STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3316

)

BARBARA A. BRYANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 1, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: Lorraine C. Hoffman, Esquire

2929 Southeast Third Avenue, Suite One Miami, Florida 33129

BACKGROUND

By action taken at a meeting on May 11, 1988, petitioner, School Board of Dade County, dismissed respondent, Barbara A. Bryant, from her job as a continuing contract teacher effective March 19, 1988, on the ground she abandoned her job. Thereafter, by letter dated June 24, 1988, respondent timely requested a hearing to contest the action. The matter was referred to the Division of Administrative Hearings by petitioner on July 5, 1988, with a request that a Hearing Officer be assigned to conduct a hearing. On August 31, 1988, a Notice of Specific Charges was issued by the Board. The Notice set out in detail the basis for the Board's action and alleged generally that Bryant was willfully and/or continuously absent from her duties without leave in violation of Section 231.44, Florida Statutes (1987). On October 28, 1988, the case was transferred from Hearing Officer Joyous D. Parrish to the undersigned.

By notice of hearing dated August 2, 1988, a final hearing was scheduled on September 29 and 30, 1988, in Miami, Florida. At respondent's request, the matter was continued to November 1, 1988, at the same location. At final hearing, petitioner presented the testimony of Robert L. Heath, principal at Santa Clara Elementary School, Kathleen McIssac, a worker's compensation claims supervisor, Margaret Williamson-Lauren, school board claims coordinator, and Dr. Joyce Annunziata, supervisor of petitioner's office of professional standards.

It also offered petitioner's exhibits 1-8. All exhibits were received in evidence. Respondent presented the testimony of Yvonne Perez, a United Teachers

of Dade representative, and testified on her own behalf. She also offered respondent's exhibits 1-6. All exhibits were received in evidence. Finally, at respondent's request, the undersigned took official recognition of the existing contract between petitioner and the United Teachers of Dade.

The transcript of final hearing (two volumes) was filed on December 5, 1988. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on December 19 and 22, 1988, respectively. A ruling on each proposed finding of fact is contained in the Appendix attached to this Recommended Order.

At issue is whether respondent should be dismissed from her job as proposed in the Notice of Specific Charges issued on August 31, 1988.

Based upon all the evidence, the following findings of fact are determined; FINDINGS OF FACT

1. At all times relevant hereto, respondent, Barbara A. Bryant, was a first grade teacher at Santa Clara Elementary School (SCES) in Miami, Florida. She was under a continuing contract as a teacher for petitioner, School Board of Dade County (Board), and with the exception of an eighteen month period, has been an elementary or junior high school teacher in the school system continuously since September 1973.

   
   

2. On May 11, 1988, the Board voted to dismiss Bryant as a teacher effective March 19, 1988. As clarified later by discovery, the Board's action was predicated on the charge that Bryant "abandoned her position." However, the Board did not issue formal notice of its action until August 31, 1988, when it issued a notice of specific charges setting forth in detail the basis for its action. According to the notice, Bryant had been absent 21-1/2 days between January 21 and March 2, 1988, and that such absences were "deliberate," "continuous" and "unauthorized." Although no formal point of entry was offered in or after the Board's decision on May 11, 1988, respondent learned of this action and requested a formal hearing to contest the charges.

   
   

3. Bryant began teaching at SCES in school year 1986-87. She was assigned to the first grade. She returned to the same assignment for school year 1987-

1. From September 2 until October 13, 1987, Bryant was absent ten days and late to work on eleven other days. Although Bryant had accrued six days of leave when these absences occurred, it is disputed as to whether leave was authorized for those absences. However, resolution of this dispute is unnecessary to reach the merits of the controversy. In any event, SCES's principal, Robert L. Heath, held a conference with respondent on October 13 and told her she must improve her attendance and punctuality.

   
   

   1. On the morning of October 19, 1987, respondent was walking in a hallway outside of a classroom when she slipped on what she described as a freshly waxed floor with new tile. According to Bryant, she suffered a "pinched nerve" which has caused lower back pain since the accident. Bryant went immediately to Heath who directed her to go to a local hospital emergency room.

      
      

   2. When Heath was unable to determine if Bryant had actually seen a doctor on October 19, he telephoned her at home the next day and was told by respondent that she had not yet seen a doctor. Heath advised her to do so immediately and have the doctor call him so he could give her an authorized absence and make plans for a substitute teacher if one was needed. Bryant eventually visited a

      hospital emergency room and was examined by a physician around October 26. Based upon the examination, the doctor concluded Bryant was able to return to work.

