19-003135 Sarasota County School Board vs. Joy Deal Status: Closed Recommended Order on Thursday, February 11, 2021.

Summary: Sarasota County School Board established just cause to terminate Respondent, an attendance clerk, for misconduct.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S ARASOTA C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 19 - 3135

J OY D EAL ,

Respondent .

/

R ECOMMENDED O RDER

On N ov e m b e r 2 through 4, 2020 , Administrative Law Judge Hetal Desai of

the Division of Administrative Hearings (DOAH) conducted an evidentiary

hearing via Zoom conference.

A PPEARANCES

For Petitioner: Robert K. Robinson, Esquire

Rob Robinson Attorney, P.A.

500 South Washington Boulevard, Suite 400

Sarasota, Florida 34236

For Respondent: Joy L. Deal, pro se

4503 Hale Street

Sarasota, Florida 34233

S TATEMENT OF T HE I SSUE S

Whet her Respondent, Joy Deal (Respondent or Ms. Deal), committed

misconduct as alleged by the School Board of Sarasota County ( School

Board), and, if so, whether the School Board had just cause to terminate her

employment.

P RELIMINARY S TATEMENT

On December 14, 2018, the School Board ' s Superintendent, Todd Bowden ,

issued a letter to Ms. Deal indicating he had found just cause to recommend

termination of her employment to the School Board for committing the

offense of " misconduct in office. " Respondent grieved that finding and

recommendation.

On May 14, 2019, Mr. Bowden issued another letter to Respondent

indicating that the original recommended termination had proceeded through

the grievance process. The May 14 letter indicated that the School Board

would vot e to accept or reject the recommendation for termination at a

meeting on June 4, 2019, unless she requested an administrative hearing.

On May 28, 2019, Ms. Deal submitted a letter requesting a hearing

pursuant to section 120.569, Florida Statutes (2018). 1 On June 10, 2019, the

School Board referred the matter to DOAH, where it was assigned to the

undersigned Administrative Law Judge. A f i n a l h ear in g wa s noticed w it h i n

60 d a y s o f R e sp o nd e nt ' s re qu e s t for an administrative hearing for A ugu s t 2 6

a n d 2 7 , 2019 . § 1 0 12.33 ( 6 )( a ) 2. , Fla. Stat.

On June 28, 2019, the School Board filed an Administrative Complaint

providing more specific charges of misconduct against Ms. Deal. 2 Specifically,

the School Board alleged that Ms. Deal had an incident with a student on

No vember 2, 2018, involving Ms. Deal yelling at a student. 3

1 All references to Florida Statutes, administrative rules, and the School Board ' s policies are

to the 2018 versions in effect a t the time of the allegation, except as otherwise indicated.

2 The Administrative Complaint was filed in response to an Order Requiring Notice of

Specific Charges , rendered on June 13, 2019.

3 The Administrative Complaint also contained an allegation th at Ms. Deal acted

inappropriately in front of parents on November 7, 2018. This basis for termination was

abandoned in the School Board's Proposed Recommended Order (PRO). See Pet. PRO, ¶72.

On August 20, 2019, Ms. Deal filed a document titled " Respondent

Complaint to the Honorable Judge Robert S. Cohen " (Complaint), requesting

that DOAH conduct an investigation and " suspend any furthe r proceedings. "

Specifically, Ms. Deal complained about the use of her deposition testimony

at the final hearing and alleged that the School Board had committed

evidence tampering and conspiracy , and had violated chapter 119, Florida

Statutes, Florida ' s p u blic r ecords law. The Complaint was treated as a motion

to stay and denied on August 20, 2019.

The final hearing commenced on August 26, 2019, but concluded abruptly

after a few hours due to a n emergency involving Respondent ' s family. The

final hearing wa s rescheduled , continued due to the COVID - 19 health crisis,

placed in abeyance for three months due to Respondent ' s health issues , and

ultimately set to be heard November 2 through 6, 2020. 4

On October 23, 2020, the School Board filed a Motion to Strik e

Respondent Joy Deal ' s Second Amended Pre - Hearing Statement or, in the

alternative, to Exclude Untimely Disclosed Exhibits and Witnesses, and for

Fees and Costs. This motion was treated as a motion in limine and heard at

the pre - hearing conference held Oc tober 26, 2020. Ultimately, the

undersigned struck a number of untimely disclosed witnesses who

Respondent intended to present on her claims of spoliation of evidence

(missing emails and video footage), and alleged harassment of other

employees . The unders igned ruled these issues were not appropriate for the

final hearing. Petitioner ' s request for fees and costs were denied.

4 Because of the length of time between the original commencement date and the resumption

of the hearing on November 2, 2020, the testimony at the August 26 hearing was not

considered. The parties agreed to start the hearing over and began with their opening

arguments on November 2, 2020.

