20-005416TTS
Miami-Dade County School Board vs.
Phyllis G. Kirkland
Status: Closed
Recommended Order on Tuesday, August 10, 2021.
Recommended Order on Tuesday, August 10, 2021.
1S TATE OF F LORIDA
6D IVISION OF A DMINISTRATIVE H EARINGS
13M IAMI - D ADE C OUNTY S CHOOL B OARD ,
24Petitioner ,
25vs. Case No. 20 - 5416 TTS
32P HYLLIS G. K IRKLAND ,
37Respondent .
39/
40R ECOMMENDED O RDER
44This case came before Administrative Law Judge John G.
53Van Laningham , Division of Administrative Hearings ( Ñ DOAH Ò ) , for final
66hearing by Zoom teleconference on May 2 5, 20 2 1 , at sites in Tallahassee and
82Miami , Florida.
84A PPEARANCES
86For Petitioner: Michele Lara Jones , Esquire
92Miami - Dade County School Board
981 450 Northeast Seco nd Avenue , Suite 430
106Miami , Florida 3 3132
110For Respondent: Branden M. Vicari, Esquire
116Herdman & Sakellarides, P.A.
12029605 U.S. Highway 19 North, Suite 110
127Clearwater, Florida 33761 - 1526
132S TATEMENT OF T HE I SSUE S
140The issue s in this case are whether Respondent , a teacher, failed to
153comply with attendance policies, as Petitioner, a district school board , alleges;
164and, if so, whether the school board has just cause to suspend Respondent
177from her position for five days without pay .
186P RELIMINARY S TATEMENT
190At a meeting on Decemb er 9 , 20 20 , Petitioner Miami - Dade County School
205Board ( Ñ School Board Ò or the Ñ district Ò ) voted to suspend Respondent Phyllis
222G. Kirkland ( Ñ Kirkland Ò ) for five days without pay . Petitioner alleges that
238Kirkland , a middle - school teacher, violated attendance policies on two
249separate occasions during a single week in January 2020 by giving
260insufficient or untimely notice that she would be taking off a whole day of
274work due to an acute allergic reaction she was then having .
286Kirkland timely requested a formal administrative hearing by letter dated
296December 1 5, 20 20 . Petitioner referred the matter to DOAH for further
310proceedings , and this file was opened on December 18 , 20 20 . Upon
323assignment, the undersigned set the final hearing , which eventually took
333place on May 2 5, 20 2 1 .
342Meantime, o n February 1, 2021, Petitioner filed its Notice of Specific
354Charges . Therein, Petitioner alleged that, in addition to violating attendance
365policies, Kirkland Ñrefused[, on February 5, 2020,] to speak to the
377administrator or answer any questions of the administrator regarding a leave
388request. Ò This allegation was abandoned at hearing and will not be addressed
401further herein.
403At the final hearing, Petitioner called two witnesses, Maria Zabala
413and Bernard Osborn . Petitioner Ô s Exhibits 4 and 5 were offered , also, and
428received in evidence . Kirkland testified on her own behalf , and Respondent Ô s
442Exhibits 5 and 6 were admitted as well .
451The final hearing transcript was filed on July 22 , 20 2 1 . Each party timely
467filed a Proposed Re commended Order ( Ñ PRO Ò ) on August 2 , 202 1 . The parties Ô
487PROs have been considered in the preparation of this Recommended Order.
498Unless otherwise indicated, citations to the official statute law of the state
510of Florida refer to Florida Statutes 20 20 .
519F INDI NGS OF F ACT
5251 . The School Board is the constitutional entity authorized to operate,
537control, and supervise the Miami - Dade County Public School System.
5482 . At all times relevant to this matter, including specifically the 201 9 -
56320 20 school year, Kirkland was employed as a teacher at John F. Kennedy
577Middle School (ÑSchoolÒ) . Kirkland has been a district employee for
588approximately 35 years.
5913. The incidents for which the School Board proposes to suspend Kirkland
603for five days without pay occurred on two sep arate dates, namely Monday,
616January 27, 2020, and Thursday, January 30, 2020 . As alleged by the district
630in its Notice of Specific Charges dated February 1, 2021, Kirkland violated
642the SchoolÔs attendance policies as follows:
64814 . On January 27, 2020, Respo ndent [Kirkland]
657failed to comply with the attendance policies by
665calling after her work start time to say she would be
676late and thereafter calling to say she would not be at
687work for the day.
