vs.
Respondent.
) Case No. 02-0336
A formal hearing was conducted in this case on April 5, 2002, in Ocala, Florida, before Suzanne F. Hood, Administrative Law Judge, with the Division of Administrative Hearings.
For Petitioner: William C. Haldin, Jr. Esquire
William C. Haldin, Jr., P.A. 808 Southeast Fort King Street Ocala, Florida 34471
Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
The issue is whether Petitioner should terminate Respondent's employment because she excessively used the internet for personal matters unrelated to her work while she was on duty at her assigned computer terminal.
On January 8, 2002, Petitioner Marion County School Board (Petitioner) entered an Order of Suspension Without Pay against Respondent Pam Lemeiux (Respondent). Petitioner entered an Acceptance of Request for Hearing on January 23, 2002, and referred the case to the Division of Administrative Hearings on January 24, 2002.
A Notice of Hearing dated February 12, 2002, scheduled the case for hearing on April 5, 2002.
During the hearing, Petitioner presented the testimony of three witnesses and offered the following exhibits, which were accepted into evidence: P1, P2a, P2b, P3, P7, P7a, P7b, P10, P11, and P12.
Respondent testified on her own behalf and presented the testimony of three additional witnesses. Respondent offered Exhibits R1, R2, and R3, which were accepted into evidence.
A Transcript of the proceeding was filed on April 30, 2002.
2002.
Petitioner is the governing board of the Marion County School District.
At all times material to this proceeding, Petitioner had a written internet usage policy for its employees. The policy states as follows in pertinent part:
District computers, network access, and other information resources such as electronic mail (e-mail) are provided for staff use to support the District mission and goals. All such resources are District property, and subject to the same rules for use as other physical property. In addition, the following rules shall apply:
Use of information resources shall be limited to legitimate educational purposes. Programs for personal, commercial, or illegal purposes, including games, are not authorized.
E-mail, World Wide Web pages, and other forms of electronic documentation:
Will not be obscene, abusive, or contain other inappropriate material.
Will require the same handling as other public records.
User accounts and passwords must not be shared except where authorized. The person in whose name an account is issued in responsible for its proper use at all times.
Copyright and license agreements will be respected; no unauthorized copies of programs or files will be made.
Users shall not take unauthorized actions which gain access or attempt to gain access to, deny access or attempt to deny access to, disrupt, change, or destroy the data or service of the computer or network systems.
However, the written policy was not disseminated or discussed with Respondent or any other employees. Instead,
Petitioner's employees generally understood that they could use the internet for personal reasons during their two 15-minute breaks and their one-hour lunch break for a total of one and a half hours a day.
Respondent worked for Petitioner for 12 years. She began working as a data entry clerk in the Applied Technology Department. In time, Respondent was promoted to the position of a computer lab technician in the same department.
Respondent's job involved gathering data on students in Petitioner's middle and high school vocational programs and electronically transmitting the information to the Florida Department of Education (DOE). Her primary job required her to code and edit the information, correcting any problems identified by DOE so that Petitioner could receive the appropriate funding for its vocational programs.
Respondent required more time to complete her primary duties at certain times of the year depending on DOE reporting requirements. At other times of the year, Respondent was able to complete her work with time to spare.
Kathy Clarke worked with Respondent in the Applied Technology Department. Respondent showed Ms. Clarke and other people in the department how to protect the privacy of the department's computers by using a screen-saver password.
Ms. Clarke chose "kiss" as the screen-saver password. Several
employees, including Respondent, used the same screen-saver password so that, if necessary, they could access each other's computers.
In June 1999, Petitioner furnished Respondent with a new Mackintosh desk-top computer that was delivered without the appropriate internal zip drive. Respondent immediately installed a software password protection program on her computer.
When Petitioner received the zip drive for Respondent's computer, Petitioner arranged for outside computer technicians to install it. Respondent was not in the office when the outside computer technicians arrived. The outside computer technicians and Kathy Clarke waited 45 minutes for Respondent to return to the office because they did not know the software password to access Respondent's computer. When Respondent returned to her office, she installed the zip drive herself.
At or near the end of 1999, Petitioner transferred Respondent from the Applied Technology Department to the Management Information Services (MIS) Department. The transfer from one department to another required the physical relocation of Respondent's desk and computer, but her duties in relation to transmitting information to DOE for the vocational programs remained the same.