The final hearing was held via Zoom on November 2 through 4, 2020. The

School Board presented testimony from a number of its employee s and former

employees who worked at Sarasota High School: David Jones (principal),

Jeffrey Hradek (former principal), Denise Masi (security aide), Ryan Chase

(former assistant principal), and Becky Moyer (assistant principal). The

School Board also relied on the deposition testimony of Ms. Deal. Petitioner ' s

Exhibits P1 through P8 and P16 through P57 were admitted into evidence.

Respondent presented the testimony of Madison Byrd (Ms. Deal ' s daughter),

and Mark Gilliland (assistant principal). Ms. Deal did not testify.

Respondent ' s Exhibits R2 through R4, R9 through R11, and R16 through R18

were admitted into evidence.

At the conclusion of the hearing, the parties requested an exten ded

deadline of the traditional deadline of 20 days after the transcript i s filed t o

submit their PROs, thus waiving the requirement for the undersigned to

issue this Recommended Order within 30 days after receiving the Transcript.

See Fl a. Admin . Code R . 28 - 106.216(2).

The Transcript of the hearing was filed with DOAH on Nove mber 23,

2020 . Petitioner filed an agreed motion for a further extension to file PROs on

December 31, 2020 , which was granted. Pe titioner ' s PRO was timely filed,

but Respondent ' s PRO was not. Because there was no objection to

Respondent ' s late - filed PRO, b oth PROs have been considered in the

preparation of this Recommended Order.

F INDINGS OF F ACT

The Parties and Personnel

1. Petitioner is responsible for operating the public schools in the Sarasota

County School District, including Sarasota High School (S arasota High) . The

School Board is responsible for hiring, firing, and overseeing both

instructional employees and non - instructional employees within Sarasota

County, Florida.

2. Respondent has been an employee the School Board for 22 years . She

has worke d as an administrative secretary, but relevant to these proceedings,

Ms. Deal was employed at Sarasota High as an SSP - 5 Attendance Clerk

( At tendance C lerk). 5

3. David Jones (Principal Jones) is Sarasota High ' s principal and has been

employed by the School Board since 2005 . He previously serv ed as a math

teacher, assistant principal, middle school principal, and principal of another

high school. He became the principal at Sarasota High at the start of the

2016 / 20 17 school year, replacing Jeffrey Hradek (Pri ncipal Hradek).

4. Sarasota High ' s administrative team was made up of Principal Jones

and numerous assistant principals. Both Ryan Chase and Beck y Moyer

served as assistant principals under Principal Jones during the 2016/2017,

2017/2018 , and 2018/2019 sc hool years. Principal Jones , Assistant Principal

Chase, and Assistant Principal Moyer all supervised Respondent during

these years at different times .

C oll e c tiv e B ar g a i n in g A g ree m e n t ( CB A )

5. There is a C oll e c tiv e B ar g a i n in g A g ree m e n t ( CB A ) b e t wee n the Sc hool

Board a n d t h e S ara sot a C l a s s i f i e d , Teac h er s A sso c i a t io n ( S C / TA) . Ms. Deal is

a member o f the SC/TA and subject to the CBA.

6. A r ti c l e X X I of the CBA ( D is c i p lin ar y Ac t ion s ) p r ovid e s f o r p r og r e ssiv e

d i s c i p lin e , with t er m in a t i o n o f e m p l o y m e n t a s th e l a s t s t e p o f t h e d is c i p l in ar y

p r o ce ss :

(A ) S c op e o f Ar ti c l e

1 . T hi s ar t i c l e c ov er s ac t ion s i nv o lv i n g o ra l a n d

wr i tt e n war ning , wr i tt e n re p r i m a nds , su s p e n s ion s ,

d e m o ti ons , d i sm i ss a l s , o r re du c ti o n s i n g ra d e o r p a y

w it h p re ju d i ce .

5 " SSP - 5 " means Salary Schedu le P - 5.

2 . D is c i p l i n ar y ac t i o n m a y no t b e t a k e n a g a i n s t

a n e mpl o y e e e x ce p t f o r j u s t ca us e , a n d t h i s m us t b e

su b st a n t i a t e d b y s u ff i c i e n t e vid e n c e w h i c h s uppo r t s

t h e rec omm e n d e d d is c i pl i n ar y ac ti o n .

3 . A l l f ac t s p er t a i n in g t o a dis c i p l in ar y ac t io n sh a l l

b e d e v e lop e d a s p r om p t l y a s po s si b l e . Ac t ion s u n d e r

t h i s A r ti c l e sh a l l b e p r om p t l y i n i t i a t e d a f t e r a l l th e

fac t s h a v e b ee n m a d e kno w n t o th e o ff i c i a l

r e spo n si b l e f o r t a k in g th e ac t ion s .

* * *

( C ) A n e mp l oy e e w h o m d i s c ip l in ar y ac t io n i s t o b e

t a k e n m a y a pp e a l th r ou g h t h e g r i e v a n c e p r o ce du r e

th a t p r op o s a l .

