vs. Case No.:
Respondent.
The Division of Administrative Hearings has jurisdiction over the parties and subject matter alleged herein. §§ 120.569, 120.57, 1012.40, and 1012.33(6), Fla. Stat.
FACTUAL BACKGROUND
The Respondent is employed as a Courier Ill for the School District of Bay County, Florida (the "District").
The Respondent is not a probationary employee and is subject to Fair Discipline and Dismissal under Article 10 of the Master Contract between the Bay
County School Board and the Bay Educational Support Personnel Association (the "Collective Bargaining Agreement"), which is attached hereto as Exhibit A and incorporated herein.
Respondent's immediate supervisor is Dr. John Haley ("Dr. Haley"), who is the Executive Director of Operational Support Services.
Respondent's responsibilities include delivering and retrieving courier envelopes, books, and materials to and from various sites within the community and the District. (Exhibit B, job description).
The physical requirements of the Courier III position are categorized as "Heavy," which includes a requirement that the employee be capable of "[e]xerting up to 100 pounds of force ... as needed to move objects." (Exhibit B, job description).
On March 11, 2013, Dr. Haley's office received notice in the afternoon from two sites on Respondent's route that they had not received courier service that day. It was thereafter determined that, without notice or explanation, Respondent had not reported to work.
On March 12, 2013, Dr. Haley's office received notice from another school on Respondent's route stating that he had refused to deliver boxes of books that were waiting for pickup and stated he was not allowed to pick up anything weighing more than twenty-five pounds. Even after the school's staff tried to accommodate him by separating the books into boxes weighing nineteen pounds each, he refused to deliver the boxes without explanation. His manner was described as discourteous and unhelpful.
Dr. Haley informed Respondent of the complaints and informally counseled Respondent regarding his need for improvement.
On March 19, 20, 21, and 22, 2013, Respondent, without authorization, completed his route early and reported to work at his second job, which is unrelated to the School Board. He did not have authorization to leave early, he did not provide notice or request leave for these hours, and he received pay from the District for the hours he was not at work.
During the week of April 1 through April 5, 2013, Respondent called in sick on Monday, Tuesday, and Wednesday. Respondent failed to call or come to work on Thursday.
The District contacted him on Friday, April 5, 2013, to find out when he planned to return, and Respondent stated that he was still not well enough to attend work. At 2:00 p.m. that afternoon, Dr. Haley personally observed Respondent at work at his second job and spoke to Respondent regarding his false report that he had been out sick.
The following Monday, April 8, 2013, Respondent was formally
counseled by Dr. Haley regarding deficiencies in his performance and was presented with a Record of Counseling memorializing that meeting, which Respondent did sign. (Exhibit C, Record of Counseling).
During counseling on April 8, 2013 Respondent was counseled on multiple instances of his failure to comply with School Board Policy and he was directed to bring his performance to a satisfactory level. Specifically, Respondent was informed that:
ending his work day early without giving notice or obtaining approval from his supervisor is a violation of School Board Policy;
six hours' pay would be deducted from Respondent's paycheck to reimburse the District for unearned pay Respondent received when he left early without authorization and was thus absent without leave; and
taking sick leave because of a second job, rather than illness, is a violation of School Board Policy.
The following month, over the week of May 20 through May 24, 2013, additional issues and complaints arose via correspondence from various school principals and district personnel concerning Respondent's job performance, poor attitude toward others, and lack of professionalism. The complaints again addressed Respondent's failure to report to certain work sites and refusal to pick up boxes of materials at others.
Following receipt of these complaints, the Superintendent called a
meeting to discuss Respondent's performance on May 23, 2013 with Respondent, Dr. Haley, the Executive Director of Human Resources - Sharon Michalik, and the Deputy Superintendent - Sandra Davis.
During the course of the May 23, 2013 meeting, the Respondent was made aware of the e-mails from school principals and district personnel concerning his job performance, poor attitude toward others, and lack of professionalism.
The Superintendent directed Respondent to make adjustments in his performance and attitude in the workplace. Respondent refused. Respondent
thereafter became irate and confrontational, ultimately yelling at the Superintendent and refusing to vacate both the Superintendent's private office and the premises after the Superintendent had adjourned the meeting.
The Superintendent verbally informed Respondent on May 23rd that he would recommend that the School Board terminate Respondent's employment.