Anthony Burke became Respondent's supervisor in the MIS Department. He assigned Respondent additional duties on an as needed basis. These duties included answering the phone, passing out maps, mailing out notices, scanning records, greeting walk-in clients, and generally helping her co-workers when they got behind in their work. On some occasions, Respondent willingly accepted these assignments; on other occasions, she acted as if she resented doing any work except her primary responsibility of transmitting vocational educational data. In the latter event, Respondent would tell her supervisor that she was too busy to perform other duties.
When Respondent set up her workstation in the MIS Department, she located her computer monitor with the screen facing a storage area. The position of the monitor made it difficult for others in the office to casually observe the monitor's screen.
In April or May 2001, Mr. Burke decided to reconfigure the workstations within the MIS Department so that employees with highly specialized work would not be located in the flow of walk-in traffic. The reconfiguration of the workstations resulted in Respondent being moved to the front of the office and next to Tanya Eason. Respondent objected to being placed next to Ms. Eason with whom Respondent had a personality conflict.
Respondent informed Mr. Burke about her displeasure over the move to the front of the office. She claimed that being in the new location with an obligation to back up
Ms. Eason, the "office secretary and greeter," would interfere with Respondent's duties related to vocational programs.
Mr. Burke responded that he intended to proceed with the reconfiguration plan as soon as possible.
Respondent had a personal relationship with Jim Warford, Superintendent of Marion County School District, because he had taught Respondent's daughter. Based on that relationship, Respondent had a conversation with Superintendent Warford about her concerns with the changes in the MIS Department.
Subsequently, Mr. Burke became aware that Respondent had spoken to Superintendent Warford about problems in the MIS Department. After discussing his concerns with Respondent and for at least a couple of months, Mr. Burke did not acknowledge or speak to Respondent except in the context of a departmental meeting.
After the reconfiguration of the workstations in the MIS Department, Mr. Burke observed that Respondent was generally busy at her computer terminal. However, Respondent's workstation was once again set up so that one could not observe
her monitor's screen without entering her work station and standing behind or adjacent to her.
In October 2001, Mr. Burke and Christopher Mendola, Director of Information and Technology Services, discovered information that led them to question whether Respondent had breached Mr. Burke's e-mail security. After the close of business on October 16, 2001, Mr. Burke and Mr. Mendola took Respondent's computer off of her desk. When Respondent returned to work on October 17, 2001, she had no idea why her computer was missing.
At approximately 4:00 p.m., on October 17, 2001, Respondent attended a meeting with Mr. Mendola, Mr. Burke, and Jim Noell, Petitioner's personnel director. At that time, Respondent was informed that her computer was taken because she had been seen trying to access Mr. Burke's e-mail in a web design class.
Respondent denied that she had breached anyone's
e-mail security. She explained that during a web-design class, her e-mail had been so easy to access through Outlook Express that she used Mr. Burke's name to see if other e-mail addresses were as easily accessible.
During the October 17, 2001, meeting, Mr. Mendola asked Respondent whether she ever used the internet for personal reasons because it was inappropriate to do so on "company time."
Respondent replied emphatically that she did not use the internet for personal reasons.
Mr. Mendola was in possession of Respondent's computer for approximately one month. During that time, Respondent was assigned alternative duties. Because she did not have an office computer with internet capabilities, Respondent could not perform her duties related to the vocational program.
Mr. Mendola had Respondent's computer placed in a secure location in his office. Mr. Mendola could start the computer but could not access the computer's contents due to a password protection program. Respondent would not provide Mr. Mendola with the password but she agreed to disable the password protection program.
Mr. Mendola did not find evidence that Respondent had made any effort to access Mr. Burke's e-mail from her office computer. He did find evidence that a large number of internet websites, unrelated to work, had been extensively accessed on Respondent's computer. Among the information stored on Respondent's hard drive were "favorite" or "book-marked" sites organized into categories.
Mr. Mendola began looking through the caché, a temporary storage area, in Respondent's computer. In the caché, he found pictures and documents, indicating that Respondent's computer had accessed at least 33 internet sites. The caché
contained hundreds of photographs of people from internet-dating sites. The dating sites included "Welcome to Dating.com," and "www.Homecams.com." Access to the "www.Homecams.com" site was blocked by filter that Petitioner uses to prevent retrieval of inappropriate internet sites.
Subsequently, a second password protection program appeared on Respondent's computer, preventing Mr. Mendola from accessing other areas of Respondent's hard drive. Respondent had to disable the second password protection program before Mr. Mendola could proceed with his investigation.
Mr. Mendola's continued investigation revealed one internet site that was related to Respondent's work. The name of that site was "Work Force Development."
Next, Mr. Mendola performed a hard drive recovery. He recovered thousands of internet files unrelated to Respondent's work. Some files could not be recovered because they had been written over.
