vs.
Respondent.
) Case No. 04-2757
Pursuant to notice, a formal hearing was held in this case on October 5 and 6, 2004, in Fort Myers, Florida, before Lawrence P. Stevenson, the designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: J. Paul Carland, II, Esquire
For Respondent: Robert J. Coleman, Esquire
The issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Carla Taylor's, employment as a
custodian, based upon the conduct alleged in the Petition for Termination of Employment.
On June 17, 2004, the Lee County School Board (the "School Board") filed a Petition for Termination of Employment (the "Petition") on Respondent, setting forth the allegations justifying the termination of Respondent's employment as a custodian. The Petition specifically charged that Respondent "was chronically absent and/or misused her leave during the 2003-2004 school year . . . in violation of Article 9 of the SPALC Agreement [the collective bargaining agreement between the Support Personnel Association of Lee County and the School Board]." On June 25, 2004, Respondent's counsel filed a letter contesting the charges and requesting a formal hearing. At a special meeting on July 29, 2004, the School Board voted to suspend Respondent without pay and benefits pending termination of her employment. On August 5, 2004, the School Board referred the matter to the Division of Administrative Hearings ("DOAH") for the assignment of an Administrative Law Judge and the conduct of a formal hearing.
This matter was scheduled for final hearing on October 5 and 6, 2004. At the hearing, the School Board presented the testimony of Carlos Morales, the building supervisor who was Respondent's supervisor at Dunbar Middle School; Brian Mangan,
an assistant principal at Dunbar Middle School; Beth Ellen M. Bolger, principal of Dunbar Middle School; Dr. Elizabeth Karas, coordinator for early childhood learning services for the School Board, who supervised Respondent during the 1998-1999 and 1999- 2000 school years; and Gregory K. Adkins, executive director of Human Resources and Employment Relations for the School Board, who supervised Respondent during the 2000-2001 and 2001-2002 school years. Mr. Morales also testified in rebuttal to Respondent's case. The School Board's Exhibits 1 through 13 were admitted into evidence. Respondent testified on her own behalf and presented the testimony of Annie M. Cobb, a custodian at Dunbar Middle School. Respondent's Exhibits 1 through 4 were admitted into evidence. Respondent's Exhibit 5 was a demonstrative exhibit not offered into evidence. Joint
Exhibit 1, the SPALC Agreement, was admitted into evidence.
A Transcript of the hearing was provided to the parties on October 20, 2004. Due to a misunderstanding as to the filing requirement, the Transcript was not filed at DOAH until November 17, 2004. On October 20, 2004, the parties jointly requested an extension of the time for filing proposed recommended orders, which was granted by Order dated October 22, 2004. In accord with the Order granting extension, both parties filed their Proposed Recommended Orders on November 12, 2004.
Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made:
The School Board is the governing body of the local school district in and for Lee County, Florida.
At least since the 1998-1999 school year, Respondent has been employed by the School Board as a custodian. Respondent's employment with the School Board is governed by the SPALC Agreement.
Since the 2000-2001 school year, Respondent has worked an evening shift at P.L. Dunbar Middle School (Dunbar Middle School). During the 2002-2003 school year, Respondent was scheduled to work from 2:30 p.m. to 10:30 p.m. In August 2003, the Dunbar Middle School administration informed Respondent that due to changes in the school schedule, her evening custodial crew's shift would change to 3:00 p.m. to 11:00 p.m. for the 2003-2004 school year.
Respondent is a single parent with four children. In previous years, the two older children were able to care for the younger children while Respondent worked at night. At the start of the 2003-2004 school year, those elder children were no longer living with Respondent, and her 15-year-old and 12-year- old daughters were at home alone in the evenings.
From September through November 2003, Respondent's adult son was coming and going from Respondent's home, and Respondent believed he was selling drugs from her home. In November 2003, Respondent's son was arrested and incarcerated for selling drugs.
Also in the fall of 2003, Respondent's 15-year-old daughter was having disciplinary problems at school. Respondent suspected the girl was having sex with her boyfriend at home while Respondent was at work. Respondent's 15-year-old daughter married the boyfriend in December 2003 and moved from Respondent's home. This left Respondent's 12-year-old daughter at home alone at night while Respondent was at work.
Carlos Morales was the new building supervisor at Dunbar Middle School during the 2003-2004 school year. For the previous three school years, he had been the building supervisor at Dunbar High School. Mr. Morales was ultimately responsible for supervising Respondent, though he worked the day shift and was usually gone by 4:00 p.m. Respondent's immediate supervisor was the head custodian, Sigfredo Torres, who also worked the evening shift.
