STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD,

Petitioner,

vs.

DAVID TILLMON,

Respondent.

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) Case No. 02-3775

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 11, 2003, in Sanford, Florida, before T. Kent Wetherell, II, the designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sandra J. Pomerantz, Esquire

Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Respondent: No appearance1

STATEMENT OF THE ISSUE

The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment as a grounds custodian based upon his absence from work without approved leave.

PRELIMINARY STATEMENT

By letter dated September 5, 2002, the Superintendent of the Seminole County School Board (School Board or Petitioner) informed Respondent that he was recommending the termination of Respondent's employment as a grounds custodian at Lake Mary High School. By letter dated September 24, 2002, Respondent timely requested an administrative hearing regarding that recommendation.

Thereafter, on September 26, 2002, the School Board filed a Petition for Termination (Petition) with the Division of Administrative Hearings (Division). The Petition requested that the Division assign an administrative law judge to conduct the hearing requested by Respondent.

The hearing was initially scheduled for November 20, 2002, but was twice continued at the request of the parties. The hearing was ultimately held on March 11, 2003.

At the hearing, the School Board presented the testimony of Scott Underwood, the assistant principal at Lake Mary High School and Respondent's direct supervisor; Boyd Karns, Jr., the principal at Lake Mary High School; and John Reichert, the human resources director for the School Board. The School Board's Exhibits 1 through 12 were received into evidence. Respondent did not appear at the hearing and therefore did not present any witnesses or exhibits.

The one-volume Transcript of the hearing was filed with the Division on April 1, 2003. The parties were given 10 days from the date the Transcript was filed with the Division to file their proposed recommended orders (PROs). See Rule 28-106.216, Florida Administrative Code. Respondent did not file a PRO. The School Board's PRO was filed on April 9, 2003, and was given due consideration by the undersigned in preparing this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, the following findings are made:

1. Petitioner is the governing body of the local school district in and for Seminole County, Florida. Lake Mary High School is a school within Petitioner's district.

2. The School Board employs custodial staff to maintain the facilities and grounds of the schools within the district.

3. Respondent was first employed by the School Board as a custodian in 1999 or 2000. Most recently, Respondent was "reappointed" for the 2002-03 school year under a 12-month contract.

4. Respondent's employment with the School Board is governed by the Official Agreement Between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc. (NIPSCO) and the School Board of Seminole

   County, most recently amended on August 6, 2002 [hereafter "NIPSCO Agreement"].

5. Among other things, the NIPSCO Agreement specifies the types of leave available to employees such as Respondent as well as the consequences for being absent from work without approved leave.

6. Respondent was the custodian or groundskeeper responsible for maintaining the exterior grounds of Lake Mary High School, including the parking lots and the athletic fields.

7. Respondent's immediate supervisor was Scott Underwood, the Assistant Principal at Lake Mary High School.

   Mr. Underwood's supervisor was Boyd Karns, Jr., the principal at Lake Mary High School. As the principal, Mr. Karns is ultimately responsible for the supervision of the personnel at Lake Mary High School.

8. On or about August 1, 2002, Respondent requested vacation/annual leave for the period of August 19 through 30, 2002. The request was made to Mr. Underwood.

9. Mr. Underwood initially discouraged Respondent from taking vacation on those dates because they were close to the start of the school year and the school grounds needed to look good for upcoming events such as the "open house" which marked the beginning of the school year. The athletic fields also needed to be prepared for upcoming sports events. As the

   school's groundskeeper, Respondent was primarily responsible for the condition of the school's exterior grounds.

10. Respondent insisted on taking vacation on those dates and, despite his initial reservations, Mr. Underwood ultimately recommended approval of Respondent's request for vacation leave. Mr. Karns approved that recommendation.

11. On or about August 22, 2002, while he was on vacation leave, Respondent submitted a written request for additional leave for the period of September 3 through September 19, 2002. He requested personal leave without pay for that period.

12. The reason given by Respondent for his request for additional leave was that he wanted to help his sister open her business which was located in another state, although that may not have been the "real" reason for the request.