On May 29, 2013, the Superintendent provided Respondent written notice by letter informing Respondent that the Superintendent had suspended Respondent with pay for willful neglect of duty and gross insubordination and that he would recommend to the School Board during its next meeting on June 11, 2013 that the School Board suspend Respondent without pay and proceed to termination. (Exhibit D, Superintendent's 2013 letter to Marvin Jones).
Respondent had previously been warned via a letter from the Superintendent dated October 12, 2010, following an informal hearing regarding Respondent's insubordination, that any "future incident of this or similar nature will result in my recommendation to the School Board that your employment with Bay District Schools be terminated." (Exhibit E, Superintendent's 2010 letter to Marvin Jones).
On June 11, 2013, the Bay County School Board heard the Superintendent's recommendation that the Respondent be terminated.
At the meeting, the Bay County School Board accepted the Superintendent's recommendation and voted to suspend the Respondent without pay and to proceed to terminate his employment.
On June 11, 2013, by Certified Return Receipt Mail, counsel for the Bay County School Board notified Respondent of the Board's decision and Respondent's right to request an administrative hearing. (Exhibit F, School Board Attorney's letter to Marvin Jones).
On July 2, 2013, by U.S. Mail, Respondent provided Petitioner and Petitioner's attorney with Respondent's Petition for Formal Administrative Hearing.
APPLICABLE LEGAL STANDARDS
As a member of the District's operations department, Respondent is an "educational support employee" as defined by§ 1012.40(1)(a), Fla. Stat.
The Superintendent has the authority to recommend to the School Board that any school employee be suspended and/or dismissed from employment.
§ 1012.27(5); see also, Article 10, § 10.5.3. of the Collective Bargaining Agreement.
The School Board has the authority to terminate and/or suspend, without pay and benefits, any school employee, including educational support employees.§§ 1001.42(5)(a), 1012.22(l)(t), and 1012.40(2)(c).
Section 1012.67 authorizes the School Board to discharge any School Board employee who is willfully absent from duty. That section provides:
Absence without leave.-Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the district school board.
This is the same version of the statute that was in effect at the time the School Board entered into the current Collective Bargaining Agreement relating to support personnel, such as Respondent.
An educational support employee who has successfully completed the required and applicable probationary period can be terminated only for the reasons set forth in the applicable Collective Bargaining Agreement. § 1012.40(2)(b).
According to the applicable Collective Bargaining Agreement, the School Board may dismiss any member of the educational support staff upon recommendation of the Superintendent that is based on "good and sufficient reasons therefor." Article 10, § 10.5.1. of the Collective Bargaining Agreement.
The Collective Bargaining Agreement thereafter defines "good and sufficient reasons" to include insubordination, neglect of duty, absence without leave, unsatisfactory work performance, misuse of School Board property or equipment, and violation of School Board Rules. Article 10, § 10.5.1. of the Collective Bargaining Agreement.
School Board Policy section 5.110 instructs that sick leave is to be used only in the event of an employee's, or an immediate family member's, illness or disability and further instructs that a false claim for sick leave shall be deemed an absence from duty without leave. (See Composite Exhibit G, School Board Policies).
School Board Policy section 3.126 provides that "[a]ny employee who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and shall be subject to dismissal from employment."
Pursuant to School Board Policy section 5.109, an employee shall give notice to their supervisors in advance of any absence.
CONCLUSION
Respondent's refusal to complete tasks that are required under his job description constitutes a neglect of duty.
Respondent's conduct on March 19 through 22, 2013 violated Florida Statutes§ 1012.67 and School Board Policy sections 5.109 and 3.126.
Respondent's conduct during the week of April 1 through 5, 2013
violated Florida Statutes § 1012.67 and School Board Policy sections 5.110 and 3.126.
The allegations set forth herein establish good and sufficient reasons to terminate Respondent's employme nt under his contract with the Bay County School Board, Article 10 of the Collectiv e Bargaining Agreement, Florida Statutes, and the policies of the School Board of Bay County, Florida.
I HEREBY CERTIFY that a true and correct copy of the foregoing Administrative Complaint was mailed via Certified Return Receipt Mail to Marvin Jones, 807 Kirklin Avenue, Panama City, Florida, this_ day of July, 2013.
ROBERT C. JACKSON