(D ) A n e mp l oy e e a g a i n s t w h o m ac t i o n i s t o b e

t a k e n und e r t h i s A r ti c l e sh a l l h a v e th e r ig h t t o

re v i e w a l l o f th e in f o r m a t io n r e li e d up o n t o s uppo r t

t h e p r opos e d ac t i o n a n d sh a l l b e giv e n a c op y up o n

re q u e st .

(E ) T h e U n i o n sh a l l b e p r o v i d e d w i t h a c op y o f a l l

c o rre spond e n c e th a t i s re l a t e d t o t h e ac t i o n o f t h e

e mp l oy e e t h e U n i o n i s re p re s e nti n g .

( F ) T h e e m p loy e e a n d hi s /h e r re p re s e nt a tiv e sh a l l b e

a f f o r d e d rea son a bl e a mou n t o f t im e t o p re p ar e a n d

p re s e n t a pp r op r i a t e re spons e s t o th e p r op o s e d

ac tion s u n d e r t hi s ar ti c l e , th r o ug h S t e p O n e o f th e

Gr i e v a n c e P r o ce s s . T h i s a mou n t o f t i m e i s t o b e

m utu a l l y a g ree d upo n b y t h e p ar ti e s .

* * *

(H ) P re vi o u s c h ar g e s o r ac t i on s t h a t h a v e b ee n

b r o u gh t f o r t h b y t h e a dmi n i s t ra t i o n m a y b e c it e d

a g a in s t e m pl o y e e i f th e s e p re vi o u s ac t s ar e

rea son a bl y re l a t e d t o th e e xi s t i n g c h ar g e . A l l

p r e viou s c h ar g e s o r ac t i on s mus t h a v e b ee n sh are d

w i t h t h e e m p loy ee .

( I ) P r og re s siv e D is c i p l in e

1 . T h e d i s c i p l i n e , d i s mi s s a l , d e m o ti o n , a n d

susp e ns i o n o f a n y e mpl o y e e sh a l l b e f o r j us t ca us e.

2 . W h er e jus t ca us e warra n t s su c h a c ti o n ( s ) , a n

e m p l oy e e m a y b e d e m ot e d , s usp e n d e d , o r d is m iss e d

u po n rec o m m e nd a t io n o f t h e imm e d i a t e s u p er vi s o r

t o th e S up e r int e n d e n t o f S c hoo l s . E x ce p t i n ca s e s

th a t c on s t i tut e a r e a l i m m e di a t e d a ng e r t o t h e

di s t r i c t o r [sic] t h e oth e r f l a g ra n t vi o l a t ion ,

p r og re ss i v e dis c ip l in e sh a l l b e a dmi n i s t ere d a s

f o l lo w s :

a . Ver b a l re p r im a n d (wr i tt e n not a t io n p l ace d i n

s i t e f il e) .

b . Wr itt e n re p r im a n d f i l e d i n p er sonn e l a n d s i t e

f i l e s .

c . S usp e ns i o n w it h o r w i th o u t p a y .

d . D is m iss a l .

7. Sarasota High ' s administration utilized meetings known as

" Weingarten hearings " to make factual findings that would d etermine

whether discipline was warranted for an employee. Employees were provided

notice of the allegations against them and allowed to bring counsel or union

representation to the hearing. 6

Ms. Deal ' s Job Description

8 . As her job title implies, Ms. Deal was responsible for maintaining

attendance data and monitoring the coming s and going s of students

throughout the s chool day. Ms. Deal ' s job duties were listed in Board Policy

6.42, Job Description 11 for A ttendance Clerk , and include :

6 Article XXI sets forth what is commonly referred to as " Weingarten " rights. See In NLRB v.

J. Weingarten, Inc. , 420 U.S. 251 (1975) ( h olding unionized employee has right to notice and

union r epresentation , in instances where member reasonably believes investigatory

meetings, conferences, or interviews may result in disciplinary actio n).

(8 ) Communicate daily with a variety of parents and

staff.

(9) Assist office staff with answering the telephone

and greeting parents.

* * *

(12) P r o vid e a s af e a n d s e c u r e w o r kpl ace .

( 13 ) Mod e l a n d m a i nt a i n hig h e thi c a l s t a nd ar d s .

* * *

( 15 ) M a i nt a i n c on f id e n t i a l it y re g a r din g s c h o o l

m a t t er s .

* * *

(18) Respond to inquiries and concerns in a timely

manner.

( 19 ) F ol l o w a l l S c ho o l B o ar d po l i c i e s , r ul e s a n d

re g ul a t i on s .

( 20 ) E x h ib i t int er p e r son a l sk i l l s t o w o r k a s a n

effec t iv e t ea m m e m b er .

(21) Demonstrate support for the School District

and its goals and priorities.

(22) Pe r form other incidental tasks consistent with

the goals and objectives of this position.

9 . As an A ttendance Clerk, Ms. Deal had constant interactions with

students and parents when they checked in or out of school. She was priv y to

the students ' personal information because she was the school employee w ith

w ho m parents would interact if they were picking or dropping off a child

(outside of normal school start and stop times) for personal or medical

reasons.