13. If that additional leave had been granted, it would have resulted in Respondent being on leave for a period of five weeks -- August 19 through September 19, 2002 -- and the school being without its groundskeeper for that same period. That absence would have created a hardship for the school because Respondent was primarily responsible for the condition of the school grounds and that period coincided with the beginning of the school year when it was especially important that the school grounds look good.

14. On August 23, 2002, Mr. Underwood spoke to Respondent by telephone about his request for additional leave.

    Mr. Underwood told Respondent that he was recommending that the request be denied for the reasons noted in the preceding paragraph. Mr. Karns concurred in that recommendation and Respondent's request for the personal leave without pay was denied.

15. During the August 23, 2002, telephone conversation, Mr. Underwood expressly told Respondent that he was expected to return to work on Tuesday, September 3, 2002, since his approved vacation leave ended on Friday, August 30, 2002, and Monday, September 2, 2002, was Labor Day.

16. Respondent did not appear for work on September 3, 2002, or any point thereafter. He did not contact Mr. Underwood or Mr. Karns on September 3, 2002, or at any point thereafter regarding his absence.

17. Based upon Respondent's absence from work on September 3, 2002, without authorization and in violation of Mr. Underwood's direction to him on August 23, 2002, Mr. Karns recommended to the Superintendent of the School Board that Respondent's employment be terminated.

18. By letter dated September 5, 2002, the Superintendent informed Respondent that he was recommending that the School Board immediately suspend Respondent without pay and that the

    School Board thereafter terminate Respondent's employment. The letter informed Respondent of his right to appear at the School Board meeting where the suspension recommendation would be considered as well as his right to request an administrative hearing on the recommended termination.

19. The School Board considered the matter at its meeting on September 10, 2002. The School Board accepted the Superintendent's recommendation and suspended Respondent without pay effective September 11, 2002. The record does not reflect whether Respondent appeared at the School Board meeting to contest the suspension.

20. On September 25, 2002, Respondent timely requested an administrative hearing "with regard to the recommendation for termination of [his] employment." As a result of that hearing request, Respondent's employment status remained (and still is) suspended without pay.

21. The record does not include any evidence of prior disciplinary action taken against Respondent by the School Board.

22. Respondent was provided due notice of the time, date, and location of the final hearing in this case, but he failed to appear at the hearing.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002), Section 231.3605(2)(c), Florida Statutes (2001),2 and Article VII, Section 5.E. of the NIPSCO Agreement.

24. The School Board has the burden to establish by a preponderance of the evidence the grounds for terminating Respondent's employment. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter

    County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990). Accord Seminole County School

    Board v. Redding, DOAH Case No. 02-3103, Recommended Order at 7-8 (Oct. 10, 2002) (involving a termination proceeding against a laborer in the School Board's grounds maintenance department).

25. Section 231.3605(2)(b), Florida Statutes (2001),3 provides that educational support employees such as Respondent may be terminated only "for reasons stated in the collective bargaining agreement."

26. The collective bargaining agreement which governs Respondent's employment with the School Board includes the following provisions which are pertinent here:

    ARTICLE VII EMPLOYMENT CONDITIONS

    
    

    * * * DISCIPLINE AND TERMINATION

    Section 5

    
    

    * * *

    
    

    C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present:

    
    

    1. Violation of School Board Policy

    
    

    * * *

    
    

    1. Insubordination -- Refusal to follow a proper directive, order, or assignment from a supervisor.

       
       

       * * * Section 11. Absence Without Leave

       1. Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence.

          
          

       2. Absence without leave is a breach of contract and may be grounds for immediate dismissal.

    
    

    * * *

    Section 15.

    
    

    Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures.

    
    

    1st Offense - Written reprimand and one day suspension without pay

    
    

    2nd Offense - Five day suspension without pay

    
    

    3rd Offense - Recommendation for termination.

    
    

    
    

    Section 1.

    ARTICLE VIII EMPLOYEE RIGHTS

    
    

    Employees may be immediately disciplined including termination for serious violations of the following: misconduct; incompetency; gross insubordination; willful neglect of duty; or conviction of a felonious crime.

