20-005416TTS Miami-Dade County School Board vs. Phyllis G. Kirkland Status: Closed Recommended Order on Tuesday, August 10, 2021.

Summary: Petitioner did not prove that Respondent, a teacher, failed to comply with attendance policies, as alleged; recommended that Respondent not be suspended for five days without pay.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IAMI - D ADE C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 5416 TTS

P HYLLIS G. K IRKLAND ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge John G.

Van Laningham , Division of Administrative Hearings ( Ñ DOAH Ò ) , for final

hearing by Zoom teleconference on May 2 5, 20 2 1 , at sites in Tallahassee and

Miami , Florida.

A PPEARANCES

For Petitioner: Michele Lara Jones , Esquire

Miami - Dade County School Board

1 450 Northeast Seco nd Avenue , Suite 430

Miami , Florida 3 3132

For Respondent: Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 - 1526

S TATEMENT OF T HE I SSUE S

The issue s in this case are whether Respondent , a teacher, failed to

comply with attendance policies, as Petitioner, a district school board , alleges;

and, if so, whether the school board has just cause to suspend Respondent

from her position for five days without pay .

P RELIMINARY S TATEMENT

At a meeting on Decemb er 9 , 20 20 , Petitioner Miami - Dade County School

Board ( Ñ School Board Ò or the Ñ district Ò ) voted to suspend Respondent Phyllis

G. Kirkland ( Ñ Kirkland Ò ) for five days without pay . Petitioner alleges that

Kirkland , a middle - school teacher, violated attendance policies on two

separate occasions during a single week in January 2020 by giving

insufficient or untimely notice that she would be taking off a whole day of

work due to an acute allergic reaction she was then having .

Kirkland timely requested a formal administrative hearing by letter dated

December 1 5, 20 20 . Petitioner referred the matter to DOAH for further

proceedings , and this file was opened on December 18 , 20 20 . Upon

assignment, the undersigned set the final hearing , which eventually took

place on May 2 5, 20 2 1 .

Meantime, o n February 1, 2021, Petitioner filed its Notice of Specific

Charges . Therein, Petitioner alleged that, in addition to violating attendance

policies, Kirkland Ñrefused[, on February 5, 2020,] to speak to the

administrator or answer any questions of the administrator regarding a leave

request. Ò This allegation was abandoned at hearing and will not be addressed

further herein.

At the final hearing, Petitioner called two witnesses, Maria Zabala

and Bernard Osborn . Petitioner Ô s Exhibits 4 and 5 were offered , also, and

received in evidence . Kirkland testified on her own behalf , and Respondent Ô s

Exhibits 5 and 6 were admitted as well .

The final hearing transcript was filed on July 22 , 20 2 1 . Each party timely

filed a Proposed Re commended Order ( Ñ PRO Ò ) on August 2 , 202 1 . The parties Ô

PROs have been considered in the preparation of this Recommended Order.

Unless otherwise indicated, citations to the official statute law of the state

of Florida refer to Florida Statutes 20 20 .

F INDI NGS OF F ACT

1 . The School Board is the constitutional entity authorized to operate,

control, and supervise the Miami - Dade County Public School System.

2 . At all times relevant to this matter, including specifically the 201 9 -

20 20 school year, Kirkland was employed as a teacher at John F. Kennedy

Middle School (ÑSchoolÒ) . Kirkland has been a district employee for

approximately 35 years.

3. The incidents for which the School Board proposes to suspend Kirkland

for five days without pay occurred on two sep arate dates, namely Monday,

January 27, 2020, and Thursday, January 30, 2020 . As alleged by the district

in its Notice of Specific Charges dated February 1, 2021, Kirkland violated

the SchoolÔs attendance policies as follows:

14 . On January 27, 2020, Respo ndent [Kirkland]

failed to comply with the attendance policies by

calling after her work start time to say she would be

late and thereafter calling to say she would not be at

work for the day.

15. On January 20 [sic], 2020, Respondent failed to

comply wit h the attendance policies by taking a full

day of leave without notifying the [SchoolÔs]

administration .

4 . A Summary of Conference - for - the - Record (ÑCFR SummaryÒ), which the

district prepared on or about March 2, 2020, includes the additional

allegations regarding the January 27, 2020, incident, that Kirkland Ñcalled

the school at 8:03 am to say that [she] would be late . [She] called again at

9:58 am saying [she] would not be in for the day.Ò

5 . Regarding the January 30 incident, the CFR Summary contains t he

more specific allegation that Kirkland Ñcalled the school at 8:46 m [sic]

stating [she] was sick and would be taking half a sick day in the morning .

