STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

v. ) CASE NO. 88-1370

)

JOE RAYMOND JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Clearwater, Florida, on May 6, 1988 before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent should be dismissed from employment with the Petitioner, School Board of Pinellas County, or otherwise disciplined.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

School Board Attorney 1960 East Druid Road

Clearwater, Florida 34624

For Respondent: B. Edwin Johnson, Esquire

1433 South Ft. Harrison Avenue, Suite C Clearwater, Florida 34616

BACKGROUND INFORMATION

On February 15, 1988, Dr. Scott N. Rose, Superintendent of Schools for Pinellas County, Florida, advised Respondent, by letter, that he was recommending Respondent's dismissal from employment with the Pinellas County Schools because of his excessive tardiness. Respondent, through counsel, requested a formal hearing and the matter was referred to the Division of Administrative Hearings for appointment of a hearing officer. The undersigned set the case for hearing on May 6, 1988, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Dennis Nels Nelson, Respondent's immediate supervisor at St. Petersburg High School; Gary H. Jones, Head Plant operator there; and William R. Grey, Principal of that school.

Petitioner also introduced Petitioner's Exhibits 1-3, 9, 10-15, and 17. Respondent testified in his own behalf and introduced Respondent's Exhibit A.

No transcript of the proceedings was furnished. Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, Joe Raymond Johnson was employed as a plant operator (janitor), at St. Petersburg High School. His employment was subject to labor conditions outlined in an agreement between the School Board of Pinellas County and the International Brotherhood of Firemen and Oilers, AFL-CIO, Local 1221. He has worked at the school since December, 1980.

   
   

2. Respondent's immediate supervisor was Dennis N. Nelson, the night foreman who supervises the night crew of 10 plant operators (janitors). The night crew duty hours were from 2:30 - 11:00 p.m., Monday through Friday. At all times material hereto, Respondent was assigned to the night crew.

   
   

3. The plant operators, of whom Respondent is one, are advised at periodic meetings of their duty hours, reporting times, break times, and lunch times, and other facets of their employment. In addition, this same information is posted on the bulletin board in the maintenance office. As a part of their employment orientation, the plant operators, including Respondent, were told how to make arrangements for excused absences and tardiness. They were advised to call in, in advance, and advise Mr. Jones, the Head Plant operator, that they would be late or absent and why. If Mr. Jones is not available, the worker is to leave a message for him with either a secretary in the administrative office or a student working in that office, who is to place the message in Mr. Jones' box for subsequent pick-up. Respondent was personally advised of this procedure by Mr. Nelson, his immediate supervisor.

   
   

4. On July 5, 1987, Respondent signed a Stipulation of Agreement with the School Board whereby he was suspended without pay for three days because of a continuing history of unexcused tardiness up to that time. The Stipulation was signed by School Board officials on August 11 and August 26, 1987. On August 27, 1987, the Director of Personnel Services, Pinellas County Schools, advised Respondent by letter that the suspension had been approved and cautioning him that future infractions might lead to further disciplinary action, to include dismissal.

   
   

5. Subsequent to July 13, 1987, even after signing the Stipulation relating to his prior tardiness, and accepting punishment therefor, Respondent continued to be tardy without excuse or prior notice as called for in the school procedure. Specifically, he was late as follows:

   
   

   July 13, 1987 - 3 minutes late

   August 13, 1987 - 8 minutes late

   August 17, 1987 - 2 minutes late

   August 26, 1987 - 5 minutes late

   September 24, 1987 - 42 minutes late

   September 30, 1987 - 1 minute late

   October 10, 1987 - 4 minutes

   October 16, 1987 - 32 minutes late

   November 4, 1987 - 1 minute late

   November 11, 1987 - 13 minutes late

   December 3, 1987 - 4 minutes late from lunch

   December 8, 1987 - 13 minutes late from lunch

   February 21, 1988 - 21 minutes late

   
   

6. As a result of this continuing tardiness, on October 19, 1987, Respondent was called to a conference with the Principal, Mr. Grey, who advised

   him of the continuing problem. Respondent professed to be unaware of the problem and claimed discrimination by his supervisors. Nonetheless, Mr. Grey advised Respondent to be punctual in the future upon pain of further disciplinary action. When asked to sign a copy of the memorandum memorializing this conference, Respondent refused to do so.