1 0 . The a ttendance d esk, Ms. Deal ' s workspace, was in Sarasota High ' s

front office . The front office also houses the s chool c linic and the office of the

At - Risk Coordinator , Keri Gartland . To enter either the clinic or

Ms. Gartland ' s office, staff and students would have to go through the front

office. The clinic also has a sliding glass window looking into th e front office.

1 1 . The front office had an " outside door " which was open to the public,

and a " campus door " to the school grounds . Anyone coming to school after the

start of the school day would have to come in the front office through the

outside door , s top at the a ttendance d esk to sign in, and go through the

campus door to get to class . Students leaving the school before normal exiting

times were required to stop by the a ttendance d esk to sign out of schoo l, or

have their parent sign them out.

Employmen t History

1 2 . School administrators u t ili ze d m e m o ra nd u m s o f inst r u c ti o n (MOI) a s a

no n - d i s c ipl i n ar y m ea n s o f w o r k i n g w i t h e mp l oy ee s t o imp r o v e j o b

p erf o r m a n ce . A lth o ug h M O I s ar e no t dis c i p l in ar y i n n a tu re , th e y ar e

i n t e nd e d t o be corrective tools t o focus an e mp l oy ee ' s a tt e n t i o n on cer t a i n

g uid e lin e s a n d a cce pt a bl e st a nd ar d s o f c o ndu c t i n re s p ons e t o performance or

behavioral issues.

1 3 . Principal Hra d e k supervised Ms. Deal fr o m 2 00 3 th r o u g h 20 1 6 .

During this period, Ms. Deal rece iv e d no n - dis c i p l in ar y MOIs fr o m P r in c i p a l

Hra d e k and assistant principals o u t l ini n g th e n ee d t o i mp r o v e h e r l e v e l o f

c o o p era t i o n w h i l e w o r k in g w i t h o t h er s , stop g o s s i p ing, be more t ac t ful , be

more c ou r t e ous t o p are nts and s t ud e n t s, be more p a ti e n t with a n d re s p ec t ful

of oth er s, and accept guidance from others regarding these issues.

1 4 . O n August 2 5 , 2010, Ms. Deal was issued a n MOI w i t h re g a r d t o

e thi ca l d ef i c i e n c i e s . The MOI focused on th e P r i n c ipl e s o f P r o fe s s ion a l

C o ndu c t o f th e E du ca t io n P r o fe s sio n i n F l o r i d a (the Principles) w hi c h , as

explained below, re q ui r e e mpl o y ee s t o t a k e rea son a bl e p reca u tio n s t o

di s ti n gu i s h b e t wee n p e r son a l v i ew s a n d t h os e o f th e School Board, n o t

i n t e n t ion a l l y d i s to r t o r m i s re p re s e n t fac t s c on cer n i n g a n e du ca tion a l

m a tt e r i n di r ec t o r i ndi rec t pu b li c e x p re ssio n , a n d no t m a k e m a li c i o u s o r

i n t e n tion a ll y fa ls e s t a t e m e n t s a b ou t a n o th e r e m p loy ee .

1 5 . In her 2010 ev a lu a t i o n, Ms. Deal was rated " Effec t i v e , " " Nee d s

I mp r ov e m e n t , " a n d " N o t Effec tiv e . " Specifically, the evaluation in d i ca t e d

th a t R e s p ond e n t needed improvement acce pting c on s t r u c t iv e c r i t i c i s m a n d

that she n ee d e d t o i n crea s e her a bil i t y t o acce p t g uid a n c e. The evaluation

also stated Ms. Deal was in effec tiv e i n the areas of " Coo p era tio n " a n d

" P e r son a l R e l a t ion s hi p s . " Ms. Deal was again reminded to " i n c rea s e h e r l e v e l

o f c oop era t io n w o r k in g w i t h o th er s [and] d ecrea s e go s si p . " Regarding her

personal r e l a t i ons h i ps , she was told to " in crea s e t ac t , c o u r t e s y t o p are n t s a n d

s t ud e n t s , p a ti e n c e a n d re sp ec t f o r oth e r s . "

1 6 . At some point during his tenure, Princi pal Hradek relieved Ms. Deal

of her attendance duties and moved her out of the front office into Building

14 . Ms. Deal ' s duties in this new area were to provide secretar ial support to

the a ssistant p rincipals, the school resource officer, and the Exception al

Student Education (ESE) liaison. Neither Principal Hradek nor the School

Board change d Respondent ' s SSP - 5 Attendance Clerk designation , even

though she was no longer performing the duties of that job.

1 7 . In this new role, Respondent had less contact w ith parents and

students. Principal Hradek explained :

I think in the role of an attendance clerk with all the

public interaction that [Ms. Deal] had with families

and various staff it was Ï that was her flaw. She

wanted to talk about things other than her job

responsibilities or elicit her opinions. So, moving her

over to Building 14, she did a very good job with the

special needs students.

