conclusions of L aw section below.

5/ Ms. Boyd had several absences during the first couple of

months of the school year as a result of a variety of medical

issues. However, the School Board presented no evidence that it

deemed these absences unexcused or that they in any way

supp orted the decision to terminate. Ms. Boyd went on medical

leave under the Family Medical Leave Act on October 4, 2017,

just before Principal Burgess recommended her termination.

6 / Although Ms. Boyd testified that she did not receive the

grading sheet and that the meeting only lasted 10 - 15 minutes,

Ms. RichardÓs conflicting testimony was more credible given the

level of detail with which she recalled the entire meeting and

the fact that Ms. Boyd signed an acknowledgment form at the

meeting.

Ms. Boyd also had been a teacher in Polk County for fifteen

years and agreed she was familiar with the Pinnacle system.

7 / Ms. Boyd never reached out to Principal Burgess specifically

about grades, but did reach out concerning some classroom

management issues. Ms. Richard worked with Ms. Boyd on those

issues.

8/ The School Board Ós termination letter did not reference the

statute or administrative rule that Ms. Boyd allegedly violated.

In fact, the School BoardÓs first reference to the applicable

law was in its PRO . This practice of failing to clearly state

the statutory violati on in the termination letter or reference

it at the final hearing should be avoided because of due process

concerns and how much more difficult it makes the process of

considering the testimony and resolving the dispute. However,

the termination letter he re sufficiently put Ms. Boyd on notice

of the alleged misconduct and, as such, no due process violation

occurred.

Even apart from not citing the statute and rule earlier in

the case, it cannot be ignored that t he School BoardÓs PRO

referenced older, no w inapplicable, administrative rules as the

bases for Ms. BoydÓs dismissal (Florida Administrative Code Rule

6 A - 5.053(4), (5)). In 1998, rule 6A - 5.053 was repealed and the

criteria for suspension and dismissal are now contained in rule

6A - 5.056, which def ines Ðgross insubordinationÑ and Ðwillful

neglect of dut y Ñ differently than the prior rule. Because rule

6A - 5.056 was in effect at the time of the underlying misconduct,

that rule and the definitions contained therein apply.

9 / Cases involving other CB As have referred to this type of

exception as requiring Ðsevere acts of misconduct,Ñ Quiller v.

Duval C ounty Sch ool B oard , 171 So. 3d 745, 746 (Fla. 1st DCA

2015) (citing the Duval County CBA), or circumstances Ðwhich

clearly constitute a real and immediat e danger to the District

or the actions/inactions of the employee constitute such clearly

flagrant and purposeful violations of reasonable School Board

rules.Ñ Palm Bch. Cty. Sch. Bd. v . Harrell , Case No. 16 - 6862

(Fla. DOAH Apr. 11, 2017). The CBAs in th ose cases admittedly

contain ed more stringent language than the CBA here.

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Donald H. Wilson, Jr., Esquir e

Boswell and Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1 244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Jacqueline Byrd, Superintendent

1915 S outh Floral Ave nue

Post Office Box 391

Bartow, Florida 33831

NOTICE O F 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.