[Kirkland] did no [sic] call or confirm that [she] would need a full sick day,

which [she] took.Ò

6 . It is undisputed that, during the week of January 27, 2020, Kirkland

suffered an acute allergic reaction that required several trips to the doctor,

including a n admission to the emergency room on January 28, 2020 . It is also

undisputed that Kirkland had plent y of accrued sick leave, and that she was

approved to take leave on the dates in question . There are, in short, no

allegations that Kirkland called in sick without a legitimate reason . Nor is it

alleged that Kirkland had unexcused absences . There are, furt her, no

allegations of excessive absenteeism or tardiness . This case boils down to

whether Kirkland gave sufficient and timely notice to the School of her need

to take off work on January 27 and 30, 2020, due to a genuine medical

condition . The district fa iled to prove that she did not.

7 . Kirkland had a doctorÔs appointment at 8:00 a.m. on Jan uary 27, 2020 .

Because her doctorÔs off ice is located near the School, she planned to arrive at

work on time , by 8:30 a.m. , after seeing the doctor . Kirkland had kept

appointments with her doctor at this hour in the past without needing to take

time off , so she had reason to believe that she could stay on schedule . In this

instance, however, the doctor was running behind . Kirkland called the School

at around 8:03 a.m. to advise that she would be late for work as a result .

8 . Kirkland was seen by her doctor at approximately 9:00 a.m . In addition

to the allergic reaction, KirklandÔs blood pressure was high . The d octor told

Kirkland not to report to work that day . Kirklan d followed her doctorÔs advice

and called the School right after her appointment ended . There is no evidence

of the precise time of this second phone call, b ut Kirkland testified credibly

that she placed it as soon as possible after learning that she shoul d stay

home and rest , and the district alleges that it received her call before

10:00 a.m. , which is consistent with KirklandÔs testimony.

9 . The district failed to adduce persuasive evidence of any specific

attendance policy that Kir kland might have violated on January 27, 2020 .

The complaint seems to be that she should have called the Schoo l sooner to

say that she would not be coming in to work that day . There is no evidence,

however, that Kirkland was required to call sooner than she did . Nor is the re

proof that it was objectively unreasonable, under the circumstances, for her

to have called when she did , which was (i ) shortly after learning that her

doctor thought it best she not work that day, and (ii) before 10:00 a.m .

10 . K irkland returned to se e her doctor on the morning of January 30,

2020. This visit was prompted, again, by an acute allergic reaction . There is

no dispute that Kirkland called the School not later than around 8 :45 a.m. to

request a half - dayÔs sick leave . As on the previous visit, however, the doctor

advised Kirkland, after examining her, that she should not return to work

that day . There is a dispute of fact as to what happened next.

11 . The district alleges that Kirkland failed to notify the School that s he

would not be coming in to work at all that day . K irkland, for her part,

testified that she did, in fact, c all the School to advise that she would be

unable to wor k that day . Kirkland testified, further, that she watched her

doctor send a fax to the Scho ol, which contained medical information about

Kirkland, including a note to the effect that Kir kland was not cleared to work

on January 30, 2020.

12 . The district call ed no witnesses having personal knowledge of whether

K irklandÔs testimony concerning the notice she claims the School was given

regarding her absence from work on January 30, 2020, is truthful or

untruthful . Nor , to prove the nonexistence of notice, did the district adduce

evidence showing the absence of an entry in any record where such an en try

routinely would have bee n made in the ordinary course of business , had

notice of KirklandÔs taking the day off to recover from an acute allergic

episode been given . Accordingly, t he d istrict failed to prove its allegation that

Kirkland took a full day of sick leave on January 30, 2020, without timely

requesting such leave. 1 KirklandÔs testimony that she called the School that

morning to report that she would be, unexpectedly, out for the day , and that

her doc tor faxed the School a contemporaneous note substan tiating the

medical grounds for such absence, is unrebutted and, thus, credited. 2

D ETERMINATIONS OF U LTIMATE F ACT

13 . The district has failed to prove its allegations against Kirkland by a

preponderance of the evidence . It is, therefore, unnecessary to make findings

of fact concerning KirklandÔs disciplinary history, if any, for purposes of

applying the progressi ve discipline policy in this case, as there is no current

basis for discipline.

