18-006560TTS Broward County School Board vs. Diane Louise Neville Status: Closed Recommended Order on Wednesday, July 7, 2021.

Summary: Petitioner proved, by a preponderance of the evidence, that Respondent violated Department of Education rules and school board policies. Therefore, just cause exists to terminate her employment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B ROWARD C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 18 - 6560TTS

D IANE L OUISE N EVILLE ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a hearing was held in this case , pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2020), 1 by Zoom Conference,

on December 7 and 8, 2020, before Administrative Law Judge ( " ALJ " ) Cathy

M. Sellers of the Division of Admi nistrative Hearings ( " DOAH " ).

A PPEARANCES

For Petitioner: Elizabeth W. Neiberger, Esquire

B ryant Miller Olive, P.A.

Suite 2200

One Southeast Third Avenue

Miami, Florida 33131

For Respondent: Katherine A. Heffner, Esquire

Robert F. McKee, Esquire

Robert F. McKee, P.A.

Suite 301

1718 East Seventh Avenue

Tampa, Florida 33605

1 All references to chapter 120 are to the 2020 codification.

S TATEMENT OF T HE I SSUE

Whether just cause exists, pursuant to section 1012.33, Florida Statutes,

and as alleged i n the Administrative Complaint, to terminat e Respondent's

employment as a teacher .

P RELIMINARY S TATEMENT

On November 8, 2018, Robert Runcie, as Superintendent of Schools for

Broward County, filed an Administrative Complaint against Respondent,

Diane Loui se Neville, seeking to terminate her employment as a teacher with

the Broward County Public Schools ( hereafter, the " District " ). On

December 3, 2018, Respondent filed a Petition for Administrative Hearing.

Petitioner took agency action to terminate Respond ent's employment on

December 12, 2018.

The case was referred to DOAH for assignment of an ALJ to conduct an

administrative hearing pursuant to sections 120.569 and 120.57(1). The final

hearing initially was set for February 21 and 22, 2019 , but pursuant t o the

parties' request, was continued and rescheduled four times . The case was

then placed in abeyance on October 2, 2019, to enable the parties to settle the

case. Pursuant to the parties' request, the abeyance was extended six times.

On April 3, 2020, th e parties informed the undersigned that they were unable

to settle the case, and t he final hearing was rescheduled for September 23

and 24, 2020. Thereafter, pursuant to Petitioner's motion, the fi nal hearing

was again continued, and was rescheduled for De cember 7 and 8, 2020.

The final hearing was held on December 7 and 8, 2020. Petitioner

presented the testimony of Robert Pappas, Chandra Fitzpatrick,

Rashad Beals, Kathy Wernecke, and Michael English. Petitioner's Exhibit

Nos. 1 , 2 , 8A, 10 through 14 , an d 15E , were admitted into evidence without

objection . Petitioner's Exhibit Nos. 7A , 7 B , 8B , 9A through 9E , and 15A

through 15 D , were admitted into evidence over objection. 2 Official recognition

was taken of the Final Order and the incorporated Recommended Order in

DOAH Case No. 17 - 1180TTS, 3 which comprised a portion of Petitioner's

Exhibit No. 3 . 4 Respondent testified on her own behalf and did not tender any

exhibits for admission into evidence.

The two - volume Transcript of the final hearing was filed at DOAH on

January 5, 2021. Pursuant to Florida Administrative Code Rule 28 - 106.216,

the deadline for filing proposed recommended orders ( " PROs " ) initially was

set for January 15, 2021. However, pursuant to the parties' motions, the

deadline for filing PROs w as twice extended , to February 15, 2021, and

February 24, 2021. The parties timely filed their PROs on February 24, 2021 .

B oth PROs have been duly considered in preparing this Recommended Order.

2 The remaining portions of Petitioner's Exhibit Nos. 7 through 9, and 15 were not admitted

into evidence.

3 Respondent cannot be subjected to discipline for previous violations of statutes, rules, or

policies for which s he already has been disciplined. See Dep't of Bus. & Prof'l Reg . v.

Villarreal , Case No. 11 - 4156 (Fla. DOAH Dec. 19, 2011; Fla. DBPR Oct. 2, 2012)(multiple

administrative punishments cannot be imposed for a particular incident of misconduct).

However, under School Board Policy 4.9, section III, the history of disciplinary corrective

actions is relevant to determining th e appropriate penalty, if any, to be imposed in these

proceedings . Therefore , official recognition was taken of the Final Order and the

incorporated Recommended Order in DOAH Case No. 17 - 1180TTS solely for the purpose of

determining the penalty to be impos ed in this proceeding.