      
      

   3. Heath received no communication from Bryant or a physician during the two week period after the October 19 conversation. On November 3, he again telephoned Bryant who told him she had seen a doctor but did not agree with his opinion that she was able to return to work. Heath told her she must have a doctor contact him so he could determine her work status. Also, he gave her five days to do this.

      
      

   4. Following the above conversation, there occurred a series of communications and conversations between Heath and Bryant concerning her injury and the need for Bryant to get a medical statement and fill out worker's compensation paperwork. During the next few weeks, Bryant visited two more doctors. The third doctor agreed the injury necessitated her being absent from work. Eventually, the Board approved Bryant's absences as being caused by an injury in the line of duty and excused her from teaching duties from October 19 until December 3, 1987. She also received worker's compensation benefits from October 27 through November 2, and from November 12 through December 2. On November 26, Bryant telephoned Heath and advised him she would return to work on January 4, 1988.

      
      

   5. On December 4, 1987, Bryant was placed on "light duty" status by her doctor. By this time, her worker's compensation benefits had also ended. However, she continued to remain away from work for the remainder of 1987 and eventually received pay for part of her absences. She received no work instructions during this period of time.

      
      

   6. It is unknown if or when Heath became aware of Bryant's "light duty" status. However, based upon Bryant's earlier advice, Heath expected Bryant to return to work on January 4, 1988, which was the first school day after the Christmas holidays. When Bryant had not reported to work by January 6, Heath telephoned her. Bryant said nothing of her "light duty" status and advised Heath she would be absent the rest of the school year due to her injury and that she would furnish a medical note confirming this. When Heath requested the name of her physician, Bryant was unable to give a name. Based upon this conversation, Heath decided to advise the Board's office of professional standards (OPS) of the situation. That office investigates matters that might culminate in disciplinary action being taken against an employee.

      
      

   7. Sometime in December, the Board's worker's compensation carrier advised the Board's office of risk management that Bryant was no longer under active medical care and that she was able to return to work in a "light duty" status. This meant she could perform an alternative work assignment but not her regular teaching duties. For some reason, Bryant was not told to report to an alternative work assignment until January 21, 1988. This advice was conveyed to her by letter from the office of worker's compensation dated January 19, and which instructed her to report to the Board's risk management department on January 21. This assignment was considered "light duty" and required Bryant to file papers in the health benefits section.

      
      

   8. Unaware of the above scenario, the supervisor of OPS, Dr. Joyce Annunziata, advised Bryant by certified mail on January 20, 1988 that she had been absent without authorized leave and must respond to the letter within five days or else termination proceedings would begin. Bryant did not respond to the letter. However, after learning that Bryant had reported to an alternative work

      assignment on January 21 and was then under the supervision of risk management, OPS did not consider the matter to be in a "disciplinary mode." Accordingly, OPS took no action regarding Bryant's failure to respond.

      
      

   9. On January 21, Bryant reported to her alternate work assignment. However, she frequently complained of not feeling well and having lower back pain. Between January 21, and February 29, 1988, she was absent without authorized leave 21-1/2 days. None of these absences was authorized or approved by her supervisor and all were recorded on the payroll records as "leave without pay." During this same period, Bryant missed several school-scheduled doctor appointments and failed to produce any medical documentation to justify her absences. In addition, the office's supervisor spoke with Bryant concerning her attendance problems. Bryant blamed her absences on the back injury and other "personal problems." After the attendance problems persisted, the supervisor instructed Bryant on February 29 to see a doctor about the injury and advised her that the matter was being referred to OPS for possible disciplinary action. Bryant never returned to work after that date. This was because the Board took the position that she could not work in any capacity after March 2, 1988. Thus, any absences after that date are irrelevant to the charges in the notice.

      
      

   10. On March 2, 1988, Bryant's case was formally turned over to OPS. The following day Dr. Annunziata sent, by certified mail to Bryant's home address, a notice of a conference for the record to be held on March 14, concerning Bryant's attendance problems. The letter was never claimed by Bryant, and she did not attend the conference.