   
   

7. On December 16, 1987, Mr. Jones, the Head Plant operator, wrote to Mr. Johnson outlining a series of unexcused tardies and absences in early December, 1987 and indicating he was referring the matter to the Principal for action. Respondent, again, refused to acknowledge this communication.

   
   

8. On January 21, 1988, Mr. Jones again wrote to Respondent noting a thirteen minute tardiness that day and again referring the matter to the Principal. As was the case with previous communications, Respondent refused to sign in acknowledgement.

   
   

9. According to Mr. Nelson, Respondent failed to call in on any one of the above-mentioned tardiness in advance as was required. He admits that Respondent is generally a good worker but was the subject of some other, unidentified disciplinary problems during the period of his employment. These not being further identified or supported, they are hereby disregarded.

   
   

10. Mr. Grey, the Principal, personally spoke with Respondent about his lateness on several occasions. Initially Respondent offered no explanation for his tardiness but with regard to the last two incidents, indicated he had physical problems. Respondent also, on one occasion, indicated to Mr. Grey that the plant operator, Mr. Jones, was prejudiced against him. Mr. Grey did not believe Respondent's representations to him that he had tried to call in to say he would be late. After the last referral from Mr. Jones, Mr. Grey decided that more stringent disciplinary action was appropriate and recommended to the Superintendent of Schools that Respondent be dismissed. This recommendation was based upon his own interviews with the Respondent and the reports of Respondent's supervisors. While admittedly other janitorial personnel have been tardy without a recommendation for dismissal, their records are not as aggravated as that of Respondent who continued his tardiness regardless of repeated counselings and warnings. Even though Respondent has not been late since February, 1988, Mr. Grey still feels he should be dismissed because regardless of the counselings, Respondent was repeatedly tardy until this present dismissal action was initiated.

    
    

11. Mr. Johnson, who is fifty-one years old, has worked for the School Board continuously since December, 1980, and this job is his sole source of income. He admits that there was justification for the three day suspension imposed on him previously but contends that as to the latter incidents being used to support the current action, he called in in advance on most - at least those of significance. He does not consider one or two minutes beyond the starting time as being late, however. That much time could be expended waiting in line to clock in. As to these short periods, he asserts he was there on time but had to wait to sign in and by the time it was his turn, he was late by one or two minutes. What Respondent overlooks, however, is that the sign in clock was purposely set between two and three minutes slow for just that purpose. Consequently, if the clock showed Respondent to be two minutes late, he was, in reality, between four and five minutes late - well beyond the delay time.

    
    

12. Respondent also contends without any evidence to support his contention, that the clock was ordinarily inaccurate and was adjusted purposely to entrap employees. Evidence introduced by Petitioner, however, indicates the

    clock was periodically checked and found to be accurate, except in times of power outages not pertinent here, until it was replaced when it broke down for a week. During that period, however, Respondent was not late.

    
    

13. As stated above, Respondent claims that he did call in when he would be significantly late and leave a message with the student who answered. To support his claim, he asserts that neither Nelson nor Jones ever complained to him on those occasions. When he would see them after arrival, they would acknowledge his presence and say they were glad he had made it. On one of these occasions, September 30, 1987, on which date he was forty-two minutes late, he had car trouble and told Mr. Jones about it, when he arrived. During this same period from July, 1987 to January, 1988, he was having physical problems and was under a doctor's care; a fact which he made known to both Jones and Nelson. At one point, he brought in a doctor's certificate which he discussed with the Assistant Principal who told him to leave it in the Principal's box. The Principal denied receiving it, however. These assertions do not, however, establish that Respondent followed the school rules and called in in advance when he was going to be late.