4 The remaining portion of Petitioner's Exhibit 3 was not tendered or admitted into evidence.

F INDINGS OF F ACT

I. The Parties

1. Petitioner is the entit y charged with operating , control ling, and

supervising free public schools in Broward County, pursuant to article IX,

section 4(b) of the Florida Constitution, and section 1012.33 . 5

2. At all times relevant to this proceeding, Respondent was employed by

P etitioner as a teacher in the District.

II. Evidence Adduced at the Final Hearing

3. Respondent was hired by Petitioner as a teacher in August 1998.

4. During the 2018 - 2019 school year, when the conduct giving rise to this

proceeding is alleged to have o ccurred, Respondent was employed as a

technology teacher at Gulfstream Academy of Hallandale Beach (K - 8)

( " Gulfstream " ) .

5. In the 2018 - 2019 school year for the District, t he first day of work for

teachers was August 8, 2018 , and the first day of school f or students was

August 15, 2018. 6

6. Robert Pappas, the P rincipal at Gulfstream, testified that Respondent

came to Gulfstream's campus two days before teachers were to report to work

for the 2018 - 2019 school year. Pappas testified that, based on a convers ation

he had with Respondent at that time , he felt " a bit concerned, " and that " she

did not seem her normal self. "

7 . Respondent did not report to work on August 8, the first day of teacher

preplanning, or for the following two days.

8 . On August 8, Resp ondent reported to Kathy Wernecke, the Office

Manager for Gulfstream, that her car had been run off the road in

5 All references to chapter 1012 are to the 2018 version, which was in effect at the time of the

alleged conduct giving rise to this proc eeding.

6 The events giving rise to this proceeding occurred in August and September 2018, unless

otherwise stated. For brevity, the year "2018" is not hereafter repeatedly stated in this

Recommended Order.

Punta Gorda, Florida. On August 10, Respondent again contacted Wernecke,

stating that her home in West Park, Florida, had been broken into and

r ansacked.

9 . On August 13 , Respondent reported to work at Gulfstream. She slipped

on water on the floor of her classroom caused by a leaking air conditioner and

fell . Emergency response was contacted, and Respondent was transported to

a hospital. She was l ater released and reported back to work at the school the

same day, with a dog which she identified as her service dog. The dog was not

wearing a vest indicating that it was a service dog.

10 . On August 14, the day before students returned to campus for t he first

day of school, school staff were in the school's south campus cafeteria ,

attending workshops. Pappas went to the cafeteria and saw Respondent

dancing in the middle of the cafeteria , during a presentation being made as

part of a workshop . Numerous people wer e present in the cafeteria, and,

according to Pappas, ma ny of them looked uncomfortable. Pappas said that

her dancing was not " inappropriate, " but, under the circumstances, was

" peculiar. "

11 . Rashad Beals, the Gulfstrea m Security Manager for th e south campus,

corroborated Pappas' s testimony regarding Respondent dancing in the

cafeteria on A ugust 14 during a workshop presentation.

12 . Respondent had brought a dog to work with her that day, and it was

with her in the cafeteria. It was not wearing a service animal vest.

13 . Thereafter, Pappas met with Respondent in his office to discuss her

having brought a dog onto the campus that day. He explained that if she

needed to have a service dog accompany her to work, she was entitled to do

so, but she needed to complete the required paperwork in order to have the

dog in the classroom with students present . He stated that if she needed the

dog to accompany her to work, he would provide a substitute teacher and

would find her office space where she could work without being with students

while the service animal paperwork for her dog was being processed .

14 . Based on Pappas's discussion with Respondent, it was his

understanding that Respondent was going to complete and submit the

paperwork required for her to have the dog accompany her in the classroom

when students were present.

15 . Pappas testified, credibly, that during the meeting, Respondent made

several statements about her personal life that were inappropriate in a

professional setting Ð specifically, that she liked to dance in the nude; that

her mother was a high - paid prostitute; that her father was in the Mafia; and

that drug addicts had taken over her home s in Panama City and West Park .