    * * * ARTICLE XI

    LEAVES AND TEMPORARY DUTY

    
    

    Section 3. Personal Leaves

    
    

    A. Personal leave, without pay, short term or extended, may be granted [to] an employee. A valid reason must be given to justify personal leave

    
    

    * * *

    Section 9. General Provisions Governing Leaves

    
    

    A. Application for personal, maternity, military, vacation, extended leave and assignment for temporary duty must be made in writing and presented for approval ten

    (10) days prior to the date the leave is requested. . . . .

    
    

    * * *

    
    

    J. Specific leave may be refused if the employee's absence would cause undue hardship or interruption of vital school service.

    
    

    * * *

    
    

    See NIPSCO Agreement, at pages 33, 42, 45, 54, and 65-66.

    
    

27. The School Board met its burden to demonstrate that Respondent was absent without approved leave beginning on September 3, 2002.

28. Respondent's absence without approved leave is a violation of School Board policy and the NIPSCO Agreement and provides just cause for the termination of Respondent's employment. See NIPSCO Agreement, at Article VII, Section 11.B; In re Grievance of Ronnie Lewis, Case No. FMCS Case No. 96-06094 (June 4, 1996) (denying custodian's grievance against School Board because School Board had just cause to discharge custodian whose incarceration caused him to be absent from work without leave for an extended period).4 See also Section 231.44, Florida Statutes (2001)5 (providing that any school board employee who is

    willfully absent without leave shall be subject to immediate termination).

29. Termination of Respondent's employment is appropriate under the circumstances of this case because Respondent was expressly told by his direct supervisor, Mr. Underwood, that his request for leave was denied and that he was expected to appear for work on September 3, 2002. Respondent's subsequent failure to appear for work as directed (or at any point after that date) is insubordination or a willful neglect of duties, which are independent bases for immediate termination. See NIPSCO Agreement, at Article VII, Section 5.C.3. and Article VIII, Section 1.

30. These additional considerations distinguish this case from the Recommended Order in Seminole County School Board v.

Mack, DOAH Case No. 02-2309 (Apr. 10, 2003), in which the administrative law judge concluded that notwithstanding the "immediate dismissal" language in Article VII, Section 11 of the NIPSCO Agreement, the School Board was required to follow the "progressive discipline" procedures in Article VII, Section 15 of the NIPSCO Agreement before dismissing an employee for being absent without approved leave.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Seminole County School Board issue a final order terminating Respondent's employment.

DONE AND ENTERED this 17th day of April, 2003, in Tallahassee, Leon County, Florida.

T. KENT WETHERELL, II Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2003.

ENDNOTES

1/ Respondent was represented by Thomas L. Johnson, Esquire, during a portion of this proceeding. Mr. Johnson was permitted to withdraw as counsel for Respondent by Order dated

February 28, 2003. That Order required Mr. Johnson to provide a duplicate copy of the Order granting his motion to withdraw along with a copy of the Order scheduling the hearing for

March 11, 2003, directly to Respondent. Mr. Johnson filed a certificate showing his compliance with that Order on March 3, 2003.

2/ This provision was moved to Section 1012.40(2)(c), Florida Statutes, as part of the substantial reorganization of the Education Code in Chapter 2002-387, Laws of Florida. That act

did not become effective until January 1, 2003, so the 2001 version of the statutes govern this proceeding.

3/ This provision is now codified as Section 1012.40(2)(b), Florida Statutes.

4/ The Lewis arbitration decision was received into evidence as Exhibit 9.

5/ This provision is now codified as Section 1012.67, Florida Statutes.

COPIES FURNISHED:

Sandra J. Pomerantz, Esquire Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

David Tillmon

2615 Hartwell Avenue

Sanford, Florida 32773

David Tillmon 2828 Grove Drive

Sanford, Florida 32773

Dr. Paul J. Hagerty, Superintendent Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street 1244 Turlington Building

Tallahassee, Florida 32399-0400

Honorable Jim Horne, Commissioner of Education Department of Education

325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 02-003775

Orders for Case No: 02-003775