Early in the 2003-2004 school year, Respondent would periodically call home from work to check on her daughters, who would often tell her that her son was there with strangers. On other occasions, Respondent's conversations with her daughters
led her to believe that her 15-year-old daughter's boyfriend was at the house without permission.
Several times after these conversations with her daughters, Respondent left work early to go home and check on her daughters. Respondent testified that whenever she left work early, she notified Mr. Torres, clocked out, then went directly to her home.
During the month of September 2003, Respondent was documented to have left work early on 17 different occasions. On one day, she left three hours early, and on another day, she left six hours early. The remainder of the days involved much shorter periods of time: on eight days, she left work 15 minutes early; on five days, she left 30 minutes early; and on two days, she left one hour early.
Mr. Morales noted the pattern of Respondent's leaving work early and spoke about the issue with her on at least three occasions in September and early October 2003. When Mr. Morales told Respondent that she needed to take her job seriously, she replied that her family came first.
Mr. Morales testified that Respondent's absences were causing her job to be neglected, requiring other custodians to pitch in and finish cleaning her area, as well as their own. Mr. Morales also received e-mails from teachers complaining about the cleanliness of their classrooms. However, Mr. Morales
conceded that such instances of neglect, as he noted, were limited to those days when Respondent left three or six hours early. Mr. Morales could not say whether Respondent was able to complete all of her assigned duties before leaving 15 to 30 minutes early. Respondent was adamant that she did complete her work before leaving early.
Mr. Morales met formally with Respondent on
October 14, 2003, to document his concerns. Assistant principal Brian Mangan, who was in charge of Dunbar Middle School's physical plant and maintenance, attended the meeting.
Mr. Morales presented Respondent with a memorandum documenting her 17 absences for the month of September 2003. The memorandum noted that Mr. Morales had "serious ongoing concern" regarding Respondent's "attendance and job performance" and cautioned Respondent that abuse of sick or personal leave could result in disciplinary action, up to, and including, dismissal.
Mr. Morales testified that Respondent's attendance improved for two or three weeks after the October 14, 2003, meeting, but then went back to the "old style." Mr. Mangan decided that Respondent's habitual absenteeism merited formal discipline. On November 4, 2003, Mr. Mangan met with Respondent and gave her a letter of reprimand. The letter listed her absences from September, as well as nine occasions in
October 2003, in which Respondent either arrived to work late,
clocked out early, or left work early without clocking out. Mr. Mangan's memorandum repeated the cautionary statement that abuse of leave could result in dismissal and further stated as follows:
Your conduct negatively impacts the overall cleanliness of the building. By leaving early and arriving late the ability to work on cleaning projects that do not get done on a daily basis does not get accomplished. In addition, on days when another member of the custodial staff is absent and you depart early the additional cleaning needs are the responsibility of those who work the full contract day.
At the hearing, Mr. Mangan conceded that he had no evidence that Respondent failed to complete her work on the days she left early and that he never personally witnessed another custodian covering for Respondent on the job. Mr. Morales testified that Respondent did a good job when she was present and working. Mr. Mangan characterized her job performance as acceptable, but not superior to that of her fellow custodians.
Mr. Mangan's statements in his November 4, 2003, were based on a study performed by Aramark Corporation. Mr. Mangan testified that this study showed that cleaning Dunbar Middle School was an eight-hour job for a full custodial crew. Therefore, Mr. Mangan concluded, the absence of any crew member would necessarily have a negative impact on the remaining members. Mr. Mangan also stated that even if a custodian has
completed her regular cleaning duties early, there is always something requiring cleaning in a facility the size of Dunbar Middle School, and a custodian can find plenty of work to keep her busy until the end of her shift.
Respondent did not dispute either the October 14 or the November 4, 2003, memorandum in regard to the accuracy of the documentation regarding her absences. She attempted to justify them by reference to her concerns about her children. However, the bulk of her absences involved Respondent's leaving work from 15 to 45 minutes ahead of her scheduled 11:00 p.m. quitting time. At the hearing, Respondent never adequately explained what value she believed there was in leaving work
15 minutes early, given that her children had been at home alone for several hours at that point. She admitted that she probably used "wrong judgment" in giving the appearance that she was abandoning her job to "take control of my household."