1 8 . Ms. Deal had no disciplinary issues or MOIs for a number of years.

Then, o n A ugu s t 2 0 , 201 5 , P r in c ip a l Hra d e k i s su e d an MOI to Ms. Deal for

having l o u d o utbu r s t s and making p r o f a n e st a t e m e n t s i n fr on t o f s t ud e n t s

a n d s t af f w h i l e c o n t e s t in g n e w p ar k i n g p r o ce du re s. R e spo n d e n t wa s a g a i n

re mind e d o f her ethical obligations and th e P r in c i pl e s.

19 . When Principal Jones re placed Principal Hradek, Principal Jones

made the decision to move Ms. Deal back to the a ttendance d esk in the front

office to perform the duties she was designate d to do as Attendance Clerk .

2 0 . Shortly after resuming her position as Attendance Clerk , Re spondent

received an MOI from Principal Jones addressing numerous issues including:

her failure to tak e consistent breaks throughout the day ; her use and volume

of musical devices during school hours ; her verbal communications with

colleagues, parents , and students ; her failure to bring her concerns to

administration instead of voicing them to others ; and her need to collaborate

with and receive approval from an administrator prior to changing office

procedures and protocols. Respondent was reminded again t o adhere to

acceptable ethical standards and the Principles.

2 1 . O n December 1, 2016, Principal Jones received a complaint from a

parent complaining Ms. Deal had made an inappropriate comment to his or

her child. The student , who suffers from a medical con dition, was attempting

to address school absences with Ms. Deal . Ms. Deal made rude,

embarrassing, and inappropriate comments to the student , her brother, and

two other students who were in the front office . The parent ' s complaint was

corroborated by anoth er student.

2 2 . Around the same time, the school administration received another

complaint from a different parent regarding inappropriate comments to her

child made by Ms. Deal regarding the child ' s illness . Ms. Deal questioned

whether the student should be able to leave the school, and whether the

student sh ould be able to obtain work from his or her teachers.

2 3 . On February 1, 2017, as a result of these incidents and after following

the proper procedures under the CBA, Assistant Principal Moyer issued

Ms. Deal a v er b a l r e p r im a n d f o r unp r o fe s s ion a l b e h a v io r . R e spo n d e n t di d n o t

g r i e v e th i s ac t ion.

2 4 . On September 25, 2017, the administration was informed that

Respondent had made inappropriate statements regarding a student

suffering a seizure to a paren t who was signing out another student from

school .

2 5 . On September 26, 2017, Respondent was involved in an incident in

which sh e allegedly discussed and laughed at a student ' s medical issue with a

teacher in the student ' s presence. Ms. Deal refused to al low the student to

contact her parents to request a change of clothes needed due to a

menstruation accident. Ms. Deal then demanded the student ' s parent call

Ms. Deal even though the student informed Respondent that her parent did

not speak English. Ms. De al allegedly told the student that she did not care if

her parents spoke Chinese or Spanish . She then proceeded to discuss the

student ' s medical condition in front of another parent .

2 6 . After an investigation and following the procedures in the CBA, on

O c tob e r 5 , 2 01 7 , Assistant Principal Chase issued a w r i t t e n r e p r i m a n d to

Ms. Deal for unp r o fe s s ion a l b e h a v io r in connection with the September 25 and

26 incidents. R e spo n d e n t di d n o t g r i e v e th i s ac t ion .

2 7 . On August 7, 2018 , t he administration received two reports from staff

regarding inappropriate behavior by Ms. Deal during the distribution of

locker assignments. Ms. Deal was frustrated with her computer and was

disrespectful to fellow staff members. Ms. Deal also complained to students

and parents about t he computer and process for assigning lockers , and

eventually left school early that day .

2 8 . After an investigation and following the procedures in the CBA, on

S e pt e mb e r 18 , 20 1 8 , Principal Jones recommended Ms. Deal be s usp e n d e d for

three d a y s w ith o u t p a y f o r u np r o fe ssion a l b e h a vio r .

29 . Ms. Deal grieved the suspension. A s a result, the suspension was

reduced to two days . Ms. Deal did not further grieve or appeal the

suspension.

3 0 . At the final hearing , Ms. Deal sought to relitigate the facts underlyin g

these previous disciplinary actions and argued she accepted the discipline

based on the faulty advice of her union representative . Ms. Deal presented no

evidence contradicting the circumstances regarding these incidents and chose

not to testify on her be half. Even if she had presented such evidence , the time

for appealing the se previous steps of progressive discipline ha s passed.

November 2, 2018

3 1 . O n N o v e mb e r 2 , 2 0 18 , Ms. Deal had an incident with a student,

Jo h n e s h i a Bu r k s , in the front office (the In cident) . T he School Board

presented no testimony from anyone who was in the front office at the time

the Incident started. According to Ms. Deal ' s PRO, Ms. Burks entered the

attendance office, told Ms. Deal that she was there to see Ms. Gartland, and

asked Ms. Deal where Ms. Gartland was. Ms. Deal claims she replied, " she

did not keep Ms. Gartland ' s schedule. " (Resp. PRO, p.5, ¶8).