Mr. Mendola began looking for files that were recoverable and so large in size as to be significant. He found that approximately 25 percent of Respondent's hard drive contained at least 10,000 such files. Many of these files were bookmarked so they could be easily accessed at a later date. The files came from internet sites related to travel, perfumes, and other commercial sites, together with one education site.
The files on Respondent's hard drive also included a lot of "see-me cam sites" where people had cameras set up, projecting pictures from their living rooms or bedrooms every five to ten minutes, or cameras to view cars crossing a bridge. Some of the "see-me cam sites" that were listed in Respondent's history list could not be retrieved from Mr. Mendola's office because of the filter that Petitioner uses to block inappropriate or pornographic internet sites.
During the hearing, Respondent suggested that telephone repairmen who were working in the vicinity of her office might have accessed her computer after hours. She asserted that she installed a password protection program on her computer at that time. This would account for Respondent's having two such password protection programs on her computer. However, there is no credible evidence that any access by the repairmen would have resulted in the list of "bookmarks" and "favorites" found in Respondent's hard drive. Additionally, there was no credible evidence that the repairmen had access to her computer during the dates and times that print-outs of her internet usage show the activity to have occurred. To the contrary, Respondent had placed a password protection program on her computer as early as June 1999 such that Kathy Clarke and the outside computer technicians could not access Respondent's computer.
At some point in the middle of November 2001, Mr. Mendola returned Respondent's computer to her desk.
Mr. Mendola did not tell Respondent what he had discovered on her computer. Respondent was not aware that Mr. Mendola had installed a real-time monitor on the computer.
During the time that Respondent's computer was being monitored, Petitioner's staff made daily reports regarding Respondent's internet usage. They found that her internet activity involved sites that were unrelated to work.
A week or so later, Mr. Mendola informed Respondent that he was going to check her computer again. He asked her not to shut it off and to make sure that she disabled the password protection.
Mr. Mendola's second check of Respondent's computer confirmed that Respondent was using her computer to access the internet for purposes unrelated to her work. For example, there were many files related to furniture shopping. Mr. Mendola also discovered that the hard drive had been changed so that some files previously stored on the computer were no longer located there. Respondent's hard drive had been erased and started over.
On or about December 17, 2001, Mr. Mendola and Mr. Noell had a meeting with Respondent. At that meeting, Respondent was shown printouts showing her internet usage.
Respondent was then suspended until the January 8, 2002, school board meeting at which time it was recommended that Respondent be terminated.
The real-time monitoring of Respondent's computer revealed that she used the internet extensively for personal reasons during working hours. Her internet usage at these times was more than the time available in a normal work day during two 15-minute breaks and a one-hour lunch break.
It may be that Respondent's computer remained connected to the internet while she performed her primary or secondary duties off-line. In that case, the internet site might have automatically sent additional unsolicited messages and files that were stored in Respondent's hard drive. At times, Respondent might have used the internet beyond the time allotted for breaks and lunch when she completed her job assignments. However, Respondent admitted during the hearing that she used the internet as much as four hours a day, or perhaps as much as all day, during the time that she was "looking for furniture."
Petitioner has always been satisfied with Respondent's job performance. With the exception of one performance evaluation in May 2001, Respondent has received the highest evaluation possible from her supervisors. In May 2001, Respondent received a "satisfactory" performance rating in
teamwork skills and an "excellent" performance rating in all other areas.
There is no evidence that Respondent's internet usage ever interfered with the performance of her primary duties relating to the transmission of vocational school program data to DOE. However, Respondent knew or should have known that
Mr. Burke would have assigned her additional duties for the good of the department if he had known she was using so much of her time for personal activities after completing her assigned work. In fact, Mr. Burke testified that he would have told her to "knock it off" because such extensive internet usage was equivalent to reading a novel, watching television, or making personal telephone calls for several hours a day.
Section 5.02 of the Collective Bargaining Agreement between Petitioner and the Marion Essential Support Personnel states that "[n]o bargaining unit member shall be disciplined without just cause." The agreement also contains a procedure know as "NEAT." This procedure, which is set forth in Section
5.03 of the Collective Bargaining Agreement, states as follows in pertinent part:
Section 5.03 Except in emergency situations and situations which threaten the health and safety of students or other employees, the NEAT procedure will be used when disciplining members of the bargaining unit or when a deficiency is defined. The NEAT Procedure is defined as follows:
N - Notice - when a deficiency is defined, the building administrator will provide the employee with written notification of the deficiency.
