19-000239 Miami-Dade County School Board vs. Carla D. Mccray Status: Closed Recommended Order on Monday, June 3, 2019.

Summary: MDCSB proved just cause existed to terminate school safety monitor for misconduct in office and gross insubordination for refusal to submit to a fitness-for-duty evaluation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 19 - 0239

CARLA D. MCCRAY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice , a forma l administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy by

video teleconference with locations in Miami and Tallahassee ,

Florida , on March 1, 2019 .

APPEARANCES

For Petitioner: Christopher J . La Piano , Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 430

Miami , Florida 33132

For Respondent: Catherine A . Riggins , Esq uire

18520 N orthwest 67th Ave nue , Suite 105

Miam i , Florida 33015

STATEMENT OF THE ISSUE

Whether Miami - Dade County School Board ("MDCSB") had just

cause to suspend and recommend the terminat ion of Respondent ,

Carla McCray 's ("McCray" or "Respondent" ), employment for the

reasons set forth in the a gency action letter dated December 20 ,

2018 .

PRELIMINARY STATEMENT

On December 18, 2018, at its scheduled meeting , MDCSB took

action to suspend and terminate McCray from her p osition as a

school security monitor at Miami Senior High School ("MSHS").

McCra y timely requested an administrative hearing . MDCSB

referred the matter to the Division of Administrative H earings

("DOAH") on January 14, 2019, to assign an Administrative Law

Judge to conduct the final hearing . The final hearing was set

for March 1, 20 19, and was heard as scheduled.

At the final hearing , MDCSB presented the testimony of the

following : Dwight Arscott, A ssistant Principal, MSHS;

Benny Valdes, Principal, MSHS; and Carmen Molina, District

Director, Office of Professional Standards ("O PS") . MDCSB

Exhibits 1 through 10 and 15 through 25 were received into

evide nce.

McCray testified on her own behalf and offered the

testimony of Evelyn Dopico, former mathematics teacher and union

steward at MSHS. McCray's Exhibits 1 through 8 were adm itted

into evidence.

The one - volume final hearing Transcrip t was filed on

April 17, 2019. MDCSB requested and was granted an extension of

time for the parties to file proposed recommended orders. The

parties timely filed proposed recommended orders , wh ich were

given consideration in the preparation of this Recommended

Order .

Unless otherwise indicated , all rule and statutory

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

alleged violations .

FINDING S OF FACT

1 . MDCSB is a duly - constitu ted school board charged with

the duty to operate , control , and supervise the public schools

within Miami - Dade County , Florida .

2 . At all times material to this case , McCray was employed

by MDCSB as a school security monitor at MSHS, a public school

in Mi ami - Dade County , Florida , and served in that capacity since

1998.

3. Respondent ' s employment with MDCSB is governed by

Florida law , MDCSB' s policies , and the collective bargaining

agreement ("CBA") between MDCSB and the United Teachers of Dade

Union .

4. As a school security monitor, McCray's duties included

assisting students, assisting with student/staff altercations,

protecting the school from intruders, and to generally protect

the safety of everyone in the school.

5. The proposed discipline is ba sed upon McCray's repeated

refusal to submit for a fitness - for - duty evaluation after

repeated instructions to do so.

Facts G iving Rise to the Fitness - for - D uty Evaluation Request

6. In March 2018 , the Office of Professional Standards

( " OPS " ) for Miami - Dade County Public School ( " MDCPS " ) received a

call from Marian Lambeth , the Chief of the Professional

Practices Commission of the Florida Department of Education .

She advised OPS that McCray sent the Commission correspondence

en titled " Criminal Miscondu ct Complaints and Willful

Violatio ns ," which was 322 pages. The lengthy , repetitious , and

disjointed c orrespondence describes a variety of alleged " cyber

intern et crimes , " including inter cyber - bullying , cyber -

harassment , and cyber - stalking . The volumino us " complaint "

lists alleged infractions dating back for at least ten yea rs.

This bizarre document caused OPS and Distric t Director

Carmen Molina to be c oncerned for McCray's well - being and

essentially put McCray on the District ' s " radar ."

7. McCray previously made simil arly odd computer - related

complaints in December 201 6 to Assistant Principal

Dwight Arscott . She told him people were taking control of

computers she was using an d logging her out of District

computers . Mr . Arscott contacted the MSH S Information

Technology Services ( " ITS " ) department and also school police .