Pappas testified that Respondent's overall demeanor was inconsi stent , and

that she seemed very anxious and " discombobulated . "

16 . Additionally, Beals and Wernecke, both of whom were present at

Pappas's meeting with Respondent on August 14, corroborated Pappas's

testimony regarding the tone and substance of Respondent 's statements

during th e meeting . 7

17 . At the meeting, Respondent claimed, among other things, that she had

set up a community homeless shelter in Panama City , and was known for

having done so ; that her Jaguar had been stolen; that she worked at a prison;

and that she was a girl, as well as a 33 - year Navy Chief. She also stated that

she owned a home on Fletcher S treet in Hollywood, which had been broken

into, and that she had been sexua lly assaulted two days ago. She also stated

that she was married to a mi llionaire for 22 years , and that when he refused

to loan her money to purchase the community center, she divorced him.

18 . Pappas asked Respondent if she wished to contact the District's

Employee Assistance Program, but she refused .

19 . After the August 1 4 meeting was over, Beals and Officer Michael

English, the school d etective, walked with Respondent to the school parking

7 Additionally, Wernecke took notes at the Aug ust 14 meeting and a subsequent meeting held

on August 2 1 . T hose notes, which supplemented her testimony at the final hearing , were

admitted into evidence as Petitioner's Exhibit No. 8B.

lot. Pursuant to Pappas's direction, Respondent gave her lanyard and room

keys to English.

20 . As a result of Respondent's behavior , P appas wrote a " Fit for Duty "

memorandum to the District's Director of Risk Management on August 15,

describing Respondent's behavior between August 8 and August 1 4 .

21 . Respondent did not report to work on A ugust 15 Ð which was the first

day for students Ð or on August 16 or 17, and she did not request leave

through the appropriate process.

22 . On or about August 15, Respondent contact ed Office r English to let

him know that she was taking vacation Ð she claimed, pursuant to Pappas's

suggestion Ð and was driving t o North Carolina .

23 . On August 1 6 , Pappas informed Respondent, by email , that she was

not approved for personal leave, and that if she did n ot report to work by

August 20, she would be considered to have abandoned her job.

24 . On August 17, Respondent c alled the Gulfstream office to let

Wernecke know that she was taking five weeks of sick leave. 8 In the course of

the discussion , Respondent told Wernecke that her fiancé was with her , and

that she was taking him to a doctor's appointment in Virginia . Respo ndent

also stated that she would not be returning to her West Park home because

crack addicts were living there, and that she had reported the matter to the

police , but they told her that it was " her problem. " She told Wernecke that

she had given full powe r of attorney to a colleague with whom she had

worked at the prison, so that if anyone from the school needed to reach her,

they needed to contact the person to whom she had given power of attorney.

She mentioned that she would be back at school on Septemb er 22.

25 . On August 20, Respondent spoke with Wernecke to let her know that

she ( Respondent ) was back in West Palm Beach; that her rental car was

about to run out of gas; that someone was going to send her $1,000.00 by

8 Respondent did not follow the required process for taking sick lea ve.

Western Union, but that she had to have that person committed for abuse

she had witnessed; that she was trying to get a tracking number on the

money transfer ; and that she had visited four " slum " Western Union

facilities, but could not get her money. She also asked if her car was at school ,

and stated that she had it towed there and had placed a cover over it, because

she could not leave it at her home because of the crack addicts occupying her

home. She stated that she was homeless until her in - laws returned.

26 . Respondent reported to wo rk late on August 20. She was

inappropriately dressed for school , and was not prepared to teach. She did

not teach that day, and left the campus shortly after she arrived.

27 . Respondent reported to work on August 21, 2018. Pappas met with

Respondent that day, to discuss the paperwork required for Respond ent to

bring her dog to school. Wernecke was present at the meeting, and, a t

Respondent's request, a teacher's union representative also attended the

meeting.

28 . At the meeting, Respondent made clear tha t she needed the dog with

her, but she had not submitted the completed paperwork. 9 Pappas told her

that it was no t necessary for her to take the days off during which the

paperwork was being processed, and that he would provide a place for her to

work at t he school.

29 . During the meeting, Respondent again began discussing personal

matters. She mentioned her parents' professions , and that her houses were

inhabited by drug addicts. She also stated that her future millionaire

husband was a violent schizophre nic who abused her; that she had been

asked 15 years ago, by his family, to be a part of his life and take care of him;

that he has had five driving - under - the - influence incidents; and that she still

was marrying him in September. She also remarked that she would not kill

anyone. She talked about a blood clot traveling through her body , and stated

9 The credible evidence establishes that Respondent did not, at any point, submit completed

paperwork authorizing her to have a service dog wit h her on campus while teaching.

that she could not eat and was losing weight. She exhibited bruises on her

arms, and at one point, lifted her shirt to show that she had bruises on her

body.