E - Explanation and Expectation - the building administrator will include in the written notification the nature of the deficiency and the performance level expected.
A - Assistance - the building administrator will include in the written notification where information can be obtained to help the employee improve and/or will provide other forms of assistance as appropriate.
T - Time - the building administrator will define for the employee an appropriate time frame for improvement to occur before any disciplinary action is taken.
Petitioner did not use the NEAT procedure before suspending Respondent's employment. Mr. Mendola admitted during the hearing that Respondent's internet usage did not involve an emergency situation or threaten the health and safety of students or other employees. He also admitted that under the Collective Bargaining Agreement, he did not have discretion to ignore the NEAT procedure when disciplining an employee.
Mr. Mendola was aware of the NEAT procedure; he had used it with other employees. In this case he did not implement the procedure because of Respondent's denials that she had ever used the internet for personal reasons. According to
Mr. Mendola, Respondent's lack of truthfulness precluded the benefit of any assistance he could have provided Respondent in correcting her behavior pursuant to the NEAT procedure.
Article 4.00 of the Collective Bargaining Agreement sets forth a four-step grievance procedure, the last of which is binding arbitration. Section 4.10 of the Collective Bargaining Agreement states as follows in pertinent part:
Section 4.10 For the purposes of this Article, the term "grievance" means any dispute between the Employer and one or more employees involving the interpretation or application of the current Collective Bargaining Agreement. The following matters shall not be the basis of any grievance filed and/or processed under the Grievance Procedures of this Agreement.
* * *
3. Any complaint respecting termination of employment for which there is another remedial procedure or forum established by law or regulation having the force of
law . . . .
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
Pursuant to case law and the stipulation of the parties, Petitioner has the burden of proving by a preponderance of the evidence that Petitioner has "just cause" to terminate Respondent's employment. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Neither the statutes nor the Collective Bargaining Agreement defines "just cause."
Florida law establishes Petitioner's right to suspend or dismiss its non-instructional employees like Respondent. Sections 230.23(5)(f) and 231.3605, Florida Statutes. Section 231.3605(2)(c), Florida Statutes, states as follows:
(c) In the event a superintendent seeks termination of an employee, the school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by school board rule in the event there is no collective bargaining agreement.
Section 3.00 of the Collective Bargaining agreement provides as follows in pertinent part:
Section 3.10 It is expressly understood and agreed between the Union and the Employer that the right to direct employees of the Board, to hire, promote, transfer, assign and retain employees and to suspend, demote, discharge or take other disciplinary action against employees subject only to express provisions respecting such matters in the Agreement, shall be solely and exclusively within the responsibility of the Employer subject to provision of State Regulation, and the law of Florida and the United States.
Section 3.11 It is expressly understood and agreed between the Union and the Employer that the right to relieve employees from duty because of lack of work or for other legitimate reasons . . . shall be solely and exclusively within the responsibility of the Employer.
Petitioner contends that the rights created by way of the NEAT procedure in the Collective Bargaining Agreement or
those which might be implied in the term "just cause" as used therein, may only be enforced by the use of the grievance proceedings contained in the agreement and are not enforceable in a proceeding before the Division of Administrative Hearings. Petitioner cites Kantor v. School Board of Monroe County, 648 So. 2d 1266 (Fla. 3rd DCA 1995), and Sickon v. School Board of
Alachua County, 719 So. 2d 360 (Fla. 1st DCA 1998) for this proposition.
In Kantor, 648 So. 2d at 1267, the Court concluded that "[t]o the extent that appellant contends there was a violation of a provision of the collective bargaining agreement, appellant was obliged to resort to the grievance procedures specified therein." The Court in Kantor did not discuss the terms of Collective Bargaining Agreement at issue in that case.
In Sickon, 719 So. 2d at 363-365, the Court discussed in great detail the terms of the Collective Bargaining Agreement and upheld the school board's denial of a teacher's petition for an administrative hearing insofar as the petition alleged substantial interest predicated on rights conferred by the Collective Bargaining Agreement. The Court in Sickon, 719
So. 2d at 363-365, stated as follows in relevant part:
In Blanchette v. School Board of Leon County, 378 So. 2d 68, 69 (Fla. 1st DCA 1979), we enforced a provision in a collective bargaining agreement requiring arbitration of disputes "arising out of the
collective bargaining agreement." When parties through their bargaining representatives have contracted to arbitrate grievable disputes arising out of the collective bargaining agreement, grievable disputes must be resolved in that matter, if possible, rather than through APA procedures whose object is a final order expressing the decision of the employer-agency and determining a party's substantial interest. (citation omitted.)