    
    

14. Respondent claims that though the school administration is claiming his tardiness as the basis for this dismissal action, in reality it is because of an altercation he had with Mr. Jones over a period of sick leave. In the incident in reference, Respondent had been to the doctor and upon his return to school, signed an application for sick leave furnished to him by Mr. Jones who had indicated it would be approved. When he saw it later, he noted that sick leave had been disapproved. When he spoke with Mr. Jones about this, Jones allegedly told him he didn't have any sick leave accrued. Respondent called the district payroll office and reportedly was told he did have sick leave available, but when Respondent reported this to Jones, Jones supposedly said it didn't matter, he wasn't going to get it. When Respondent complained to the Assistant Principal, the matter was referred back to Jones for resolution. Respondent was counseled about this incident in writing by the Principal and believes it is the real basis for the disciplinary action. Both Grey and Jones deny this, however, and in light of the Respondent's repeated lateness, it is found that the basis for this action is the lateness and not the other matter. Mr. Grey admits that Respondent's tardiness was documented with a view toward disciplinary action but not because of this incident. The documentation was begun before the incident in question and relates solely to the continuing tardiness.

    
    

15. Respondent has not been late since January 21, 1988, because he fears the separation action. He made up his mind to be on time and he has been on time.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

17. Article 18 of the Agreement Between the School Board of Pinellas County, Florida and the International Brotherhood of Firemen and Oilers, AFL- CIO, Local 1221, covering the period 1985-1988, and provides for work rules including Respondent's employment with Petitioner here. Under the terms of the agreement, employees who cannot report for work for any reason, including tardy, are to contact their supervisor no later than the scheduled start of their work day. Failure to call and report without a good and sufficient cause may be cause for disciplinary action.

18. Progressive discipline is envisioned under the terms of the agreement (Art 29 G (2)). When any disciplinary measure is imposed on a current charge, the supervisor will not take into consideration any prior infractions of the rules which occurred more than two years previously.

    
    

19. Here the Petitioner attempts to discharge Respondent from employment as the follow-on disciplinary action in a series stemming from his continuing tardiness over a period of several months, but well within the two year limitation. The total period of tardiness over the thirteen separately identified incidents is one hundred and eighty-one minutes, or slightly over three hours. Of the thirteen tardies, seven were for a duration of five minutes or less. The remaining incidents were for periods of from eight to forty-two minutes. Of this latter group, at least one is supposed to be the result of a misunderstanding where Respondent thought he was to report later than called for. In this case, however, as in the others, Respondent's explanations ring hollow. The evidence clearly reflects that Respondent was repeatedly tardy and that he either had no excuse or failed to call in in advance as was required. His tardiness provides a basis for disciplinary action, therefore, and the question for resolution is the appropriate action to be taken.

    
    

20. Dismissal, as proposed by Petitioner, is a more severe form of discipline than that taken for Respondent's prior offenses, the suspension imposed in July, 1987. However, to jump from a three day suspension to dismissal, while legally permissible, appears to be overly harsh. Respondent has shown by his current timeliness that he can be on time and wants to keep his employment. His eight years of experience are valuable to the school system and should not be dispensed with lightly. If Respondent has now learned the lesson of timeliness he can serve as a productive employee. While disciplinary action is appropriate, it should be less than outright dismissal but more severe than a three day suspension.

RECOMMENDATION

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

RECOMMENDED that Respondent, Joe Raymond Johnson be suspended without pay from employment with the School Board of Pinellas County for thirty days.

RECOMMENDED this 7th day of June, 1988, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1370

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By the Petitioner NONE

By the Respondent

1 - 2. Accepted and incorporated herein.

1. Accepted.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. Accepted.

5. Accepted and incorporated herein.

8 - 10. Accepted and incorporated herein.

11 - 14. Accepted and incorporated herein.

1. Rejected as not entirely supported by of record.

2. Accepted and incorporated herein.

17 - 18. Accepted and incorporated herein.

19. Accepted.

20 - 21. Accepted and incorporated herein.

COPIES FURNISHED:

Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Clearwater, Florida 34624

B. Edwin Johnson, Esquire

1433 South Ft. Harrison Avenue Suite C

Clearwater, Florida 34616

Betty Castor

Commissioner of Education The Capitol

Tallahassee, Florida 32399

Scott N. Rose, Ed.D.

Superintendent

School Board of Pinellas County

1960 East Druid Road Post Office Box 4688

Clearwater, Florida 34618-4688

Docket for Case No: 88-001370

Orders for Case No: 88-001370