30 . When Pappas and Wernecke asked if they could call 911 and

suggested that she see her doctor, she refused, stating that she would use

days off to take care of the paperwork for her dog and get better.

31 . Pappas described her demeanor in the August 2 1 meet ing as often

" loud " and " aggressive. "

32 . After the meeting concluded , Respondent left the campus for the rest

of the day , and did not teach her classes .

33 . As previously noted, Pappas had requested that the District require

Respondent to undergo a F itnes s for D uty E valuation.

34 . On August 21, the District's Director of the Ris k Management

Department for the District sent a letter to Respondent, by certified mail and

overnight delivery, ordering her to attend a Fitness for Duty Conference on

the Gulfstrea m north campus on Thursday, August 23 .

35 . Respondent did not attend the scheduled Fitness for Duty Conference

on August 23. She provided no explanation as to why she did not attend the

conference.

36 . As a result of her failure to attend the Fitness for Duty Conference,

Respondent was informed , by letter dated August 23 and sent again on

August 29 , that she would be required to undergo a Fitness for Duty

Evaluation. The letter, which was signed by the District's Director of Risk

Management, directed her to choose a physician, with optional second and

third choice s , from the list provided, and to contact the District's Employee

Health Testing Specialist, Julianne Gilmore, who would make the

appointment. Importantly, this letter informed Respondent that " [f ]ailure to

do so will be deemed gross insubordination leading to disciplinary action up

to and including termination. "

37 . The letter also directed Respondent not to return to Gulfstream unless

directed to do so by Risk Management. She was directed to rem ain at home,

with pay, pending the outcome of the Fitness for Duty psychological

examination.

38 . Gilmore scheduled the Fitness for Duty Evaluation appointment

with Respondent's first choice of physicians, Dr. Robert Wernick, for

September 17.

39 . Respond en t was notified, by certified mail dated September 5, of the

date, time, and location of the appointment. The letter stated: " Note: This is a

mandatory appointment and your failure to attend can result in disciplinary

action up to and including terminatio n of employment for failure to comply

with School Board Policy 4004. "

40 . On September 13, Respondent contacted Gilmore by email at

approximately 5:30 p.m. , requesting that she be provided transportation to

the appointment because her right arm was immobil ized. Gilmore responded

at 5:42 p.m., informing Respondent that the District did not transport

employees to their appointments, so that she would need to make other

arrangements as necessary to ensure her attendance at the appointment.

41 . Respondent did not attend the Fitness for D uty evaluation

appointment on S eptember 17, nor did she contact the District to inform

anyone that she was unable to attend the appointment.

42 . Respondent testified, at the final hearing, that she had requested

transportation because " my right arm stopped working, and I was taken to

the emergency room, and they said my arm had to be immobilized until I

could go to an orthopedic doctor. . . . That was about three or four days before

the fitness for duty exam. "

43 . However, when asked on cross - examination when the condition with

her arm started, Respondent testified " I don't know. " Further, w hen asked

when she went to the emergency room regarding her arm, and whether she

went to the emergency room when the condition first started , she responded

" I am not sure. "

44 . Additionally, Respondent testified, in her deposition, that it was her

left arm , rather than her right arm, that had been injured as a result of

falling in the classroom on August 13, and needed to be immobilized .

45 . Respondent also testified at the final hearing that she had tried to

reschedule the appointment , but was told that the District was unable to

reschedule the appointment . However, there is no evidence corroborating

Respondent's claim that she attempted to r eschedule the appointment, or

that she was told that the appointment could not be rescheduled.

46 . On balance, Respondent's testimony regarding the reason why she

failed to appear for the Fitness for Duty Evaluation on September 17 is not

deemed credible.

47 . Respondent previously has been subjected to discipline by Petitioner.

Specifically, pursuant to the Final Order and the incorporated Recommended

Order in DOAH Case No. 17 - 1180TTS, Respondent was suspended, without

pay, for 15 days.

48 . Following Res pondent's failure to appear for the Fitness for Duty

Evaluation, Superintendent Runcie served Respondent with the

Administrative Complaint initiating this proceeding .

III. Findings of Ultimate Fact

49 . Respondent has been charged in this case with miscon duct in office,

incompetency, gross insubordination, and willful neglect of duty under

Florida Administrative Code Rule 6A - 5.056 ; and with violating School Board

P olicies 4004, 4008, and 4.9.