Redress for violations of rights arising under the collective bargaining agreement must be pursued in the manner contemplated by the collective bargaining agreement. (citation omitted) The collective bargaining agreement in Blanchette made arbitration mandatory, while the collective bargaining agreement here does not in terms require resort to the grievance process. . . Nevertheless, when a collective bargaining agreement spells out detailed grievance and arbitration procedures, it implies that the parties intended that the procedures be used to enforce rights the agreement confers. In the absence of any contrary language in the collective bargaining agreement or countervailing public policy, we hold that the parties must pursue the procedures established by the collective bargaining agreement rather than turn to the Administrative Procedure Act, when only rights created by the collective bargaining agreement are at issue. (citations omitted.)
In the instant case, Section 4.10 of the Collective Bargaining Agreement spells out the details of grievance and arbitration procedures. Under Step 3 of the grievance procedure, an employee with a grievable dispute may request a review by Petitioner, which may in turn either affirm the Superintendent's recommendation or set a date for a hearing. If
Petitioner elects to conduct a hearing, at its conclusion, Petitioner may either affirm the Superintendent's recommendation or make other appropriate disposition of the grievance. Under Step 4 of the grievance procedure, an employee with a grievable dispute who is not satisfied with Petitioner's disposition of the grievance may notify Petitioner of his or her intention to submit the grievance to binding arbitration. The Collective Bargaining Agreement does not specifically provide for an administrative hearing under any circumstances.
Even so, Respondent's complaint respecting her termination is not a grievable dispute under the Collective Bargaining Agreement. Section 4.10 of the Collective Bargaining Agreement (quoted above in the Findings of Fact) specifically prohibits utilization of the grievance procedure where there is another forum having the force of law to hear the complaint respecting termination.
Petitioner's Acceptance of Request for Hearing dated January 23, 2002, clearly states that the request was granted pursuant to Section 120.569, Florida Statutes. By referring this case to the Division of Administrative Hearings to resolve de novo all issues related to Respondent's termination, Petitioner has voluntarily provided Respondent with another forum having the force of law other than following the grievance procedures including binding arbitration. Petitioner cannot
foreclose Respondent's right to raise her rights arising under the Collective Bargaining Agreement by electing to proceed in this manner.
Accordingly, the first question to be decided is whether Petitioner's failure to follow the NEAT procedure outlined in Section 5.03 of the Collective Bargaining Agreement prevents Petitioner from establishing "just cause" for terminating Respondent's employment. The answer is affirmative because Petitioner had no discretion under the Collective Bargaining Agreement to do otherwise.
In reaching this decision, one must consider the following: (a) Respondent configured her workstation so that, intentionally or inadvertently, her supervisor could not see whether she was performing work-related tasks or personal business on her computer; (b) Respondent falsely denied that she used the internet for personal reasons; (c) Respondent objected to locating her workstation near the front of the office because she claimed to be too busy with her primary duties to perform alternative duties; and (d) Respondent used the computer extensively for personal reasons when she should have been working on her primary duties or advising her employer that she was available to perform other tasks. None of these factors provide Petitioner with an excuse for not following the NEAT procedure. If Petitioner had confronted Respondent with the
results of Mr. Mendola's investigation after he checked her computer the first time and if he had implemented the NEAT procedure, Respondent may have taken advantage of the opportunity to redeem herself as contemplated under the Collective Bargaining Agreement.
On the other hand, one also must consider the following: (a) Respondent never advised Respondent or other employees about the written policy concerning internet usage;
(b) Respondent and other employees were under the impression that they could use the internet for personal reasons during breaks and lunch; (c) Respondent's primary duties never suffered as a result of her internet usage; (d) Respondent is accused of excessive internet usage not abuse of that privilege by accessing inappropriate web sites; and (d) Respondent is a
long-term employee of Petitioner with outstanding evaluations. All of these factors demonstrate the importance of complying with the requirement of the Collective Bargaining Agreement to apply the NEAT procedure. At the least, these factors should have mitigated any discipline.
Accordingly, Petitioner has failed to establish "just cause" to terminate Respondent's employment. Petitioner should be reinstated with back pay and benefits subject to an appropriate professional development plan to ensure Respondent's future compliance with Petitioner's internet usage policy.
That Petitioner enter a final order reinstating Respondent's employment with back pay and benefits.
DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2002.
William C. Haldin, Jr., Esquire William C. Haldin, Jr., P.A.
Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
Beverly Morris, Esquire Marion County School Board 808 Southeast Fort King Street Ocala, Florida 34471
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.