Respondent asked Mr. Morales to notify Beth Bolger, the principal of Dunbar Middle School, that she was requesting a change in her schedule, such as starting and finishing work earlier or a reduction in her working hours. Ms. Bolger was unwilling to make either of these accommodations for Respondent. Ms. Bolger believed it necessary to have the custodial crew at full strength for the entire 3:00 p.m. to 11:00 p.m. shift, because they needed to work in synch. She concluded that
accommodating Respondent's request would require similar accommodations for other employees, potentially leading to a situation in which the custodians could pick and choose when they wanted to work. Ms. Bolger did not want the custodial crew to start work any earlier because there would still be a number of people in the building before 3:00 p.m. At the hearing,
Mr. Mangan also noted that Respondent's problems with arriving late and leaving early predated the August 2003 change in the hours of the evening shift.
After meeting with Mr. Mangan and receiving his memorandum on November 4, 2003, Respondent began to actively seek a transfer within the school district to a job with more convenient hours. Mr. Mangan believed that a transfer would be a good idea for Respondent. Ms. Bolger did not oppose Respondent's seeking a transfer, though she told Respondent that she was on her own in obtaining a transfer.
The SPALC Agreement did not require the administration of Dunbar Middle School to assist Respondent in obtaining a transfer. Neither did the SPALC Agreement require Respondent to seek the assistance or permission of her superiors at Dunbar Middle School before seeking a transfer.
On March 29, 2004, Mr. Mangan provided Respondent with her annual performance assessment for the 2003-2004 school year. The School Board's performance assessment form sets forth a grid
under the general headings of "job knowledge," "job skills," "interpersonal skills," "safety," "dependability," and "personal qualities," with several subheadings under each. For each subheading, the grid allows the supervisor to check one of the following: the letter "N" to indicate that the item in question was "not targeted for assessment"; the letter "E" to indicate that the employee showed an "effective level of performance"; the letter "I" to indicate that the employee "inconsistently practiced" the skill in question; the letter "U" to indicate that the employee showed an "unacceptable level of performance"; or an asterisk to indicate that the skill in question would be a "focus for development/feedback" in the future.
In 24 of the 28 subheadings, Mr. Mangan gave Respondent a grade of "E." Mr. Mangan checked "N" for a subheading regarding paperwork. Under the general heading of "interpersonal skills," Mr. Mangan placed an asterisk under the subheading of "communicates effectively with co-workers, supervisors, and school-based staff." Under the general heading of "dependability," Mr. Mangan found Respondent's performance unacceptable under two subheadings: "utilizes leave only when necessary" and "is punctual."
In the section provided for comments, Mr. Mangan wrote: "Ms. Taylor has had multiple problems with punctuality
and leaving work at the appropriate times. Her attendance has placed a strain on the rest of the staff."
On April 19, 2004, Ms. Bolger sent a letter to Georgiana McDaniel, the School Board's director of personnel services, requesting that Respondent's employment be terminated. In her letter, Ms. Bolger recited Respondent's history of absenteeism, including the events leading up to Mr. Morales' October 14 memorandum and Mr. Mangan's November 4 reprimand, both of which were attached to the Ms. Bolger's letter.
Ms. Bolger further noted that Respondent's "pattern of chronic absences" from work continued after November 4, 2003. Ms. Bolger included a worksheet documenting that Respondent was absent for all or part of 17 work days between November 19, 2003, and February 4, 2004. In February 2004, Respondent became ill and underwent gall bladder surgery. Shortly after the surgery, Respondent suffered a back injury on the job that necessitated missing several days of work in February, March, and April 2004. The School Board has stipulated that the days of work missed by Respondent due to her surgery and her back injury do not constitute grounds for discipline.
Ms. Bolger testified that she waited until April 2004 to make her recommendation in order to monitor Respondent's performance after her November 2003 reprimand and to give her an opportunity to correct her behavior. Ms. Bolger testified that
she based her recommendation on Respondent's pattern of attendance for the entire 2003-2004 school year.
Of the 17 dates listed as absences on the worksheet attached to Ms. Bolger's April 19, 2004, letter, three were approved vacation days and one was a full day of sick leave. On two of the dates, Respondent left early due to an emergency illness, her own in one instance and her daughter's in the other.
The remaining 11 absences between November 19, 2003, and February 4, 2004, involved Respondent's leaving work from 15 minutes to one hour early. At the hearing, Respondent produced time cards indicating that on the bulk of those days, she also clocked in before 3:00 p.m. On three of those days, she was clocked in for more than the eight hours of her shift. On none of those 11 days was she clocked in for fewer than seven hours.
