STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

CLAUDIA JONES, )

)

Respondent. )

Case No. 04-0818

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 20 and 21, 2004, in West Palm Beach, Florida, before Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jean Marie Nelson, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33416-9239

For Respondent: Matthew Haynes, Esquire

Chamblee, Johnson & Haynes, P.A. The Barrister’s Building, Suite 500 1615 Forum Place

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent’s employment should be suspended and terminated for the reasons set forth in the Amended Petition for Involuntary Resignation.

PRELIMINARY STATEMENT

At the final hearing the parties offered five Joint Exhibits, all of which were admitted in evidence. Petitioner offered Petitioner’s Exhibits 1 through 10, all of which were admitted in evidence. Petitioner also presented the testimony of the following witnesses: Claudia Jones, Nancy Patrick, John

1. Stevens, and Melinda Wong.

   
   

   Respondent offered Respondent’s Exhibits 1 through 4, all of which were admitted in evidence. Respondent also testified further on her own behalf and also presented the testimony of Joe Matulaitis.

   The transcript of the hearing was filed with the Division of Administrative Hearings on January 25, 2005. The parties’ proposed recommended orders were due by February 15, 2005, but the parties sought and received an extension of time until March 1, 2005. Both parties filed their Proposed Recommended Orders by the extended deadline. The proposals of the parties have been carefully considered during the preparation of this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent began her employment with Petitioner as a substitute teacher in November of 1997, and was later hired as a regular teacher in January of 2000.

   2. Respondent held a temporary teaching certificate which expired after the time period at issue in this case.

   3. Respondent was first assigned to teach at Santaluces High School and was later assigned to Bear Lakes Middle School, where she taught geography.

   4. On April 12, 2002, Respondent was injured in the line of duty while attempting to assist another teacher control unruly students. In that incident Respondent fell and injured both her back and her knee. Respondent was authorized by Petitioner’s workers’ compensation administrators to treat with both Dr. Wexler and Dr. Lichtblau for her injuries.1

   5. Following the accident on April 12, 2002, Respondent continued to work at Bear Lakes Middle School until on or about November 11, 2002, when she was placed on a light duty assignment at another location. Respondent had been placed on light duty by Dr. Wexler because he felt it was medically necessary. Thereafter, Respondent was given several light-duty assignments to accommodate her physician-imposed work restrictions, including assignments to Conniston Middle School, Risk Management, JFK Middle School, Gold Coast Community, and the District’s substitute office. Respondent was placed on light-duty assignments by the Palm Beach County School Board (School Board) for a total of more than ten months.

   6. The light-duty assignments provided by the School Board are temporary assignments that are made available in lieu of workers’ compensation payments to employees who are able to perform light duty. They are not offered for an indefinite period of time, nor are they offered as a permanent employment option.

   7. Following some confused communications about Respondent’s certification status and some further confused communications as to whether Respondent had reached maximum medical improvement and could return to a seven-and-a-half hour per day classroom teacher position, Respondent was offered a job teaching full-time (seven-and-a-half hours per day) at Jeaga Middle School. Respondent was supposed to begin teaching at Jeaga Middle School in September of 2003.

   8. On September 10, 2003, Dr. Wexler, one of Respondent’s treating physicians wrote that he agreed with another physician’s assessment that Respondent had reached maximum medical improvement and could work eight hours per day with certain restrictions that could be accommodated in a classroom teaching setting. Later that month, Dr. Wexler explained that there had been some confusion on September 10, 2003, and that he was of the view that Respondent had not yet reached maximum medical improvement and that Respondent’s work hours should be restricted to four hours per day.

   9. Respondent declined the offer of the full-time teaching position at Jeaga Middle School and requested that the School Board offer further light-duty work assignments of no more than four hours per day. The School Board promptly informed Respondent that she would not be offered any further light-duty assignments and that if she was not going to accept the full- time position at Jeaga Middle School, she should apply for leave without pay in order to avoid being terminated by the School Board.

   10. At an earlier time following her April 12, 2002, injury, Respondent was on leave without pay for a period of time. During that period she received workers’ compensation benefits in lieu of wages or salary. During that period of time Respondent was dissatisfied with the workers’ compensation benefits she received. Because of that prior negative experience, Respondent did not want to again request leave without pay, which would require her to rely on workers’ compensation benefits until she reached maximum medical improvement.

   11. Respondent did not accept the full-time position at Jeaga Middle School and did not apply for leave without pay. Respondent did not apply for any other regular employment opportunities with the School Board. Respondent did continue to request assignment to a light-duty position for four hours per

       day. The School Board advised Respondent on several occasions that she would not be assigned to any further light-duty positions and that it would be in her own best interest to apply for leave without pay to avoid termination from the School Board.

   12. As a teacher employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Classroom Teachers Association (CTA) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School Board and the CTA (CTA Contract).

   13. The subject of unpaid leaves is addressed at page 55 of the CTA Contract, which includes the following language:

SECTION C - UNPAID LEAVES: GENERAL PROVISIONS

All absences of employees from duty shall be covered by leave applications which are duly authorized, a copy of which shall be provided employees upon request. Except for short-term leaves of absence, and intermittent political leave, unpaid leaves shall be timed such that the employee returns at the beginning of a new grading period. Except for extenuating circumstances, Sick Leave without Pay for Personal Illness or Illness/death of a Family Member, for more than ten (10) days, also shall be timed so that the employee returns at the beginning of a grading period.