69115. On January 20 [sic], 2020, Respondent failed to
700comply wit h the attendance policies by taking a full
710day of leave without notifying the [SchoolÔs]
717administration .
7194 . A Summary of Conference - for - the - Record (ÑCFR SummaryÒ), which the
735district prepared on or about March 2, 2020, includes the additional
746allegations regarding the January 27, 2020, incident, that Kirkland Ñcalled
756the school at 8:03 am to say that [she] would be late . [She] called again at
7739:58 am saying [she] would not be in for the day.Ò
7845 . Regarding the January 30 incident, the CFR Summary contains t he
797more specific allegation that Kirkland Ñcalled the school at 8:46 m [sic]
809stating [she] was sick and would be taking half a sick day in the morning .
825[Kirkland] did no [sic] call or confirm that [she] would need a full sick day,
840which [she] took.Ò
8436 . It is undisputed that, during the week of January 27, 2020, Kirkland
857suffered an acute allergic reaction that required several trips to the doctor,
869including a n admission to the emergency room on January 28, 2020 . It is also
885undisputed that Kirkland had plent y of accrued sick leave, and that she was
899approved to take leave on the dates in question . There are, in short, no
914allegations that Kirkland called in sick without a legitimate reason . Nor is it
928alleged that Kirkland had unexcused absences . There are, furt her, no
940allegations of excessive absenteeism or tardiness . This case boils down to
952whether Kirkland gave sufficient and timely notice to the School of her need
965to take off work on January 27 and 30, 2020, due to a genuine medical
980condition . The district fa iled to prove that she did not.
9927 . Kirkland had a doctorÔs appointment at 8:00 a.m. on Jan uary 27, 2020 .
1008Because her doctorÔs off ice is located near the School, she planned to arrive at
1023work on time , by 8:30 a.m. , after seeing the doctor . Kirkland had kept
1037appointments with her doctor at this hour in the past without needing to take
1051time off , so she had reason to believe that she could stay on schedule . In this
1068instance, however, the doctor was running behind . Kirkland called the School
1080at around 8:03 a.m. to advise that she would be late for work as a result .
10978 . Kirkland was seen by her doctor at approximately 9:00 a.m . In addition
1112to the allergic reaction, KirklandÔs blood pressure was high . The d octor told
1126Kirkland not to report to work that day . Kirklan d followed her doctorÔs advice
1141and called the School right after her appointment ended . There is no evidence
1155of the precise time of this second phone call, b ut Kirkland testified credibly
1169that she placed it as soon as possible after learning that she shoul d stay
1184home and rest , and the district alleges that it received her call before
119710:00 a.m. , which is consistent with KirklandÔs testimony.
12059 . The district failed to adduce persuasive evidence of any specific
1217attendance policy that Kir kland might have violated on January 27, 2020 .
1230The complaint seems to be that she should have called the Schoo l sooner to
1245say that she would not be coming in to work that day . There is no evidence,
1262however, that Kirkland was required to call sooner than she did . Nor is the re
1278proof that it was objectively unreasonable, under the circumstances, for her
1289to have called when she did , which was (i ) shortly after learning that her
1304doctor thought it best she not work that day, and (ii) before 10:00 a.m .
131910 . K irkland returned to se e her doctor on the morning of January 30,
13352020. This visit was prompted, again, by an acute allergic reaction . There is
1349no dispute that Kirkland called the School not later than around 8 :45 a.m. to
1364request a half - dayÔs sick leave . As on the previous visit, however, the doctor
1380advised Kirkland, after examining her, that she should not return to work
1392that day . There is a dispute of fact as to what happened next.
140611 . The district alleges that Kirkland failed to notify the School that s he
1421would not be coming in to work at all that day . K irkland, for her part,
1438testified that she did, in fact, c all the School to advise that she would be
1454unable to wor k that day . Kirkland testified, further, that she watched her
1468doctor send a fax to the Scho ol, which contained medical information about
1481Kirkland, including a note to the effect that Kir kland was not cleared to work
1496on January 30, 2020.