50 . Whether a charged offense constitutes a violation of applica ble rules

and policies is a question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. McKinney v. Castor , 667 So. 2d 387,

389 (Fla. 1st DCA 1995)(whether particular conduct constitutes a violation of

a statut e, rule, or policy is a factual question); Langston v. Jamerson , 653 So.

2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a

violation of statutes, rules, and policies is a question of ultimate fact); Holmes

v. Turlington , 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a

deviation from the standard of conduct is not a conclusion of law, but is ,

instead , an ultimate fact).

Rule 6A - 5.056(2) Ï Misconduct in Office

51 . Respondent engaged in misconduct in office , as defined in

rule 6A - 5.056( 2) .

52 . Specifically, Respondent's attendance at work was unreliable. She was

absent, without approved leave, during the first week of school for students.

Moreover, when she did return on August 20, she came to work late,

inappropriately dressed, and unprepared to teach. This conduct was

disruptive of her students' learning environment , in violation of

rule 6A - 5.056( 2)(d) .

53 . Additionally, Respondent's lack of reliability with respect to her

attendance at work reduced her ability to effe ctively perform her teaching

duties , in violation of rule 6A - 5.056(2)(e).

54 . Moreover, as discussed below, it is determined that Respondent

violated School Board policies 4004 and 4008, and, thus, engaged in

misconduct in office under rule 6A - 5.056(2)(c).

Rule 6A - 5.056(3) - Incompetency

55 . Respondent's conduct also constituted incompetency by inefficiency

under rule 6A - 5.056(3)(a).

56 . Specifically, her absence s from, and tardiness to, work, without having

obtained approval to take leave, constituted e xcessive absences and

tardiness , and failure to perform duties prescribed by law.

57 . Additionally, h er absences from, and tardiness to, work, as well as her

failure to attend the Fitness for Duty C onference and Fitness for Duty

Evaluation Ð both of which s he had been ordered to attend Ð constituted the

failure to perform duties prescribed by law.

58 . Moreover, Respondent's conduct in the August 14 and 2 1 meetings,

during which she disc ussed numerous personal matters, including intimate

matters concerning her family and matters of a sexual nature, constituted a

failure to communicate appropriately with her colleagues and administrators.

59 . Respondent's conduct also constituted incompetency by incapacity

under rule 6A - 5.056(3)(b).

60 . Specifically, Respondent's conduct in the August 14 and 2 1 meetings ;

as well as her conduct in dancing during a pre - planning workshop, which was

inappropriate for the work - oriented setting ; and her telephone discussions

with Wernecke while she was absent without having been approve d to take

leave, evidence that she lacks emotional stability . Thus, it is determined that

Respondent is incompetent by incapacity .

Rule 6A - 5.056(4) Ï Gross Insubordination

61 . Respondent's conduct in failing to attend the Fitness for Duty

Conference on A ugust 23 and the Fitness for Duty Evaluation on

September 17 constituted gross insubordination.

6 2 . Both the August 21 letter ordering Respondent to attend a Fitness for

Duty Conference on August 23, and the August 23 letter sent again on

August 29, orde ring Respondent to attend a Fitness for Duty Evaluation,

constituted direct orders by the District's Director of Risk Management, who

was imbued with the proper authority to issue such orders to implement

School Board Policy 4004 . Given Respondent's conduc t described herein ,

which gave rise to Pappas's request for the evaluation , it is determined that

these direct orders were reasonable in nature.

6 3 . Moreover, Respondent was expressly informed , in the August 23 letter

ordering her to attend the Fitness fo r Duty Evaluation appointment on

September 17 , that her failure to do so would be deemed gross

insubordination, which would lead to disciplinary action , up to and including

termination. Nevertheless , Respondent did not attend the appointment .

6 4 . As discu ssed above, there is no credible evidence showing that , once

Respondent was informed that the District would not provide transportation

to the September 17 appointment, she made any effort to secure other

transportation to the appointment.

6 5 . For these reasons, it is determined that Respondent's conduct , in

failing to attend the August 23 Fitness for Duty Conference and the

September 17 Fitness for Duty Evaluation, constituted gross insubordination

under rule 6A - 5.056(4).

Rule 6 A - 5.056(5) Ï Willful Negl ect of Duty

6 6 . Respondent's unexcused absences from work at the beginning of the

2018 - 2019 school yea r, including during the first week of school for the

students, constituted an intentional failure to carry out her required duties. 10

6 7 . Additionally, for the reasons discussed above, R espondent's actions in

failing to attend the Fitness for Duty Conference and the Fitness for Duty

Evaluation constituted an intentional failure to carry out duties required by

her employment with the District .