C ONCLUSIONS O F L AW

1 4 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida Statutes.

1 5 . A district school board employee against whom a disciplinary

proceeding has been initiated mu st be given written notice of the specific

charges prior to the hearing . Although the notice Ñ need not be set forth with

the technical nicety or formal exactness required of pleadings in court, Ò it

1 The district also failed to prove the existence of a specific attendance policy requiring

Kirkland to request the day off for medical reasons within a particular time frame . Now, the

undersigned is aware, as a matter of common knowledge and from ordinary e xperience, that

any employee who is expected to show up for work at a time certain risks an adverse

employment action for failing to report for duty without giving his or her employer

reasonable advance notice . Had the evidence shown that Kirkland did this , the undersigned

would consider such conduct to be deserving of some corrective action, even in the absence of

a specific policy . He doubts whether a five - day suspension would be warranted for an isolated

occurrence taking place in the context of an acute (albeit non - emergency) medical condition,

but that question need not be reached here because the district did not establish the alleged

failure to give notice.

2 In addition to being unrebutted, KirklandÔs testimony is consistent with the undisputed

fact s that her doctor had advised her not to work due to a genuine medical condition, and

that she had enough sick leave accrued to cover her absence . It is difficult to imagine why

Kirkland would not have notified the School that she needed to take the whole day off, since

she had nothing to lose by doing so, and (as far as the instant record shows) nothing to gain

by failing to call in.

should Ñ specify the [statute,] rule, [regulation, policy, or collective bargaining

provision] the [school board] alleges has been violated and the conduct which

occasioned [said] violation. Ò Jacker v. Sch. Bd. of Dade Cty. , 426 So. 2d 1149,

1151 (Fla. 3d DCA 1983) (Jorgenson, J. concurring).

1 6 . Once the school b oard, in its notice of specific charges, has delineated

the offenses alleged to justify termination, those are the only grounds upon

which dismissal may be predicated . See Lusskin v. Ag. for Health Care

Admin. , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottri ll v. Dep Ô t of Ins. ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep Ô t of Bus. & Prof Ô l

Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v. Dep Ô t of Prof Ô l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Dep Ô t of Prof Ô l Reg.,

Bd. o f Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. den . , 576 So. 2d 295

(Fla. 1991).

1 7 . In an administrative proceeding to suspend or dismiss a member of

the instructional staff, the school board, as the charging party, bears the

burden of proving, by a preponderance of the evidence, each element of the

charged offense(s) . See McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477

(Fla. 2d DCA 1996); Sublett v. Sumter Cty. Sch. Bd. , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995); MacMillan v. Nassau Cty. Sch . Bd. , 629 So. 2d 226

(Fla. 1st DCA 1993).

1 8 . The instructional staff member Ô s guilt or innocence is a question of

ultimate fact to be decided in the context of each alleged violation . McKinney

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

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

19. The district presented insufficient proof that Kirkland violated a

specific attendance policy, failed to conform to an articula ble standard of

conduct, or even acted unreasonably under the circumsta nces .

R ECOMMENDATION

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

R ECOMMENDED that the Miami - Dade County School Board enter a final order

exonerating Phyllis G. Kirkland of all charges brought against h er in this

proceeding, reinstating Kirkland to h er pre - dismissal position, and awarding

Kirkland back salary as required under section 1012.33(6)(a) .

D ONE A ND E NTERED this 10th day of August , 202 1 , in Tallahassee, Leon

County, Florida.

S

J OHN G. V AN L ANINGHAM

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 10th day of August , 202 1 .

C OPIES F URNISHED :

Michele Lara Jones , Esquire Alberto M. Carvalho, Superintendent

Miami - Dade County School Board Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430 1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132 Miami, Florida 33132

Matthew Mears, General Counsel Branden M. Vicari, Esquire

Department of Education Herdman & Sakellarides, P.A.

Turlington Building, Suite 1244 29605 U.S. Highway 19 North, Suite 110

325 West Gaines Street Clearwater, Florida 33761 - 1526

Tallahassee, Florida 32399 - 0400

Richard Corcoran, Commissioner Mark Herdman, Esquire

of Education Herdman & Sakellarides, P.A.

Department of Education 29605 U.S. Highway 19 North, Suite 110

Turlington Building, Suite 1514 Clearwater, Florida 33761 - 1526

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

N OTICE O F 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 exceptions to this Recommended

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

case.