       
       

   11. On March 16, 1988, Dr. Annunziata sent a second letter by certified mail to Bryant. It was identical to the letter previously sent on January 20, and directed Bryant to contact OPS within five days after March 16. Bryant signed for the letter on March 23, or after the five day time period. About the same time, Bryant telephoned Dr. Annunziata and was told to attend a conference for the record on April 19, 1988, and to bring documentation to substantiate her injury. During the conversation, Bryant said her absences were due to other medical problems a break-in at her house on April 1, her own personal problems and legal problems experienced by her son. Bryant promised to bring documentation concerning these other medical problems to the meeting.

       
       

   12. Bryant missed the conference on the morning of April 19, but reported to Dr. Annunziata later that day and gave several excuses for missing the conference, none of which related to her injury. She was told to seek counseling and to contact her union representative. The Board's dismissal action followed on May 11.

       
       

   13. At hearing, Bryant described her injury as a pinched nerve that has caused recurring back pain and required her to wear a brace. She justified her absences from work because of intense back pain that sometimes prevented her from walking and from even performing light duty. Bryant added that she never filled out a leave request form because of advice from risk management that none was needed for a work-related injury. Bryant denied she was absent twenty-one and one-half days between January 21 and February 29, 1988 and maintained she was absent no more than ten days. As to those absences, she claimed that several were authorized by Dr. Annunziata. However, these assertions were unsubstantiated and are hereby rejected as being incredible. Notwithstanding all of these problems, Bryant desires to return to work as a teacher in the system.

   14. The union contract contains a provision which allows an employee to apply for and automatically receive thirty days of extended sick leave without pay after all sick leave has been exhausted. Until final hearing, however, Bryant never claimed she was utilizing this provision to excuse her absences between January 21 and February 29, 1988.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

       
       

   16. According to the notice of specific charges, the Board relies upon Section 231.44, Florida Statutes (1987), as a basis for terminating Bryant. That section reads as follows:

       
       

       Absence without leave. -- Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board.

       
       

       Because Bryant's job, but not her teaching certificate, is at stake, the Board need only prove the allegations in the notice of specific charges by the preponderance of evidence.

       
       

   17. The notice cites Bryant as being absent without leave or authorization on 21-1/2 days between January 21 and March 2, 1988. Also, it alleges that the absences were "deliberate and/or continuous" and were done "willfully." 1/ This charge will be discussed below.

       
       

   18. Because of a lack of communication or coordination between the principal, OPS and office of worker's compensation, Bryant's status remained in a muddled state from October 1987 until late January 1988. Nonetheless, Bryant had specific instructions to report to work effective January 21, 1988. The preponderance of the evidence shows that Bryant was absent on 21-1/2 days between January 21 and March 2, 1988. None of these absences were approved or authorized by her supervisor. Indeed, leave was never formally requested by Bryant, and she presented no medical certificate to her supervisors attesting to her inability or incapacity to report for light duty. Also, she failed to advise any person that she was availing herself of the provision in the union contract that allowed an employee to absent herself for up to thirty days without pay, assuming that Bryant was eligible to utilize that provision. The only competent and credible evidence of record on the issue of Bryant's work status is that Bryant was placed on light duty in early December and was medically able to return to work after that time. Therefore, since all absences between January 21 and March 2, 1988 were without authorization, they must be presumed to be willful and deliberate. Such conduct accordingly falls within the purview of Section 231.44, Florida Statutes (1987) and constitutes a valid basis for termination of the employee.

       
       

   19. A final matter requiring discussion is respondent's claim that the Board violated the union contract by failing to give her formal notice of its action of May 11, 1988. The pertinent provision in the contract is found in article XXIV, paragraph M on page 75. It provides that:

       M. Any recommendation to suspend or dismiss a continuing contract employee during the school year shall comply with Florida Statutes 231.36(4)(c) including notification to the employee which shall contain the specific charges, the written recommendation to the School Board and information to the employee regarding the employee's right of appeal pursuant to Florida Statute 120.68.

       
       

       Respondent suggests that a failure by the Board to strictly follow the above procedures constitutes "fundamental error" and invalidates the substantive charges leveled against her.

       
       

   20. To begin with, it is noteworthy that this proceeding arises under section 120.57 and not as a labor dispute. Accordingly, insofar as this action is concerned, the Board need only comply with those procedural requirements codified in chapter 120. Whether all provisions of the union contract were adhered to is irrelevant to the vitality of the charges being considered herein because disputes under the union contract must be resolved in another forum. A discussion as to whether the Board followed all procedural requirements under chapter 120 will follow.