150012 . The district call ed no witnesses having personal knowledge of whether
1513K irklandÔs testimony concerning the notice she claims the School was given
1525regarding her absence from work on January 30, 2020, is truthful or
1537untruthful . Nor , to prove the nonexistence of notice, did the district adduce
1550evidence showing the absence of an entry in any record where such an en try
1565routinely would have bee n made in the ordinary course of business , had
1578notice of KirklandÔs taking the day off to recover from an acute allergic
1591episode been given . Accordingly, t he d istrict failed to prove its allegation that
1606Kirkland took a full day of sick leave on January 30, 2020, without timely
1620requesting such leave. 1 KirklandÔs testimony that she called the School that
1632morning to report that she would be, unexpectedly, out for the day , and that
1646her doc tor faxed the School a contemporaneous note substan tiating the
1658medical grounds for such absence, is unrebutted and, thus, credited. 2
1669D ETERMINATIONS OF U LTIMATE F ACT
167613 . The district has failed to prove its allegations against Kirkland by a
1690preponderance of the evidence . It is, therefore, unnecessary to make findings
1702of fact concerning KirklandÔs disciplinary history, if any, for purposes of
1713applying the progressi ve discipline policy in this case, as there is no current
1727basis for discipline.
1730C ONCLUSIONS O F L AW
17361 4 . DOAH has personal and subject matter jurisdiction in this proceeding
1749pursuant to sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida Statutes.
17581 5 . A district school board employee against whom a disciplinary
1770proceeding has been initiated mu st be given written notice of the specific
1783charges prior to the hearing . Although the notice Ñ need not be set forth with
1799the technical nicety or formal exactness required of pleadings in court, Ò it
18121 The district also failed to prove the existence of a specific attendance policy requiring
1827Kirkland to request the day off for medical reasons within a particular time frame . Now, the
1844undersigned is aware, as a matter of common knowledge and from ordinary e xperience, that
1859any employee who is expected to show up for work at a time certain risks an adverse
1876employment action for failing to report for duty without giving his or her employer
1890reasonable advance notice . Had the evidence shown that Kirkland did this , the undersigned
1904would consider such conduct to be deserving of some corrective action, even in the absence of
1920a specific policy . He doubts whether a five - day suspension would be warranted for an isolated
1938occurrence taking place in the context of an acute (albeit non - emergency) medical condition,
1953but that question need not be reached here because the district did not establish the alleged
1969failure to give notice.
19732 In addition to being unrebutted, KirklandÔs testimony is consistent with the undisputed
1986fact s that her doctor had advised her not to work due to a genuine medical condition, and
2004that she had enough sick leave accrued to cover her absence . It is difficult to imagine why
2022Kirkland would not have notified the School that she needed to take the whole day off, since
2039she had nothing to lose by doing so, and (as far as the instant record shows) nothing to gain
2058by failing to call in.
2063should Ñ specify the [statute,] rule, [regulation, policy, or collective bargaining
2075provision] the [school board] alleges has been violated and the conduct which
2087occasioned [said] violation. Ò Jacker v. Sch. Bd. of Dade Cty. , 426 So. 2d 1149,
21021151 (Fla. 3d DCA 1983) (Jorgenson, J. concurring).
21101 6 . Once the school b oard, in its notice of specific charges, has delineated
2126the offenses alleged to justify termination, those are the only grounds upon
2138which dismissal may be predicated . See Lusskin v. Ag. for Health Care
2151Admin. , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottri ll v. Dep Ô t of Ins. ,
2169685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep Ô t of Bus. & Prof Ô l
2189Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v. Dep Ô t of Prof Ô l
2210Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Dep Ô t of Prof Ô l Reg.,
2230Bd. o f Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. den . , 576 So. 2d 295
2250(Fla. 1991).
22521 7 . In an administrative proceeding to suspend or dismiss a member of
2266the instructional staff, the school board, as the charging party, bears the
2278burden of proving, by a preponderance of the evidence, each element of the
2291charged offense(s) . See McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477
2306(Fla. 2d DCA 1996); Sublett v. Sumter Cty. Sch. Bd. , 664 So. 2d 1178, 1179
2321(Fla. 5th DCA 1995); MacMillan v. Nassau Cty. Sch . Bd. , 629 So. 2d 226
2336(Fla. 1st DCA 1993).
23401 8 . The instructional staff member Ô s guilt or innocence is a question of
2356ultimate fact to be decided in the context of each alleged violation . McKinney
2370v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson ,
2384653 So. 2d 489, 491 (Fla. 1st DCA 1995).
239319. The district presented insufficient proof that Kirkland violated a
2403specific attendance policy, failed to conform to an articula ble standard of
2415conduct, or even acted unreasonably under the circumsta nces .