McCray's complaint was investigated and found to be without any

merit.

8. McCray again made similar complaints to Mr . Arscott in

January 2017 , and this time he referred h er to school police

because, in McCray's opinion , ITS had not done a sufficient job

of investigating the matter . Again, no problem was discove red

regarding McCray's district - issued computers or accounts.

9. At the start of the 2018 - 2019 school year , M cCray

expressed to Mr . Arscott that she did not feel safe using school

email systems and requested that he contact her through her

personal Yahoo email address . She expressed that she did not

want to use the District email because she was being

c yber - b ul lied and harassed and did not feel safe using it . As a

result she was experiencing " distress ."

10. McCray memorialized her concerns in emails she sent

to Mr . Arscott and other MSHS adm inistrators beginning in

August 2018 . In one such email , Respond ent sta ted tha t she was

experiencing " overwhelming of emotional , psychological and

spiritual distressed ." She also stated , " I wasn ' t feeling in

the best of wellness , for the same aforementioned reasons ." She

also requested a meeting with Mr . Arscott afte r her " we llness

recovery." Mr . Arscott accommodated Responde nt and gave her

some time off. At the meeting she requested a personnel

investigation , and Mr . Arscott explained to her that that

proces s did not apply to her computer - related complaints .

1 1. The emails from McCray caused Mr . Arscott to w orry

about Respondent's well - being . Additionally Mr . Arscott was

concerned that a security monitor was making these complaints ,

because security monitors are responsible for protecting the

school and alert ing administration to potential security issues .

12. MSHS is charged with educating and supervising over

3 , 000 students . S ecurity monitors are relied up on to be the

administration ' s " eyes and ea rs" at the school. MSHS Principal

Benny Valdes shared the sa me concerns regarding McCray' s

communications because her self - described " emotional distress "

could affect the safety of everyone at the school , including th e

students, staff, and McCray.

13. On September 20 , 2018 , at 6 : 59 p . m . , McCray sent ye t

another email to Mr . Arscott complaining of harassment ,

bullying , stalking , discrimination , safety violations , and

security violations . She also claimed to be experiencing

medical difficulties , including abrupt panic attacks , breathing

problems , chest p ain , and having to depart work early to

immediately seek medi cal attention. The verbiage of the email

is jumbled , disjointed , and nonsensical .

14. Mr . Arscott was concerned , particularly by the alleged

" safety concerns , " because they were not detail ed in the email .

When he attempted to speak with McCray about her allegations ,

she provided no details. Mr . Arscott knew McCray left school a

couple times to see doctors and his concerns were growing .

15. In her September 20, 2018, email, McCray co pied

numerous other public officials and entities having nothing to

do with MDCPS , including the Miami - Dade State Attorney, the FBI,

Governor Rick Scott, and Senators Marco Rubio and Bill Nelson.

16. On September 21 , 2018 , at 9 : 49 p . m . , a similar ema il

was sent to Mr . Arscott once again and a similar list of public

of ficials was copied by McCray. In this email McCray request ed

copies of the documentation pertaining to her computer

complaints . Apparently the ones she had been previously

provided by M r . Arscott were not " visually sufficient " for her.

17. On September 24 , 2018 , at 5 : 39 a . m . , McCray sent

another similar email to Mr . Arscott and , once again , copied a

seemingly random li st of public officials. Then again on

September 26 , 2018 , at 5 : 40 a . m . , McCray sent another similar

email to Mr . Arscott , as well as various public officials .

18. Mr . Arscott estimated that there were 30 or more of

these repetitious and bizarre emails sent by McCray between

September 20 and 26, 2 018. At or ab out the same time one

morning , McCray also texted Mr . Arscott wi th her concerns

46 times between approximately 5 : 00 a . m . and 6 : 00 a . m . Trying

to address all of McCray' s repetitive requests , sent virtually

at all hours of the day and night , took Mr . Arscot t away from

his other duties at the school.

19. As a result of these communications and their concerns

for both Respondent and the school , both Mr . Arscott and

Mr . Valdes supported the decision to send Respondent for a

fitness - for - duty evaluation. M r . Valdes also stated that he

would not be comfortable with Respondent returning to MSHS .

The Fitness - for - Duty Process

20. School Board Policy 4161 -- Fitness for Duty, applies to

non instructional personnel , which includes security monitors .