       
       

   21. Paragraph M does nothing more than recite the well-established principle that, whenever disciplinary action against an employee is contemplated, the agency must offer its employees a clear point of entry into the administrative process to challenge that action. This principle is well ingrained in administrative law. See, e.g., Henry v. State, Department of Administration, Division of Retirement, 431 So2d 677 (Fla. 1st DCA 1983). At a minimum, the point of entry must be in writing and advise the affected person of his right to request a hearing and the time-frame for doing so. Id. at 680. A written notice is required even if the employee has actual notice of the agency's action. Sims v. The Board of Trustees of North Florida Junior College,

       444 So2d 1115 (Fla. 1st DCA 1984). In this case, a point of entry was never formally offered to respondent. Although the Board issued a written description of the charges some three and one-half months after it voted to dismiss respondent, it did not inform respondent of her right to request a hearing and the time limits for doing so. 2/ However, respondent became aware of the unformalized Board action taken on May 11 and requested a formal hearing on June 24, 1988. The notice of specific charges was then prepared and served on respondent well before the final hearing and gave her adequate time to prepare a defense. Under these circumstances, respondent cannot contend now the proceeding was so flawed as to require a dismissal of the charges. Indeed, once respondent requested a hearing, the lack of a formal point of entry became moot. Therefore, while an error in procedure did occur, it did not impair the fairness of the proceeding.

       
       

   22. Because respondent was "willfully absent from duty without leave," she has violated Section 231.44 as charged in the notice. Therefore, her employment should be "terminated."

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is Recommended that a Final Order be entered terminating respondent's

employment with the Board.

DONE AND ENTERED this 30th day of December, 1988, at Tallahassee, Florida.

DONALD R. ALEXANDER, 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 30th day of December, 1988.

ENDNOTES

1/ Efforts by the Board to inject other issues into the case were denied. These included such matters as teacher performance, absences in prior years and the validity of the worker's compensation claim, all of which are irrelevant to the allegations in the notice.

2/ In most cases, the proposed agency action retains the status quo until after the hearing has been conducted and a final order entered. However, a school board has authority under chapter 231 to suspend or dismiss a teacher effective on the date of the board's proposed action. This underscores the need for a school board to promptly offer an employee a point of entry into the administrative process.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3316

Petitioner:

1. Covered in finding of fact 1.

2. Covered in finding of fact 3.

3. Covered in findings of fact 3 and 4.

4. Covered in finding of fact 5.

5. Covered in finding of fact 7.

6. Covered in findings of fact 7 and 9.

7. Covered in finding of fact 10.

8. Covered in finding of fact 7.

9-10. Covered in finding of fact 12.

1. Covered in finding of fact 13.

2. Covered in finding of fact 14.

3. Covered in findings of fact 12 and 15.

Respondent:

1. Covered in finding of fact 1.

2-6. Covered in finding of fact 2.

1. Rejected as unnecessary.

2. Covered in finding of fact 3.

3. Covered in finding of fact 7.

10-11. Covered in finding of fact 10.

1. Covered in finding of fact 11.

2. Covered in finding of fact 9.

3. Rejected as unnecessary.

15-16. Partially covered in finding of fact 12. The remainder is unnecessary.

1. Covered in finding of fact 13.

2. Covered in findings of fact 13-15.

3. Covered in finding of fact 2.

4. Covered in finding of fact 13.

5. Rejected as being contrary to the more credible and persuasive evidence.

22-25. Partially covered in finding of fact 17. The remainder is rejected as being irrelevant or unsupported by the evidence.

COPIES FURNISHED:

Jaime Claudio Bovell, Esquire Dr. Joseph A. Fernandez

370 Minorca Avenue Superintendent of Schools Coral Gables, Florida 33134 Dade County Public Schools

1450 Northeast Second Avenue Miami, Florida 33132

Lorraine C. Hoffman, Esquire 2929 Southeast Third Avenue

Suite One Madelyn P. Schere, Esquire

Miami, Florida 33129 1450 Northeast Second Avenue Suite 301

Miami, Florida 33132

Karen B. Wilde, Executive Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Docket for Case No: 88-003316

Orders for Case No: 88-003316