6 8 . Accord ingly, it is determined that Respondent 's conduct constituted

willful neglect of duty under rule 6A - 5.056(5).

School Board Policy 4004

6 9 . School Board Policy 4004, set forth below, requires District employees

to take a physical or psychological examinati on when deemed advisable by

the superintend ent or his or her designee. Here, Pappas determined, based

on Respondent's conduct that he witnessed, that Respondent should be

required to take a Fitness for Duty Evaluation, pursuant to School Board

Policy 4004.

10 "Intentional" is defined as "done with intention" or "on purpose." Dictio nary.com,

https://dictionary.com /browse /intentional# (last visited July 6 , 2021). The evidence

establishes that Respondent's action s in missing work were done " on purpose , " in the sense

that they were not accidental. To that point, t here was no evidence pr esented from which it

reasonably can be inferred that Respondent's actions in missing work were accidental .

70 . Respondent did not take the Fitness for Duty Evaluation that had

been ordered and scheduled for her.

7 1 . To the extent Respondent attempted to explain why she did not attend

the September 17 Fitness for Duty Evaluation appointment , that explanation

was not credible.

7 2 . In her PRO , Respondent attempts to justify her failure to undergo the

Fitness for Duty Evaluation , ordered by the District's Risk Manager , by

noting that she previously had completed a Fitness for Duty Evaluation i n

January 201 8, pur suant to a request by the Florida Department of

Education , and had been deemed fit for duty .

7 3 . Respondent's previous compliance with an order from the Florida

Department of Education Ð a completely separate entity Ð at an earlier time ,

is beside the point. Here, Respondent's direct supervisor determined, based

on behavior he observed, that Respondent should be required to undergo a

Fitness for Duty Evaluation pursuant to School Board Policy 4004.

Respondent was ordered by the District to undergo the evaluati on, and an

appointment for the evaluation was scheduled for her. She failed to attend

that appointment, and demonstrated no credible basis for doing so.

7 4 . Respondent's failure to take the Fitness for Duty Evaluation

constitutes a violation of School Boar d Policy 4004.

School Board Policy 4008

7 5 . School Board Policy 4008, set forth in relevant part, below, requires a ll

employees of Petitioner who have been issued contracts to comply with,

among other things, Florida Department of Education rules and appl icable

School Board policies.

7 6 . As found above, Respondent violated provisions of rule 6A - 5.056 and

did not comply with School Board Policy 4004. Accordingly, it is determined

that she violated School Board Policy 4008.

C ONCLUSIONS OF L AW

7 7 . DOAH ha s jurisdiction over the parties to, and subject matter of, this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

7 8 . T his de novo proceeding is designed to formulate agency action, not

review agency action taken earlier and preliminarily. Dep't of Transp. v.

J.W.C. Co. , 396 So. 2d 778, 785 (Fla. 1st DCA 1981); Capelleti Bros., Inc. v.

Dep't of Transp. , 362 So. 2d 346, 348 (Fla. 1st DCA 1978); McDonald v. Dep't

of Banking and Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA 1977). Accordingly,

the purpose of this pr oceeding is to determine anew, based on the competent

substantial evidence in the record, whether just cause exists to terminate

Respondent 's employment as a teacher with the District.

7 9 . Respondent is classified as " instructional personnel, " as that term is

defined in section 1012.01(2).

80 . Section 1012.33(6)(a) states, in pertinent part: " any member of the

instructional staff may be suspended or dismissed at any time during the

term of the contract for just cause as provided in paragraph (1)(a). "

8 1 . " Just cause " is " cause that is legally sufficient. " Fla. Admin. Code

R. 6A - 5.056. Just cause includes, but is not limited to, misconduct in office ,

incompetency , gross insubordination, and willful neglect of duty .

§ 1012.33(1)(a), Fla. Stat.

8 2 . In order to suspend and terminate Respondent's employment as a

teacher, Petitioner must prove that she committed the conduct alleged in the

A dministrative C omplaint; that the alleged conduct violates the statutes,

rules, and policies cited in the A dministrative C om plaint; and that the

violation of these statutes, rules, and policies constitutes just cause to

suspend and terminate her employment. See Dileo v. Sch. Bd. of Dade Cty. ,

569 So. 2d 883 (Fla. 3d DCA 1990) ; Balino v. Dep't of HRS , 348 So. 2d 349,

350 (Fla. 1 st DCA 1977)(unless provided otherwise by statute, the burden of

proof is on the party asserting the affirmative of the issue). It is axiomatic

that conduct not specifically charged in the A dministrative C omplaint cannot

constitute the basis for disciplina ry action. See Cottrill v. Dep't of Ins. , 685 So.