The fitne ss p olicy refers to the applicable CBA. Article XXI (F)

of the CBA dictates that at the request of administration , an

employee can be sent for a psychological or psychiatric

examination or test upon a written statement of the need for

such an examination .

21. District Director Carmen Molina testified that the

District was first al erted of concerns for McCray' s

well - being when Marian Lambeth called and provided OPS with a

copy of McCray' s 322 - page complaint in March 2018 . These

concer ns were amplifie d when McCray began sending emails to MSHS

administration describing various forms of distress she was

experiencing . Much like Mr . Arscott and Mr . Valdes , Ms . Molina

was concerned that a security monitor was making these

complaints and allegations . Under standing the role of security

monitors at a school , she too supported sending McCray for a

fitness - for - duty evaluation .

22. As a result of the administration 's well - founded

concerns , on September 27 , 2018 , a Conference for the Record

( " CFR " ) was held with McCray and two union representatives

concerning sending McCray for a fitness - for - duty e valuation .

When McCray arrived for the CFR , Ms . Molina handed her an

envelope that contained a written description of why she was

being sent for a fitness evaluat ion . Ms . Molina explained to

her both in wri ti ng and verbally that she was being sent for the

evaluation because of her repeated complaints about cyber -

bullying and her claims of emotional , psychological , and

spiritual distress . T he reasons for the evalu ation were also

memorialized in the CFR summary Ms . Molina drafted and presented

to McCray.

23. At the CFR , McCray wanted the meeting postponed for

lack of union representati on, yet this claim had no basis

because two union representatives were prese nt . McCray asked

Ms . Molina what the basis for the fitness determination was and

Ms . Molina advised her that it was because of the frequency and

the content of the emails she was repeatedly sending .

Ms . Molina even presented her with a n email dated Septe mber 26 ,

2018 , and asked McCray if she sent it . McCray replied that

" it looked familiar ."

24. During the CFR , Ms . Molina directed McCray to go to

the fitness - for - duty evaluation and provided her with a list of

clinical evaluators from which to cho ose three . McCray refused

to sign this referral document , as well as the written basis for

the fitness determ ination. It was explained to her that going

to the fitness - for - duty evaluation was a condition of her

continued employment and that if she refuse d , it would be

considered insubordination . McCray was giv en until

September 28 , 2018 , to call Ms . Molina with her selected

evaluators , but she never made the call . After this meeting,

McCray was placed on "alternate assignment" and remained at home

with full pay.

25. When McCray did not call Ms . Molina as directed to

schedule the fitness evaluation , another CFR was scheduled for

October 4 , 2018 . Ms . Molina testified that McCray was given

more than two day ' s notice for this second CFR and emailed th e

notice to her preferred Yahoo email account . McCray did not

attend this CFR . However , the written summary of this CFR ,

which once again contained written directives to schedule the

fitness - for - duty appointment , was sent to McCray.

26. McCray fail ed to select her choices of evaluators for

the second time and , as a result , a third CFR was held on

October 15 , 2018 . Despite her refusal to participate in the

fitness process , McCray continued to send a barrage of bizarre

emails . McCray attended this C FR and was once again directed by

Ms . Molina to go for a fitness evaluation . This was the third

time McCray received these directives in writing and the second

time Ms . Molina gave them verbally .

27. During this CFR , McCray was once again presente d with

a list of doctors to choose from and she again refused t o sign

it. McCray was also advised that her continued refusal to go

for the fitness evaluation was gross insubordination . McCray

repeatedly said , " I heard you " when Ms . Molina spoke to her .

28. In early November 2018 , there was a fourth CFR held

with McCray that she attended and was once again given a chance

to participate in the fitness process . Again , she refused .

29. On November 29 , 2018 , McCray was given a fifth a nd

final op portunity to participate in the fitness - for - duty process

at her meeting prior to board action . It was explained to her

by Ms . Molina , Ms . Molina ' s supervisor , Dr . Jimmie Brown , and

then Associate Superintendent Joyce Castro that she would have

to go for t he fitness evaluation or be terminated . McCray sti ll

refused to go. McCray was also presented with an entire copy of

her disciplinary file by Ms . Molina .

30. On December 18 , 2018 , McCray was emailed and sent via

certified mail a letter that informe d her that her termination

was going to be recommended at the December 19 , 2018 , MDCSB

meeting. On December 20 , 2018 , McCray was emailed and sent via

certified mail a letter that informed her that MDCSB had taken

action to terminate her employment .

