STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

CAROL A. FLYNN,

Respondent.

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) Case No. 06-1910

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RECOMMENDED ORDER

Administrative Law Judge Daniel Manry conducted the formal hearing in this proceeding on August 17, 2006, in Fort Myers, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County 2055 Central Avenue

Fort Myers, Florida 33901-3916

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089

STATEMENT OF THE ISSUE

The issue for determination is whether excessive absences constitute just cause to terminate Respondent's employment.

PRELIMINARY STATEMENT

By letter dated May 22, 2006, Petitioner notified Respondent that Petitioner was suspending Respondent without pay and intended to terminate Respondent's employment. Respondent timely requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner presented the testimony of two witnesses and submitted 14 exhibits for admission into evidence. Respondent testified on her behalf and submitted seven exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the one-volume Transcript of the hearing filed with DOAH on September 11, 2006. Pursuant to Respondent's request for an extension of time, Petitioner and Respondent timely filed their respective proposed recommended orders (PROs) on October 10, 2006. Respondent's objections to the admissibility of two letters of reprimand are overruled.

FINDINGS OF FACT

1. Petitioner employed Respondent at Skyline Elementary School in Lee County, Florida, from August 25, 1997, until May 22, 2006, when Petitioner suspended Respondent without pay and benefits. Respondent was a member of the food service

   defined in Subsection 1012.40(1)(a), Florida Statutes (2005), as an educational support employee.

2. Petitioner proposes to terminate Respondent from her employment due to excessive absences during the 2004-2005 and 2005-2006 school years. Petitioner alleges that the absences affected Respondent's ability to carry out the essential functions of her position and that Respondent received two reprimands for excessive absences prior to the proposed termination.

3. The term "excessive absence" is defined in Section 9.015 of the collective bargaining agreement (CBA)

   between Petitioner and the Support Personnel Association of Lee County1 to mean:

   1. three consecutive days of absence without medical verification in a case where abuse is suspected and/or

      
      

   2. three (3) unauthorized absences in a twelve (12) month period and/or

      
      

   3. a continued pattern of absence that affects an employee's ability to carry out the essential functions of his/her position.

      
      

      Art. 9, § 9.015, Petitioner's Exhibit 11 (P-11).

      
      

4. Many of the material facts are undisputed. Respondent was absent for 47 days during the 2004-2005 school year and

   35 days during the 2005-2006 school year. Petitioner does not suspect abuse in connection with any of the absences within the meaning of Article 9, Section 9.015.a. of the CBA. All of the absences were caused by medical conditions identified in the

   record as diverticulitis and gout. Respondent did not have three consecutive days of absence without medical verification. Whenever requested, Respondent consistently provided a doctor's note for her absence from work.

5. The admitted absences that exceeded Respondent's accrued leave were unauthorized within the meaning of Article 9, Section 9.016. The relevant portion of the CBA defines the term "unauthorized absence" as:

   1. Failure of an employee to give notice of absence may be regarded as an unauthorized absence. . . .

      
      

   2. Absence in excess of accrued sick and personnel leave, when such absence is not specifically authorized in advance. . . .

      
      

      Art. 9, § 9.016, P-11.

      
      

6. None of the absences were unauthorized within the meaning of Article 9, Section 9.016a. Respondent consistently provided notice of absence to her employer, frequently before her work shift began at 7:00 a.m., much to the displeasure of her supervisor.

7. Respondent was absent for 28 days in excess of her leave during the 2005-2006 school year. The 28 absences were not authorized in advance, were unauthorized absences within the meaning of Article 9, Sections 9.015b. and 9.016b., and the excessive absences constitute grounds for "appropriate discipline" authorized in Article 9, Sections 9.011 and 9.014.

8. Respondent disputes that any of her absences affected her ability to carry out the essential functions of her position within the meaning of Article 9, Section 9.015c. Respondent also disputes allegations that her absences during the 2004-2005 school year can be considered in this proceeding, that she has any prior discipline, and that termination is "appropriate discipline" within the meaning of Article 9, Sections 9.011 and 9.014.

9. A preponderance of evidence does not support a finding that the 47 absences during the 2004-2005 school year are grounds for termination or that they affected Respondent's ability to carry out the essential functions of her job during that school year. During the 2004-2005 school year, Respondent's school principal recommended on March 24, 2005, that Respondent be rehired for the 2005-2006 school year. The principal signed Respondent's 2004-2005 Performance Assessment scoring Respondent at an "effective level" of performance in all

   16 areas targeted for assessment. The Performance Assessment rated Respondent as "punctual in attendance" and "exhibits dependability." The area on the Performance Assessment reflecting "Attendance" and "Total hours absent" is blank. Petitioner employed Respondent for the 2005-2006 school year without conditions and without probation.

10. A preponderance of evidence does not support a finding that the 28 unauthorized absences during the 2005-2006 school year affected Respondent's ability to carry out the essential functions of her position. The principal views Respondent's absences as a "health issue, it was not a work issue." He describes Respondent as a "good worker." The testimony of Petitioner's two witnesses that was intended to provide hearsay testimony of Respondent's peers at work was neither credible nor persuasive.