2d 1371, 1372 (Fla. 1st DCA 1996).

8 3 . The standard of proof applicable to these proceedings is a

preponderance, or greater weight, of the evidence. McNeill v. Pinellas Cty.

Sch. Bd. , 678 So. 2d 476, 477 (F la. 2d DCA 1996); Dileo , 569 So. 2d at 884.

Rule 6A - 5.056

8 4 . Rule 6A - 5.056, Criterial for Suspension and Dismissal, states, in

pertinent part:

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

following:

* * *

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the studentÔs learning

environment;

(e) Behavior that reduces the teacher's ability . . . to

effectively perform duties.

* * *

(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;

* * *

3. Failure to communicate appropriately with and

relate to coll eagues, administrators, subordinates,

or parents;

* * *

5. Excessive absences or tardiness.

(b) " Incapacity " means one or more of the following:

1. Lack of emotional stability;

* * *

(4) " Gross insubordination " means the intentional

re fusal 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) " Willful neglect of duty " means intentional or

reckless failure to carry out required duties.

8 5 . Based on the foregoing Findings of Fact, it is concluded that

Respondent engaged in misconduct in office pursuant to rule 6A - 5.056(2); i s

incompetent, as provided in rule 6A - 5.056(3); engaged in gross

insubordination, as pr ovided in rule 6A - 5.056(4); and engaged in willful

neglect of duty, as provided in rule 6A - 5.056(5).

School Board Policy 4004

8 6 . School Board Policy 4004, titled " Physical and/or Psychological

Examination, " states:

At any time during the course of employ ment when

it shall be deemed advisable by the

superintendent/designee, an employee may be

required to take a physical or psychological

examination.

RULES

1. The Board authorizes the Superintendent to

establish procedures to carry out the intent of this

policy.

2. The affected employee shall select the name of a

medical doctor, psychologist or psychiatrist from a

list maintained by the Division of Personnel,

Policies, Government and Community Relations.

3. Where the employee is found to be unable to

function satisfactorily, the Division of Personnel,

Policies, Government and Community Relations

shall take appropriate action.

8 7 . Based on the Findings of Fact, above, it is concluded that Respondent

violated School Board Policy 4004.

8 8 . Accordingly, it is concluded that just cause exists, pursuant to

section 1012.33(1)(a), to terminate Respondent's employment for having

violated School Board Policy 4004.

School Board Policy 4008

8 9 . School Board Policy 4008, titled Responsibilities and Duties

(Princi pals and Personnel), states, in pertinent part:

All employees of the Board who have been issued

contracts as provided by Florida Statutes, or

annual work agreements as provided by the

Board[,] shall comply with the provisions of the

Florida School Code, St ate Board regulations[,] and

regulations and policies of the Board.

* * *

B. Duties of Instructional Personnel

The members of instructional staff shall perform

the following functions:

* * *

8. Conform to all rules and regulations t hat may be

prescribed by the State Board and by the School

Board.

9 0 . Based on the Findings of Fact, above, it is concluded that Respondent

violated School Board Policy 4008.

9 1 . Accordingly, it is concluded that just cause exists, pursuant to section

10 12.33(1)(a), to terminate Respondent's employment for having violated

School Board Policy 4008.

School Board Policy 4.9

9 2 . School Board Policy 4. 9 , titled Corrective Action , 11 states, in pertinent

part:

Employees are expected to comply with workplace

polic ies, procedures and regulations; local, state,

and federal laws; and State Board Rules, both in

and out of the work place.

The DistrictÔs corrective action policy is designed to

improve and/or change employeesÔ job performance,

conduct, and attendance. S upervisors are

encouraged to continually provide coaching,

counseling, feedback and/or additional support to

help ensure each employeesÔ success. It is the intent

of the School Board to treat all employees fairly

and equitably in the administration of corr ective

action, while also ensuring employees are held

accountable and responsible for the expectations of

their position.

This policy applies to all District employees except

temporary and substitute employees.