McCray ' s Arguments

31. McCray argues that termination is inappropriate

because she did not receive sufficient advanced notice of the

first CFR , as required by the CBA , and she was not given a valid

reason for the need for the fitness - for - duty evaluation. McCray

also argues that MDCSB's failure to provide a Notice of Specific

Charges prior to her termination deprived her of due process.

a. Notice of the First CFR

32. Article XXI , Section 1 , A(3) of t he CBA governing the

terms of McCray ' s employm ent provides that , " Employees shall be

given two days ' notice and a statement of the reason for the

conference , except in cases deemed to be an emergency ."

33. MDCSB alleges that the September 27 , 2018, CFR was an

emergency justifying the lack of adv ance notice. McCray

contends that there was no emergency because MDCSB became

concerned about McCray's mental health after receiving her

322 - page complaint letter in March 2018.

34. Although the March 2018 complaint raised concerns

regarding McCray 's well - being and mental stability, it was her

on going and ever - increasing barrage of bizarre, and often

incomprehensible, emails to numerous individuals in which she

expressed concerns abo ut her own safety and stability that

escalated the situation to an emergency. Despite the lack of

advanced notice , McCray had two union representatives present at

this first meeting to assist her with the process . Accordingly,

MDCSB was justified in calling the initial emergency CFR without

two days' advance notice.

b. Reason for the Evaluation Request

35. Contrary to McCray's assertion that she was asked to

submit to a psychological evaluation based solely upon "too many

emails," MDCSB repeatedly explained verbally and in writing to

McCray that it needed t he evaluation based on the volume and

content of those emails. In the emails, McCray complained of

unspecified harassment , bullying , stalking , discrimination ,

unspecified safety violations , and security violations that she

claimed were causing her abrupt panic attacks , breathing

problems , chest pain , and causing her to seek medical

assistance .

36. At each CFR and in the CFR summaries, McCray was

advised that MDCSB wanted her to participate in a fitness - for -

duty examination because of her own complain ts of school - related

"emotional, psychological, and spiritual" distress.

c. Notice of Specific Charges

37. McCray points out that she was not provided with a

Notice of Specific Charges until February 18, 2019, only 11 days

prior to the final he aring and approximately two months after

MDCSB's termination recommendation.

38. Due process required that McCray be provided notice

and an opportunity to be heard prior to suspension or

termination and the right to a post - termination evidentiary

hea ring.

39. Prior to termination, McCray was given five notices of

CFRs and at least three CFR summaries explaining the need for

her to participate in a fitness - for - duty evaluation, and that

failure to do so was a violation of MDCSB policy and

insubord ination.

40. McCray was also notified on December 18, 2018, by

email and in writing, that MDCSB intended to recommend her

suspension without pay and dismissal for just cause, "including

but not limited to: gross insubordination; and violation of

Sch ool Board Policies 4161, Fitness for Duty, 4210, Standards of

Ethical conduct, and 4210, Code of Ethics."

41. Despite being provided multiple opp ortunities prior to

termination to explain her basis for fearing for her safety and

refusal to attend a f itness - for Î duty evaluation, McCray refused

to do so.

42. After the MDCSB meeting on December 19 , 2018, at which

McCray was recommended for suspension without pay and dismissal,

she was provided notification of the action by letter dated

December 20, 2018, which mirrored the basis for discipline

contained in the December 18, 2018, letter. This notification

also provided her with notice of how to contest the proposed

action.

43. MDCSB policies do not specify a time frame within

which a Notice o f Spe cific C harges must be issued for non -

instructional employees. At no time prior to the issu ance of

the Notice of Specific C harges did McCray request any further

explanation. There is no record of any pre - hearing discovery

request by McCray regarding the specific factual or legal basis

for the termination. It should be noted that the Notice of

Specific Charges identifies vi olations of MDCSB Policy 4161 Ï

" Fitness for Duty " and "Gross Insubordination" -- the same reasons

for proposed discipline identified prior to the MDCSB action of

December 19, 2018.

44. McCray was provided a full evidentiary hearing at the

final hearing of this matter. McCray received all pre and

post - termination due process to which she was entitled.

CONCLUSIONS OF LAW

45. DOA H has jurisdiction over the parties and the

subject matter of these proceedings pursuant to sections 120 . 569

and 120 . 57(1) , Florida Statutes (201 8 ) .