3 2 . In her PRO, Ms. Deal also claims she asked Ms. Burks for a hall

pass , a t which point , Ms. Burks got upset and started verba lly attacking

Ms. Deal. Ms. Deal also claims Ms. Burks became physically aggressive.

(Resp. PRO, p.5, ¶8). Ms. Deal, however, did not testify and offer ed no

credible evidence of the I ncident. Although other evidence establishes they

were both yelling, ther e is no evidence that Ms. Burks was physically

aggressive or started the argument .

3 3 . Regardless, Denise Masi, the school ' s security aide and a former

New York City police officer, testified as to what she witnessed that day.

The undersigned finds Ms. Ma si ' s testimony is unbiased, credible, and

convincing; her testimony also is corroborated by various witness

statements in the investigative file.

3 4 . Sometime between 11:00 a.m. and noon, Ms. Deal called M s . M a s i f o r

a s s i s t a n c e in the front office on the s chool - issued radio. Ms. Masi ar r iv e d a t

th e front office e n t er i n g from the campus d oo r. She observed Ms. Burks on

the side of the door yelling at Ms. Deal, and Ms. Deal behind her desk

yelling at Ms. Burks. Although she did not understand what they were

ye lling about, she heard Ms. Deal yell " you can ' t stay in here. She has to go. "

3 5 . Ms. Masi also observed that there were parents in the office. She also

noticed the clinic nurse and assistant looked frightened behind the clinic ' s

glass sliding window, whic h was closed.

3 6 . Ms. Masi tried to de - escalate the situation by asking Ms. Deal to

" keep quiet " and stop yelling. Ms. Deal did not comply. Ms. Masi testified

that Ms. Deal was not making it easy to calm everyone down.

3 7 . Realizing Ms. Deal was not goin g to stop yelling, Ms. Masi removed

Ms. Burks from the front office. Ms. Masi assessed that Ms. Burks was

waiting to see Ms. Gartland and remained with Ms. Burks. While in a

breezeway between the front office and the a dministrative o ffice, they

encountered Ms. Gartland. Ms. Gartland returned to her office through the

front office with Ms. Burks without incident.

3 8 . Ms. Masi then went back into the front office to check on the nurse

and assistant. The nurse and assistant told Ms. Masi that, in response to

hearing the yelling, the y suggested to Ms. Deal that she call security and

then they closed the glass window into the front office.

39. During Ms. Masi's return to the front office, she observed Ms. Deal

was still agitated and kept repeating that she was n ot Ms. Gartland ' s

secretary.

4 0 . Ms . M a s i was interviewed separately by P r in c ip a l J o n e s and by

Assistant Principal Chase regarding the I ncident. A ssi s t a n t P r i n c ip a l Ch a s e

also int er v i ewe d Ms. B u r ks , who gave him a written statement. Based on his

conversati ons with Ms. Burks he learned that Ms. Gartland had requested

Ms. Burks to come to her office but Ms. Gartland was not there when

Ms. Burks arrived. Ms. Burks claimed Ms. Deal started yelling when she

asked her about Ms. Gartland ' s whereabouts .

4 1 . As par t of their investigation , both Principal Jones and Assistant

Principal Chase reviewed a video of the Incident . The video had no audio.

This video was not retained and was not offered into evidence at the final

hearing . The undersigned finds that the testim ony regarding what was in the

video is not helpful in determining what happened between Ms. Deal and

Ms. Burks.

4 2 . Ms. Deal did not testify. I nstead, she offered the testimony of Madison

Byrd ( her daughter and a Sarasota High student ), in an attempt to e stablish

that Ms. Deal ' s actions during the I ncident were justified and appropriate.

Ms. Byrd claimed she was in the front office during the Incident. According to

Ms. Byrd, Ms. Burks was the only person yelling and her mother did not say

anything to Ms. B urks. Ms. Byrd admitted she walked into the front office " in

the middle of the situation. " She also heard the nurse ask Ms. Deal to call

security.

4 3 . Ms. Byrd's testimony was subject to bias because of her familial and

financial ties to Respondent . Ms. Byrd also indicated she dislike d Ms. Burks

because of something that happened in middle school. The undersigned finds,

to the extent Ms. Byrd's testimony was inconsistent with Ms. Masi ' s

testimony, Ms. Masi ' s testimony is more reliable and corroborated by other

evidence.

4 4 . On N ov e mb e r 1 5 , 2 01 8 , Principal Jones met with Ms. Deal in a

We i n g ar t e n m e e ti n g t o a dd r e s s t h e I n c i d e n t. During this meeting,

R e s po nd e n t to o k n o p er s on a l r e spon s i b il i t y , a tt e mpt e d t o l a y b l a m e u po n

Ms. Burk s , and d e nied yelling. Similar ly, at the final hearing , Ms. Deal

presented no evidence that she accepted some responsibility or that her

behavior was appropriate and justified under the circumstances.

