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


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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.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/30/2021
Proceedings: Agency Final Order of the School Board of Miami-Dade County, Florida filed.
PDF:
Date: 09/23/2021
Proceedings: Agency Final Order
PDF:
Date: 08/10/2021
Proceedings: Recommended Order
PDF:
Date: 08/10/2021
Proceedings: Recommended Order (hearing held May 25, 2021). CASE CLOSED.
PDF:
Date: 08/10/2021
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/02/2021
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 08/02/2021
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 07/22/2021
Proceedings: Notice of Filing Transcript.
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: 05/03/2021
Proceedings: Respondent's Proposed Exhibits filed.
PDF:
Date: 05/03/2021
Proceedings: Respondent's Proposed Witness List 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).
PDF:
Date: 04/07/2021
Proceedings: Joint Motion to Continue and Reschedule Final Hearing filed.
Date: 04/06/2021
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 04/05/2021
Proceedings: Notice of Filing Petitioner's List of Exhibits filed.
PDF:
Date: 04/05/2021
Proceedings: Pre-Hearing Stipulation filed.
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).
PDF:
Date: 02/09/2021
Proceedings: Petitioner's First Request for Production to Respondent filed.
PDF:
Date: 02/09/2021
Proceedings: Notice of Serving Interrogatories to Respondent filed.
PDF:
Date: 02/09/2021
Proceedings: Motion to Continue and Reschedule Final Hearing filed.
PDF:
Date: 02/01/2021
Proceedings: Respondent's Notice of Discovery Requests to Petitioner filed.
PDF:
Date: 02/01/2021
Proceedings: Notice of Specific Charges filed.
PDF:
Date: 01/14/2021
Proceedings: Notice of Appearance (Branden Vicari) filed.
PDF:
Date: 01/08/2021
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 01/08/2021
Proceedings: Notice of Hearing by Zoom Conference (hearing set for February 23, 2021; 9:00 a.m., Eastern Time).
PDF:
Date: 01/08/2021
Proceedings: Response to Initial Order filed.
PDF:
Date: 01/07/2021
Proceedings: Notice of Appearance (Mark Herdman) filed.
PDF:
Date: 12/21/2020
Proceedings: Order Granting Extension of Time.
PDF:
Date: 12/18/2020
Proceedings: Motion for Extension to Respond to Initial Order filed.
PDF:
Date: 12/18/2020
Proceedings: Initial Order.
PDF:
Date: 12/17/2020
Proceedings: Notice of Unavailability filed.
PDF:
Date: 12/17/2020
Proceedings: Notice of Unavailability filed.
PDF:
Date: 12/16/2020
Proceedings: Agency action letter filed.
PDF:
Date: 12/16/2020
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 12/16/2020
Proceedings: Referral Letter filed.

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

Related Florida Statute(s) (3):