Respondent testified that her practice was to clock in early and to commence her first task, cleaning the cafeteria windows, before 3:00 p.m. Both Mr. Morales and Ms. Bolger testified that, while there was no prohibition on employees clocking in early, their shift began at 3:00 p.m.
Mr. Morales testified that several custodians, including Respondent, had a practice of clocking in early, then going to the teachers' lounge to socialize until their shift began. Neither Mr. Morales nor Ms. Bolger could state with
certainty that Respondent never commenced working before
3:00 p.m., but both were adamant that she was not supposed to begin work until 3:00 p.m.
Respondent also testified that on days she left work early, she often worked through her lunch or break periods. No superior authorized Respondent to work through her lunch or break periods. Further, Respondent's testimony on this point implies that on at least some of the days in question, she came to the school with a plan to work through her breaks and leave early. This contradicts her testimony that she would leave work early in sudden response to telephone conversations with her daughters or when she suspected that her daughters were misbehaving.
Respondent had long been on notice that her absenteeism was a problem that could lead to her dismissal. This problem was noted in her performance assessments for school years 1998-1999, 1999-2000, 2000-2001, 2001-2002, and 2002-2003. In each of those assessments, she was graded either "U" or "I" under the subheading, "utilizes leave only when necessary."
The comments in these assessments sound a common theme:
1998-1999: "Carla does a good job when she
is here! She needs to get her absences under control "
1999-2000: "Carla needs to report to work more dependably and punctually "
2000-2001: "Carla does a good job performing her duties. Attendance, punctuality, and leaving at specified time is a focus for development."
2001-2002: "Attendance and leaving early/arriving late continues to be a problem. Work is usually good when Carla is here for the entire time scheduled, however absences are impacting work."
Attached to two of her performance assessments were additional documents warning Respondent that her absenteeism had to cease. Dr. Elizabeth Karas, Respondent's supervisor during the 1998-1999 and 1999-2000 school years, attached a letter to Respondent's 1998-1999 assessment. The letter dated
February 19, 1999, stated in relevant part:
I have spoken with you on at least
3 occasions about your excessive absences. Since you were hired last January (a little over a year ago) you have been absent the equivalent of approximately 31 days. Nineteen of those days have been since
July 1. This is unacceptable and will be reflected on your performance evaluation.
In a memorandum to Respondent dated August 7, 2001, Gregory K. Adkins, then-principal of Dunbar Middle School, wrote as follows:
The following memorandum is intended to be a summary of the conference held in my office on August 1, 2001. In attendance at this meetings were Carla Taylor, Custodian, Ed Howard, Building Supervisor, and Greg Adkins, Principal.
During this conference Ms. Taylor was informed of the following concerns regarding her attendance.
On June 21, 2001 Mr. Howard and I, Greg Adkins met with Ms. Taylor regarding her frequent absences. During this meeting I expressed concern over the number of days Ms. Taylor was absent from work, left work early, or arrived to work late. At the time of the meeting Ms. Taylor had left work early a total of twenty-five times and arrived late a total of three times.
Following the June conference Ms. Taylor accumulated an additional ten absences. On August 1, 2001, I met with Mr. Howard and Ms. Taylor a second time. In this conference Ms. Taylor agreed that she has been excessively absent from work stating that it was due to a variety of circumstances. She further stated that she would improve her attendance. I requested that in the event she missed work due to illness she provide a note of explanation from a physician. She agreed to the request.
It is the intent of this memorandum to summarize the concerns expressed in the conference. I will continue to work with you, Ms. Taylor, so that you can be successful with completing your required responsibilities. Failure to comply with the requests and directives outlined in this memo may result in further disciplinary action. If you have questions, concerns, or are unclear about any portion of this document please see me.
Despite the repeated warnings concerning her attendance, Respondent's supervisors continued to recommend that she be reappointed to her position. Respondent's testimony made it clear that she simply did not take seriously the concerns
expressed by Mr. Morales and Mr. Mangan in their October and November 2003 conferences with her, largely because she had received the same kind of warnings for years without being subjected to discipline beyond scolding comments in her annual performance assessments. Respondent was genuinely surprised when Ms. Bolger recommended her termination.