11. A preponderance of evidence does not support a finding that two prior actions intended by Petitioner to be letters of reprimand evidence prior disciplinary action. Petitioner issued each purported letter of reprimand during the 2005-2006 school year,2 but neither letter included a notice of rights that provided Respondent with a clear point of entry into the administrative process.

12. Article 7, Section 7.09 of the CBA defines the term "discipline" to include a reprimand and provides in relevant

    part:

    
    

    Employees subject to disciplinary action as specified in Articles 7.091-7.093 shall be entitled to appeal through the grievance process as set forth in Article 5 of the collective bargaining agreement.

    Article 5 of the CBA describes an extensive grievance process that may culminate in arbitration.3 However, arbitration is not the exclusive procedure of review for proposed discipline.

13. None of the grievance procedures may be construed to deny rights otherwise guaranteed by law.4 Petitioner utilizes the administrative process available at DOAH in connection with challenges to proposed discipline.

14. Neither of the alleged prior reprimands complied with material procedural protections in the CBA. Contrary to Article 7, Section 7.09, Petitioner's Department of Personnel Services never conducted an informal pre-determination conference to review the allegations against Respondent and to afford Respondent an opportunity to respond. Petitioner did not provide Respondent with two days' advance notice to have a representative accompany her to a pre-determination conference where she would have been permitted to present relevant information. The director of personnel did not make a recommendation of disciplinary action to the superintendent.

15. Respondent was sick and not at work on February 21, 2006, and Petitioner never delivered the letter to Respondent. Respondent's supervisor submitted the matter to the executive director of human resources initiating the process for this proposed termination of employment. However, Respondent never had an opportunity to grieve the second "Letter of Reprimand,"

    and Petitioner submits the second "Letter of Reprimand" as evidence of prior discipline that supports the proposed termination of employment.

16. The CBA does not prescribe termination of employment as required discipline for unauthorized absences. The "appropriate discipline" in this proceeding is properly determined by reference to the severity of Respondent's misconduct and any aggravating or mitigating circumstances.

17. Evidence of aggravating circumstances is limited to the excessive frequency of absences. The purported prior "Letters of Reprimand" were issued without a clear point of entry, in violation of relevant procedural protections in the CBA, and the trier of fact does not consider the purported letters of reprimand for the purpose of determining the appropriate discipline.

18. Several mitigating factors are relevant to a determination of "appropriate discipline." Petitioner employed Respondent for nine years. Respondent has been a good worker during that time. The unauthorized absences are attributable to medical conditions rather than misconduct. Respondent has been successfully treated for her medical condition, her present health is good, and there is no evidence that the unauthorized absences will persist after her current suspension.

    CONCLUSIONS OF LAW

    
    

19. DOAH has jurisdiction over the parties and the subject matter. § 120.57(1), Fla. Stat. (2003). The parties received adequate notice of the administrative hearing.

20. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment for the reasons stated in the charging document and that termination is an appropriate penalty. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

21. Petitioner showed by a preponderance of evidence that Respondent had more than three unauthorized absences in a 12-month period within the meaning of Article 9, Section 9.015b and has "just cause" to discipline Respondent. However, a preponderance of evidence does not show that the unauthorized absences affected Respondent's ability to carry out the essential functions of her position or that termination from employment is an appropriate discipline within the meaning of Article 9, Sections 9.011 and 9.014.

22. The CBA does not define "just cause" and does not prescribe a plan of progressive discipline. A preponderance of evidence does not support a finding of prior disciplinary action

    against Respondent. Respondent proposes in her PRO that the current period of suspension is an appropriate discipline.

23. The CBA did not waive Respondent's legal right to an administrative hearing. Art. 5, § 5.102. Petitioner must provide Respondent with a clear point of entry before relying on the two purported letters of reprimand as prior disciplinary history to support the proposed termination of employment. Compare McIntyre v. Seminole County School Board, 779 So. 2d 639 (Fla. 5th DCA 2001) (agency must show it provided employee with a clear point of entry in order to show that employee waived the right to a administrative review when CBA does not waive other legal rights); and Sublett v. District School Board of Sumter County, 617 So. 2d

374 (Fla. 5th DCA 1993) (employee does not waive the right to administrative review where collective bargaining agreement does not waive administrative review) with Sickon v. School Board of Alachua County, Florida, 719 So. 2d 360 (Fla. 1st DCA 1998) (no right to administrative review where arbitration is exclusive review authorized in CBA).

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order suspending Respondent's employment from May 22, 2006, through the date of this Recommended Order.

DONE AND ENTERED this 6th day of November, 2006, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 6th of November, 2006.

ENDNOTES

1/ The CBA is also identified in the record as the SPALC agreement.

2/ Petitioner issued the purported letters of reprimand on September 21, 2005, and February 21, 2006.

3/ See Art. 5, §§ 5.07 - 5.109.

4/ Art. 5, § 5.102.

COPIES FURNISHED:

Robert J. Coleman, Esquire Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089

Robert Dodig, Jr., Esquire School District of Lee County 2055 Central Avenue

Fort Myers, Florida 33901-3916

Daniel J. Woodring, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. James W. Browder, III, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3988

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: 06-001910

Orders for Case No: 06-001910