STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOBBIE D'ALLESANDRO, )

Superintendent of Lee County ) Schools, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0458

)

LARRY MCADAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held on March 28, 1995. The attorneys, witnesses, and court reporter attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Daniel H. Kunkel

Kunkel Miller & Hament Southtrust Bank Plaza

1800 Second Street, Suite 785

Sarasota, Florida 34236

For Respondent: Robert J. Coleman

Coleman & Coleman

2300 McGregor Boulevard Ft. Myers, Florida 33902

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists for Petitioner to terminate Respondent from his job as a school bus operator.

PRELIMINARY STATEMENT

By Petition for Suspension Without Pay and Benefits Pending Termination of Employment signed January 10, 1995, Petitioner alleged that Respondent should be terminated from his position as a school bus operator due to his frequent absences from work and repeated failure to inform Petitioner timely of when he would be late to work or miss work entirely.

Respondent requested a formal hearing.

Respondent's counsel appeared for the final hearing, but Respondent did not. Respondent's counsel orally moved for a continuance. The request was denied. Petitioner's counsel orally moved for a default. The request was denied.

At the hearing, Petitioner called two witnesses and offered into evidence eight exhibits. Respondent called no witnesses and offered into evidence one exhibit. All exhibits were admitted.

Both parties waived the filing of proposed recommended orders. Neither party ordered a transcript.

FINDINGS OF FACT

1. Petitioner employed Respondent as a school bus operator since October 26, 1988. His performance was generally satisfactory, except that he sometimes failed to inform Petitioner when he was going to miss work or be late.

   
   

2. Respondent's performance assessment for the 1992-93 school year, which was dated March 8, 1993, states that Respondent was effective in all areas except "demonstrat[ing] an energetic and enthusiastic approach to work, avoid[ing] excessive or unnecessary use of sick/personal leave." In this area, he received an mark of "inconsistently practiced."

   
   

3. On November 30, 1993, Reta Uhrich (now Bingmer), who was Respondent's supervisor, issued a written reprimand to Respondent. The reprimand states that he was a "no show, no call" on the morning of November 30 for the second time. The first time was the morning of November 10. Respondent wrote on the reprimand: "was sick--no excuses should have called."

   
   

4. Respondent's performance assessment for the 1993-94 school year, which was dated March 9, 1994, reflects that Respondent was effective in all areas but the one noted the previous year and three others. He received "inconsistently practiced" under "report[ing] to work as expected, unless an absence has been authorized"; "report[ing] to work on time as determined by scheduled route schedules"; and "complet[ing] necessary reports accurately and submit[ting] them on time." Respondent wrote on this assessment: "Late to work is because of a bad tooth which is not repaired."

   
   

5. Ms. Bingmer issued a written reprimand to Respondent at the beginning of the 1994-95 school year. Dated August 26, 1994, the reprimand states that on August 25, 1994, Respondent was 35 minutes late; on August 24, 1994, Respondent called 20 minutes after he was due at his first stop to announce that he had overslept and would come to work for his second and third routes; on August 23, 1994, Respondent did not show up or call in the morning, showed up for the afternoon runs without first calling, and promised Ms. Bingmer that he would be on time in the future. The reprimand notes that Respondent claimed each time that he had a problem with a bleeding ulcer and could not afford medication. The reprimand warns that the next offense may result in a three- day suspension without pay.

   
   

6. Ms. Bingmer issued Respondent a written reprimand on October 4, 1994, due to Respondent's failure to report for work or telephone to report off work for the entire day of September 23, 1994, and the morning of September 30, 1994. The reprimand states that Respondent assured Ms. Bingmer that his medical and personal problems were under control and that he would be at work each day on time. The reprimand concludes by noting that Ms. Bingmer had recommended that

   Respondent be suspended without pay for three days, but her supervisor ordered only verbal and written reprimands. The reprimand warns that any further problems could result in a "much stronger result."

   
   

7. On October 25, 1994, Respondent, Ms. Bingmer, and others attended a predetermination conference. Respondent assured the representatives of Petitioner that he would improve his attendance.

   
   

8. However, on November 10, 1994, Respondent called at 6:10 am and said his car would not start. Although this was notice of his absence, the notice was late. On November 18, 1994, Respondent called and said he would be out due to a toothache. On November 29, he called again, saying he would not be in because his car would not start.

   
   

9. On December 2, 1994, Ms. Bingmer learned that the driver's license of Respondent had been suspended. She instructed him to go to the driver's license office immediately and resolve the problem, which involved his insurance.

   
   

10. Respondent went to the driver's license office the same day and resolved the problem. However, he did not contact anyone representing Petitioner on the following workday, nor did he show up for work. Late in the day, he left a note for Ms. Bingmer stating that he would call early the following day and see her. But he neither called nor reported to work the following day, nor the day after that.

    
    

11. The major problem created by Respondent was that he either gave no notice when he was going to miss or be late for work, or he gave inadequate notice. With notice, Petitioner could obtain a substitute bus driver. Without notice, children were left standing at their bus stops waiting needlessly for their bus.

    
    

12. The employment contract provides that Petitioner may terminate an employee for "just cause." Petitioner has demonstrated that just cause exists for the termination of Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

14. Petitioner has the authority to dismiss school employees under contract. Section 230.23(5)(f). Under the contract, "just cause" must exist for termination.

    
    

15. Petitioner has proved that just cause exists for terminating Respondent. His continuing failure to inform Petitioner of repeated absences unnecessarily disrupted the operation of the school system.

RECOMMENDATION

It is hereby

RECOMMENDED that the School Board of Lee County enter a final order terminating Respondent.

ENTERED on March 30, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on March 30, 1995.

COPIES FURNISHED:

Daniel H. Kunkel Kunkel Miller & Hament Southtrust Bank Plaza Suite 785

1800 Second Street

Sarasota, FL 34236

Robert J. Coleman Coleman & Coleman

P.O. Box 2089

Ft. Myers, FL 33902

Patrick E. Geraghty Patrick E. Geraghty, P.A.

P.O. Drawer 8

Ft. Myers, FL 33902-0280

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-000458

Orders for Case No: 95-000458