An employee taking an approved unpaid leave shall retain the same contractual and salary credit status as he/she had upon taking such leave and shall be returned to the same

school, and within certification, to the same assignment he/she held prior to taking the leave, if said leave is for a duration of twelve (12) months or less. However, an employee while on an unpaid leave shall be subject to the Excessing Procedure and the Lay-Off/Call-Back Procedure of this Agreement the same as if they were not on leave. If these procedures become operative and affect the employee on leave, he/she may not be returned to the same position he/she held prior to taking leave. Likewise, employees while on an unpaid leave maintain their rights to apply for transfers and/or reassignments as provided by this Agreement.

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SECTION D - UNPAID LEAVES: SPECIFIC PROVISIONS

Short Term Leave of Absence - Any employee desiring short term leave of absence shall make written application for such leave to the Principal or immediate supervisor.

Except in emergency situation, such applications shall be approved in advance. Leave for emergencies may be deemed to be granted in advance, if prompt report is made to the proper authority. The first five (5) requested days of short term leave, whether covered by one (1) or more than one (1) request, will be approved. Requests for short term leave thereafter, regardless of length, will be granted or denied by the District in its discretion. Applications for more than five (5) working days will require that a reason be given and shall be subject to approval by the Superintendent.

Employees shall not be gainfully employed during normal working hours while on such leave.

Long Term Leave of Absence - A long term leave of absence is permission granted by the Board, at the District’s discretion, for an employee to be absent from his/her duties

for specified periods of time with the right of returning to duty on expiration of the leave. Leave shall be officially granted in advance by the District and shall be used for the purpose set forth in the leave application. Such long-term unpaid leave, when granted, will be for the remainder of the school year, unless otherwise approved with the initial leave request. In addition, up to one (1) additional year of leave shall be granted upon receipt of a written request from the employee, unless the employee has not been reappointed in keeping with other provisions of the Agreement for the next school year. Such extension of long-term leave shall be timed such that the employee returns at the beginning of a new grading period. Once an employee has exhausted the leave privileges under this subsection (Long-term Leaves), the employee shall be required to return to duty for a full year before being eligible for another long-term unpaid leave.

1. As a School Board employee, Respondent is subject to applicable School Board rules and regulations, including School Board Policy 3.80 and School Board Directive 3.27. School Board Policy 3.80 addresses unpaid leaves when an employee’s sickness has extended beyond all compensable leave.

2. School Board Directive 3.27 addresses the general topic of separation from employment. Under the caption “Suspension/Termination” the directive provides:

   3. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to:

   * * *

   
   

   b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes (now § 1012.67, Fla. Stat.).

   
   

   * * *

   
   

   e. Incompetent to perform regular work duties. Incompetency is defined as incapacity to perform due to lack of emotional stability or physical ability; or lack of adequate command of the designated area of work. Employees are also incompetent when they repeatedly fail to perform duties prescribed by law and by this district. [2]

3. Respondent was personally advised on numerous occasions that if she did not apply for a leave of absence, she would be absent without approved leave and would be subject to termination. Respondent was absent without authorization.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57, Fla. Stat.

5. In this case, by reason of language included at page

   
   

   16 of the CTA Contract, the School Board must prove the allegations in the charging document by clear and convincing evidence.

6. Section 1012.67, Florida Statutes, states: “Any district school board employee who is willfully absent from duty

without leave shall forfeit compensation from the time of such absence, and his or her employment shall be subject to termination by the district school board.” Respondent was “willfully absent from duty without leave” within the meaning of Section 1012.67, Florida Statutes, because she was specifically advised that she should request leave and she made a deliberate and willful decision not to request leave. Therefore, consistent with Section 1012.67, Florida Statutes, and with School Board Directive 3.27, it was appropriate for the School Board to terminate Respondent’s employment.3

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent’s employment.

DONE AND ENTERED this 20th day of April, 2005, in Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

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 20th day of April, 2005.

ENDNOTES

1/ The role of each of these two doctors is not entirely clear from the record in this case. It also appears that these two doctors at times did not communicate very effectively with each other.

2/ The portion of School Board Directive 3.27 that addresses incompetence was not addressed in the charging document and, therefore, is not at issue in this case. Nevertheless, attention is drawn to the language addressing incompetence because it might in some similar cases be an additional basis for termination of employment.

3/ Respondent’s primary defense to the School Board’s charges was that the School Board was obligated to continue to provide her with assignments to light duty until she reached maximum medical improvement or was released by her treating physician from the four-hour per day work restriction. The evidence in this case is insufficient to establish that Respondent was entitled to any more assignments to light duty than were provided to her. The evidence is clear that she refused to apply for leave without pay when advised that it would be in her best interest to do so.

COPIES FURNISHED:

Jean Marie Nelson, Esquire Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33416-9239

Matthew Haynes, Esquire Chamblee, Johnson & Haynes, P.A.

The Barrister’s Building, Suite 500 1615 Forum Place

West Palm Beach, Florida 33401

Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board

3340 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400

Honorable John Winn Commissioner of Education Department of Education

325 West Gaines Street, 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: 04-000818TTS

Orders for Case No: 04-000818TTS