* * *

DEFINITIONS

For purposes of this policy, the terms: . . . " Just

Cause " is defined as a standard of reasonableness

11 Petitioner also charged Respondent with " violating " School Board P olicy 4.9 . The "Intent &

Purpose" section of the policy that states: "[e]mploy ees are expected to comply with

workplace policies, procedures and regulations; local, state, and federal laws; and State

Board Rule, both in and out of the workplace." The Intent & Purpose section of School Board

P olicy 4.9 further stat es: "[t]he District 's corrective action policy is designed to improve

and/or change employees' job performance, conduct, and attendance." This context makes

clear that School Board Policy 4.9 prescribes the type of discipline appropriate to be imposed

for the specified offen ses, rather than establishing a separate enforceable standard of

conduct that is in addition to the standards of conduct established in other school board

policies . Consistent with the concept of improving or changing employee job performance,

conduct, or attendance, School Board P olicy 4.9 identifies categories of offenses and the

appropriate type or range of discipline that may be imposed if the employee is shown to have

engaged in conduct constituting that offense. See Broward Cty. Sch. Bd. v. Dudley , DO AH

Case No. 18 - 6215 (Fla. DOAH July 17, 2019), at ¶ 73, modified in part , BCSB Case No.

10 - 22 - 19 - 1 (BCSB Dec. 20, 2019)(modified only as to penalty imposed ).

used to evaluate whether a preponderance of

evidence exists that a person has committed the

alleged act or acts, and that the alleged act or acts

warrant corrective a ction .

I. CORRECTIVE ACTION

(a) In dealing with employee misconduct, corrective

action shall be issued except in situations where

immediate steps must be taken to ensure

student/staff safety and loss prevention.

(b) The types of corrective action may include, but

are not limited to the following employment

actions: verbal reprimands, written reprimands,

suspension without pay, demotion, or termination

of employment. There are other types of actions to

encourage and support the improvement of

employee p erformance, conduct or attendance that

are not considered disciplinary in nature. These

actions may include, but are not limited to:

coaching, counseling, meeting summaries, and

additional training .

* * *

(d) There are other acts of misconduct (S ee Section

II, Category B) considered to be so egregious,

problematic or harmful that the employee may be

immediately removed from the workplace until

such time a workplace investigation is completed.

The severity of the misconduct in each case,

together w ith relevant circumstances (III (c)), will

determine what step in the range of progressive

corrective action is followed. In most cases, the

District follows a progressive corrective action

process consistent with the " Just Cause " standard

designed to give employees the opportunity to

correct the undesirable performance, conduct or

attendance. A more severe corrective measure will

be used when there is evidence that students,

employees, or the community we serve was

negatively impacted. It is the intent tha t employees

who engage in similar misconduct will be treated as

similarly situated employees and compliant with

the principle of Just Cause .

(CATEGORY B) OFFENSE OUTCOME

* * *

m) Any violation Reprimand /Dismissal

of The Code of Ethics of

the Education Profession

in the State of Florida -

State Board of Education

Administrative Rule

9 3 . Given that Respondent previously has been suspended from her

employment without pay for 15 days, and based on Petit ioner's progressive

discipline policy established in Policy 4.9, it is concluded that the appropriate

penalty for having committed the violations of rule 6A - 5.056 and School

Board P olicies 4004 and 4008 charged in the Administrative Complaint is to

termina te Respondent's employment as a teacher with the District.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Petitioner, Broward County School Board, enter a Final

Order in this proceeding terminating R espondent's employment as a teacher.

D ONE A ND E NTERED this 6th day of July , 2021 , in Tallahassee, Leon

County, Florida.

S

C ATHY M. S ELLERS

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl .us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July , 2021 .

C OPIES F URNISHED :

Robert F. McKee, Esquire Ranjiv Sondhi, Esquire

Robert F. McKee, P.A. Br yant Miller Olive, P.A.

1718 E ast Seventh Avenue, Suite 301 One Southeast Third Avenue , Suite 2200

Tampa, Florida 33605 Miami, Florida 33131

Denise Marie Heekin, Esquire Katherine A. Heffner, Esquire

Bry ant Miller Olive, P.A. Robert F. McKee, P.A.

One Southeast Third Avenue , Suite 2200 1718 E ast Seventh Avenue, Suite 301

Miami, Florida 33131 Tampa, Florida 33605

Elizabeth W. Neiberger, Esquire Richard Corcoran

Bryant Miller Olive, P.A. Commissioner of Education

One Southeast Third Avenue , Suite 2200 Department of Ed ucation

Miami, Florida 33131 Turlington Building, Suite 1514

325 West Gaines Street

Robert W. Runcie, Superintendent Tallahassee, Florida 32399 - 0400

Broward County Sch ool Board

600 Southeast Third Avenue, Tenth Floor

Fort Lauderdale, Florida 33301 - 3125

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exce ptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.