Respondent's continued pattern of absences affected her ability to carry out the essential functions of her position and merited discipline in some form. Respondent's long history of engaging in the same behavior, despite repeated warnings and poor "dependability" scores on her performance assessments, fully justified the School Board's decision to terminate Respondent's employment, rather than attempt some lesser form of discipline.
Respondent's defense that her leaving work early did not affect her job performance because she always finished her assigned duties before leaving, is rejected. Mr. Mangan stated that if a custodian finishes her work and still has time on the clock, she should check in with the head custodian, who would then find something for her to do. Mr. Mangan observed that Dunbar Middle School is large and "there is always something to be cleaned in the school." Respondent owed the School Board eight hours of work per shift, with lunch and breaks. It was
not up to Respondent to set her own schedule or to decide when her work was finished.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1012.40(2)(c), Florida Statutes (2004).1/
The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining Respondent. See, e.g., 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).
As a custodian, Respondent is an "educational support employee" as defined by Subsection 1012.40(1)(a), Florida Statutes.
Subsection 1012.40(2)(b), Florida Statutes, provides that educational support employees such as Respondent may be terminated only "for reasons stated in the collective bargaining agreement."
The SPALC Agreement provides that any discipline "that constitutes a reprimand, suspension, demotion or termination shall be for just cause." SPALC Agreement at § 7.09.
Just cause for discipline is a reason which is rationally and logically related to an employee's conduct in the performance of the employee's job duties and which is concerned with inefficiency, delinquency, poor leadership, lack of role modeling or misconduct. State ex rel Hathaway v. Smith, 35
So. 2d 650 (Fla. 1948); In re: Grievance of Towle, 665 A. 2d 55 (Vt. 1995).
The School Board met its burden to prove that it has "just cause" to terminate Respondent's employment for violating Article 9 of the SPALC Agreement. The gravamen of the charge against Respondent, that she was "chronically absent and/or misused her leave" during the 2003-2004 school year, was sustained by the evidence presented at the hearing.
Section 9.014 of the SPALC Agreement provides that excessive absence may result in disciplinary action by the School Board. Section 9.015c of the SPALC Agreement defines "excessive absence" as "a continued pattern of absence that affects an employee's ability to carry out the essential functions of his/her position."
The School Board has demonstrated that there was a "continued pattern of absence" by Respondent, who regularly and
purposely missed work throughout the 2003-2004 school year. Her absences were not occasional or sporadic, and in most cases, were not for unexpected reasons. For the most part, Respondent's absences were provoked by her belief that her children required supervision at home. It was Respondent's responsibility to arrange for child care. The School Board had no duty to change the specifications of Respondent's position, or to facilitate her transfer to a different position, to accommodate her failure to make such arrangements.
The School Board has also demonstrated that Respondent's absences affected her ability to perform the essential functions of her position. Respondent contended that she always completed her assigned tasks before leaving work early. Her testimony on this point was credible, though disputed to some degree by both Mr. Morales and Mr. Mangan, who noted problems in cleanliness and worker morale caused by Respondent's frequent absences. However, Respondent's position as a custodian did not give her the discretion to leave early when she decided her work was finished. Her contract called for her to work from 3:00 p.m. to 11:00 p.m.
Mr. Mangan noted that the Aramark study indicated that it would take a full crew eight hours to clean Dunbar Middle School. He also credibly testified that Dunbar Middle School presented ample cleaning opportunities for a custodian who
happened to finish her regular assignments early. Ms. Bolger expressed legitimate concerns regarding the need to have the custodial crew working in synch and regarding the potential problems that could ensue should she permit Respondent to work different hours than the rest of the crew.
The SPALC Agreement does not provide for a plan of progressive discipline. Respondent was on notice from five previous annual performance assessments, as well as the reprimand given by Mr. Mangan on November 4, 2003, that her pattern of absenteeism was not acceptable and could lead to the termination of her employment with the School Board. Respondent chose not to take these warnings seriously or to change her behavior. Under all the facts and circumstances discussed above, termination is appropriate in this case.
RECOMMENDED that Petitioner, the Lee County School Board, issue a final order that terminates the employment of Respondent, Carla Taylor.
DONE AND ENTERED this 26th day of April, 2005, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2005.
1/ Unless otherwise indicated, all citations are to Florida Statutes (2004).
Honorable John L. Winn Commissioner of Education Turlington Building, Suite 1514
Dr. James W. Browder, III Superintendent of Schools Lee County School Board 2055 Central Avenue
J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue
Robert J. Coleman, Esquire Coleman & Coleman
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.