2425R ECOMMENDATION
2427Based on the foregoing Findings of Fact and Conclusions of Law, it is
2440R ECOMMENDED that the Miami - Dade County School Board enter a final order
2454exonerating Phyllis G. Kirkland of all charges brought against h er in this
2467proceeding, reinstating Kirkland to h er pre - dismissal position, and awarding
2479Kirkland back salary as required under section 1012.33(6)(a) .
2488D ONE A ND E NTERED this 10th day of August , 202 1 , in Tallahassee, Leon
2504County, Florida.
2506S
2507J OHN G. V AN L ANINGHAM
2514Administrative Law Judge
25171230 Apalachee Parkway
2520Tallahassee, Florida 32399 - 3060
2525(850) 488 - 9675
2529www.doah.state.fl.us
2530Filed with the Clerk of the
2536Division of Administrative Hearings
2540this 10th day of August , 202 1 .
2548C OPIES F URNISHED :
2553Michele Lara Jones , Esquire Alberto M. Carvalho, Superintendent
2561Miami - Dade County School Board Miami - Dade County School Board
25731450 Northeast Second Avenue, Suite 430 1450 Northeast Second Avenue, Suite 912
2585Miami, Florida 33132 Miami, Florida 33132
2591Matthew Mears, General Counsel Branden M. Vicari, Esquire
2599Department of Education Herdman & Sakellarides, P.A.
2606Turlington Building, Suite 1244 29605 U.S. Highway 19 North, Suite 110
2617325 West Gaines Street Clearwater, Florida 33761 - 1526
2626Tallahassee, Florida 32399 - 0400
2631Richard Corcoran, Commissioner Mark Herdman, Esquire
2637of Education Herdman & Sakellarides, P.A.
2643Department of Education 29605 U.S. Highway 19 North, Suite 110
2653Turlington Building, Suite 1514 Clearwater, Florida 33761 - 1526
2662325 West Gaines Street
2666Tallahassee, Florida 32399 - 0400
2671N OTICE O F R IGHT T O S UBMIT E XCEPTIONS
2683All parties have the right to submit written exceptions within 15 days from
2696the date of this Recommended Order . Any exceptions to this Recommended
2708Order should be filed with the agency that will issue the Final Order in this
2723case.
- Date
- Proceedings
- PDF:
- Date: 09/30/2021
- Proceedings: Agency Final Order of the School Board of Miami-Dade County, Florida filed.
- PDF:
- Date: 08/10/2021
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 05/25/2021
- Proceedings: CASE STATUS: Hearing Held.
- Date: 05/20/2021
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 05/07/2021
- Proceedings: Order Granting Continuance and Rescheduling Hearing by Zoom Conference (hearing set for May 25, 2021; 9:00 a.m., Eastern Time).
- PDF:
- Date: 05/03/2021
- Proceedings: Respondent's Notice of Serving Responses to Petitioner's First Set of Interrogatories to Respondent filed.
- PDF:
- Date: 04/08/2021
- Proceedings: Order Granting Continuance and Rescheduling Hearing by Zoom Conference (hearing set for May 12, 2021; 9:00 a.m., Eastern Time).
- Date: 04/06/2021
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 03/03/2021
- Proceedings: Petitioner's Response to Respondent's First Request for Production to Petitioner filed.
- PDF:
- Date: 03/03/2021
- Proceedings: Petitioner's Notice of Serving Answers to Respondent's Interrogatories filed.
- PDF:
- Date: 02/09/2021
- Proceedings: Order Granting Continuance and Rescheduling Hearing by Zoom Conference (hearing set for April 14, 2021; 9:00 a.m., Eastern Time).
Case Information
- Judge:
- JOHN G. VAN LANINGHAM
- Date Filed:
- 12/16/2020
- Date Assignment:
- 12/18/2020
- Last Docket Entry:
- 09/30/2021
- Location:
- Miramar, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- TTS
Counsels
-
Mark Herdman, Esquire
Suite 110
29605 U.S. Highway 19 North
Clearwater, FL 337611526
(727) 785-1228 -
Michele Lara Jones, Esquire
Room 430
1450 Northeast 2nd Avenue
Miami, FL 33132
(305) 955-1304 -
Phyllis G. Kirkland
8436 Southwest 22nd Street
Miramar, FL 33025 -
Branden M. Vicari, Esquire
Suite 110
29605 U.S. Highway 19 North
Clearwater, FL 33761
(727) 785-1228 -
Branden M Vicari, Esquire
Address of Record