4 5 . On November 30, 2018, P r i n c ip a l J o n e s rec o m m e n d e d t er min a ti o n o f

R e s po n d e nt ' s e m p lo y m e n t b a s e d upon Ms. Deal ' s past disciplinary history for

u np r o fe s s ion a l c o n du c t i n t he w o r kpl ac e a n d the I ncident.

4 6 . A t the final hearing , Ms. Deal attempted to impeach the School Board ' s

witnesses by asking them if the administration told them to " k eep an eye " on

her or give written statements against her. There was no evidence anyone was

asked to fabricate information about Ms. Deal.

4 7 . It is clear from the testimony and evidence at the hearing that

Ms. Deal and Ms. Burks were involved in a shoutin g match in the front office

that could be heard by other parents and staff. Regardless of who started the

argument, Ms. Deal was the adult in the room. More importantly, as an

Attendance Clerk , Ms. Deal was required to act p rofessionally and according

to S chool Board rules and regulations. Instead , she took no steps to de -

escalate the situation, and refused to regain her composure even after being

asked by Ms. Masi to do so.

C ONCLUSIONS OF L AW

4 8 . DOAH has jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. 7

49 . Ms. Deal i s an educational support employee. §§ 1012.40(1)(a) and

1012.01(6), Fla. Stat.

5 0 . The School Board is charged with the duty to operate, control, and

supervise all free public schoo ls within the school district of Sarasota County,

Florida. Art. IX, § 4(b), Fla. Const.; §§ 1001.30 and 1001.33, Fla. Stat. The

School Board ' s superintendent has the authority to recommend to the School

Board that an employee be terminated from employment. § 1012.27(5), Fla.

Stat.

5 1 . The School Board has the statutory authority to adopt rules governing

personnel matters pursuant to sections 1001.42(28), 1012.22, and 1012.23 ,

Florida Statutes . Section 1012.22 , provides, in pertinent part:

The district scho ol board shall:

(1) Designate positions to be filled, prescribe

qualifications for those positions, and provide for

7 The School Board has contracted with DOAH to conduct the administrative proceedings

pursuant to Article XXI (C)(14) of the CBA.

the appointment, compensation, promotion,

suspension, and dismissal of employees as follows,

subject to the requirements of this chapter:

* * *

(f) Suspension, dismissal, and return to annual

contract status. Ð The district school board shall

suspend, dismiss, or return to annual contract

members of the instructional staff and other school

employees; however, no administrative assistant,

supe rvisor, principal, teacher, or other member of

the instructional staff may be discharged, removed,

or returned to annual contract except as provided

in this chapter.

5 2 . Section 1012.40(2)(c) provides:

In the event a district school superintendent seeks

termination of an employee, the district school

board may suspend the employee with or without

pay. The employee shall receive written notice and

shall have the opportunity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining process or by district school board rule

in the event there is no collective bargaining

agreement.

5 3 . The School Board bears the burden of proving by a preponderance of

the evidence that the alleged misconduct occurred a nd just cause exists to

terminate Respondent ' s employment. Cropsey v. Sch . Bd. of Manatee Cty. , 19

So. 3d 351, 355 (Fla. 2d DCA 2009). A p reponderance of the evidence is

evidence that " more likely than not " tends to prove the proposition set forth

by a pro ponent. Gross v. Lyons , 763 So. 2d 276 (Fla. 2000).

5 4 . As an initial matter, the undersigned must determine whether

Ms. Deal ' s conduct constitutes " just cause " for dismissal. Florida

Administrative Code R ule 6A - 5.056 provides in pertinent part:

Criteria for Suspension and Dismissal.

" Just cause " 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 are 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:

* * *

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

following:

* * *

(b) A violation of the Principles of Professional

Conduct for the Education Profession in Florida a s

adopted in Rule 6A - 10.081, F.A.C.;

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

(d) Behavior that disrupts the student ' s learning

environment;

(e) Behavior that reduces the teacher ' s ability or his

or her colleagues ' ability to effectively pe r fo rm

duties.

5 5 . Additionally, Article XXI( A )( 2 ) of the CBA provides that the discipline,

including dismissal, of any employee shall be for just cause.

The Principles

5 6 . The Principles provide guid ance to educational employees on how they

should act, and state in relevant part:

6A - 10.081 Principles of Professional Conduct

for the Education Profession in Florida .

(1) Florida educators shall be guided by the

following ethical principles:

(a) The educator values the worth and dignity of

every person, the p ursuit of truth, devotion to

excellence, acquisition of knowledge, and the

nurture of democratic citizenship. Essential to the

achievement of these standards are the freedom to

learn and to teach and the guarantee of equal

opportunity for all.

(b) The educ ator ' s primary professional concern will

always be for the student and for the development

of the student ' s potential. The educator will

therefore strive for professional growth and will

seek to exercise the best professional judgment and

integrity.