46. Because MDCSB, acting through the superintendent ,

seeks to terminate McCray' s employment , which does n ot involve

the loss of a license or certification , MDCSB 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 McNeil l v .

Pinellas C ty . Sch . Bd . , 678 So . 2d 476 (Fla . 2d DCA 1996) ; Allen

v . Sch . Bd . of Dade C ty . , 571 So . 2d 568 , 569 (Fla . 3d DCA

1990) ; Dileo v . Sch . Bd . of Dade C ty . , 569 So . 2d 883 (Fla. 3d

DCA 1990).

47. The preponderance of the evidence standard requi res

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

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

than not " tends to prove a certain proposition . See Gross v .

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

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

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

48. As a full - time school security monitor, McCray was, at

all times material to this matter, a non - instructional

"educational supp ort employee " as defined by section

1012.40 (1)(a), Florida Statutes. Pursuant to section

1 012.40(2)(b), the employment status of an " educational support

employee , " such as McCray , must continue " from year to year

unless the district school superintendent terminates the

employee for reasons stated in the collect ive bargaining

agreement . . . . "

49. In accordance with CBA Article V, Section 1, MDCSB has

the right to discipline or terminate employees for "just cause."

50. The CBA does not define " jus t cause ," but the term is

well - known in Florida education law . The definition provided in

section 1012 . 335(5) , which governs directly in matters

concerning contracts with instructional personnel but is

applicable here as persuasive authority , states that :

[J] ust cause includes , but is not limited

to :

(a) Immorality .

(b) Misconduct in office .

(c) Incompetency .

(d) Gross insubordination .

(e) Willful neglect of duty .

(f) Being convicted or found guilty of , or

entering a plea of guilty to , regardle ss of

adjudication of guilt , any crime involving

moral turpitude .

51. MDCSB's Notice of Specific Charges alleges that

Respondent is guilty of (I) Misconduct in Office , and (II) Gross

Insubordination . Whether an employee committed the charged

offenses is a question of ultimate fact 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) ; Langston v .

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

Misconduct in Office

52. In accordance with State Board Rule 6A - 5 . 056(2) ,

" Misconduct in Office " means one or more of the following :

(a) a violation of the adopted school board rules ; (b ) b ehavior

that disrupts the student ' s learning environment ; or

(c ) b ehavior that reduces the teacher ' s ability or his or her

colleague ' s ability to effectively perform duties .

53. MDCSB Policy 4161 -- Fitness for Duty provides that

support staff may be directed to submit to a n ap propriate

examination by a health care provider in accordance with the

applicable CBA. As discussed in greater detail above, McCray

refused to submit to this reasonable request for examination on

five separate occasions over a period of almost three month s .

During this period , McCray was paid her full salary while

sitting at home .

54. MDCSB established , by a preponderance of the

competent , credible , and persuasive evidence , that McCray ' s

actions in this case constitute misconduct in office , as

defin ed in rule 6A - 5 . 056(2) , which inc orporates School Board

Policy 41 61 -- Fitness for D uty, and constitute just cause for

termination.

Gross Insubordination

55. Pursuant to State Board Rule 6A - 5 . 056(4) , " Gross

Insubordination " means the intentional refusal to obey a direct

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

authority .

56. McCray was directed on five occasions to identify

three doctors from the provided list so that a fitness - for - duty

evaluation could be scheduled for her . McCray had ov er two

months to comply with these reasonable directives , given with

proper authority . McCray refused to do so . MDCSB demonstrated

by a preponderance of the evidence that McCray's conduct , as

described herein, constitutes g ro ss insubordination and provid es

just cause for dismissal .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Miami - Dade C ounty School Board

enter a final order finding Carla McCray guilty of misconduct in

office and gross insubord ination and upholding her termination

from employment.

DONE AND ENTERED this 3rd day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

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 3rd day of June , 2019 .

COPIES FURNISHED:

Christop her J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue , Suite 430

Miami, Florida 33132

(eServed)

Catherine A. Riggins, Esquire

18520 Northwest 67th Avenue , Suite 105

Miami, Florida 33015

(eServed)

Alberto M. Carvalho, Superi ntendent

Miami - Dade County Public Schools

1450 Northeast 2nd Avenue, Suite 912

Miami, Florida 33132 - 1308

Matthew Mears, General Counsel

D epartment of E ducation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServ ed)

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 O rder in this case.