* * *

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspension of the individual

educator ' s certificate, or the other penalties as

provided by l aw.

(a) Obligation to the student requires that the

individual:

1. Shall make reasonable effort to protect the

student from conditions harmful to learning and/or

to the student ' s mental and/or physical health

and/or safety.

* * *

5. Shall not intention ally expose a student to

unnecessary embarrassment or disparagement.

5 7 . Ms. Deal was required to value " the worth and dignity " of Ms. Burks.

Fla. Admin. Code R. 6A - 10.08 1 (1)(a). Ms. Deal ' s behavior during the I ncident

violated this principle.

58 . Rule 6 A - 10.081(1)(b) required that Ms. Deal ' s primary professional

concern " always be for the student and for the development of the student ' s

potential. Therefore, one will strive for professional growth and will seek to

exercise the best professional judgment and integrity. " Ms. Deal ' s behavior

during the I ncident violated this principle.

59 . Rule 6A - 10.081(2)(a) 1. required Ms. Deal to make a reasonable effort

to protect Ms. Burks from conditions harmful to learning and " towards the

student ' s mental and / or phy sical health and / or safety. " Ms. Deal ' s behavior

during the I ncident violated this principle.

6 0 . Finally, r ule 6A - 10.081(2)(a) 5. provides that one " [s]hall not

intentionally expose a student to necessary embarrassment or

disparagement. " Ms. Deal ' s behavi or during the I ncident toward Ms. Burks

in the presence of others violated this principle.

6 1 . The School Board had previously warned and counseled Ms. Deal for

violating these and other Principles through her performance evaluations,

MOIs, and discipline . There was no evidence that Ms. Deal was remorseful

for the Incident or that she would change her behavior in the future to better

comply with the Principle s .

School Board Rules

6 2 . School Board R ule 6.27 requires Ms. Deal to adhere to the Principles.

Be cause she violated the Principles, as explained above, Ms. Deal has also

violated this rule . See also School Board Policy 6.42 , Job Description 11 (19).

6 3 . Additionally, Ms. Deal ' s behavior violated School Board Policy 6.42 ,

Job Description 11 (12), which sets forth her job description and requires her

to " provide a safe and secure workplace. "

Previous Discipline

6 4 . The School Board previously issued Ms. Deal the following discipline:

a verbal reprimand on February 1, 2017 ; a written reprimand on October 5,

2017 ; and a two - day suspension on September 18, 2018.

6 5 . Respondent ' s a ttempt to rehash what happened to warrant her

previous disciplines is barred by the doctrine of " administrative finality, "

which holds that agency orders must become final and no l onger subject to

change or modification. See Delray Med. Ctr. v. Ag. for Health Care Admin. ,

5 So. 3d 26, 29 (Fla. 4th DCA 2009)(comparing administrative finality to res

judicata). The credibility and persuasiveness of the evidence supporting past

discipli nary actions, as well as whether the discipline was appropriate, were

issues previously litigated (or could have been litigated) and decided.

Respondent may not relitigate these issues in this proceeding, especially

when she had been provided due process a nd union representation. See Fla.

Power Corp. v. Garcia , 780 So. 2d 34, 44 (Fla. 2001)(noting there must be a

" terminal point in every proceeding both administrative and judicial, at

which the parties and the public may rely on a decision as being final an d

dispositive of the rights and issues involved therein. " ); Reedy Creek Utils. Co.

v. Fla. Pub. Serv. Comm ' n , 418 So. 2d 249, 254 (Fla. 1982)( " An underlying

purpose of the doctrine of [administrative] finality is to protect those who rely

on a judgment or ruling. " ).

Ultimate Conclusions

6 6 . The School Board has satisfied its burden to show that Ms. Deal was

guilty of misconduct on November 2, 2018.

6 7 . The School Board has satisfied its burden to show that the misconduct

constituted just cause for disciplin ary action .

6 8 . The School Board has complied with the progressive discipline steps

set forth in Article XXI (I)(2) of the CBA . Thus, termination is the appropriate

disciplinary action.

R ECOMMENDATION

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

R ECOMMENDED the School Board of Sarasota County terminate Joy Deal ' s

employment.

D ONE A ND E NTERED this 11th day of February , 2021 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

Administrative Law Judge

1230 Apalachee Parkway

Ta llahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of February , 2021 .

C OPIES F URNISHED :

Joy L. Deal Robert K. Robinson, Esquire

4503 Hale Street Rob Robinson Attorney, P.A.

Sarasota, Florida 34233 Suite 400

500 South Washington Boulevard

Matthew Mears, G eneral Counsel Sarasota, Florida 34236

Department of Education

Turlington Building, Suite 1244 Dr. Brennan Asplen , III , Superintendent

325 West Gaines Street Sarasota County School Board

Tallahassee, Florida 32399 - 0400 1960 Landings Boulevard

Sarasota, FL 34231 - 3365

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 Recommende d Order. Any exceptions to this Recommended

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

case.