STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM )

BEACH COUNTY, FLORIDA )

)

Petitioner, )

vs. ) CASE NO. 83-3962

)

GUIDO MALVAREZ, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on September 5, 1984, by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Abbey G. Hairston, Esquire

3323 Belvedere Road

West Palm Beach, Florida 33402

For Respondent: Hyman Borax and Dawn P. Bonard

Qualified Representatives Post Office Box 449

Boynton Beach, Florida 33435 ISSUE

Whether Respondent should be dismissed from his employment as a custodian with the Palm Beach County School Board on charges of misconduct, immorality, neglect of duty, insubordination and excessive absenteeism.

BACKGROUND

By "Petition for Dismissal" of December 15, 1983, Thomas J. Mills, as Superintendent of Schools of Palm Beach County, recommended dismissal of Guido Malvarez (respondent) on charges of misconduct, immorality, willful neglect of duty, insubordination, and excessive absenteeism. Respondent, who was promptly suspended without pay, disputed the charges and requested a hearing. This case was then forwarded to the Division of Administrative Hearings for assignment of a hearing officer.

In December, 1983, respondent was a noninstructional employee of petitioner, School Board of Palm Beach County ("School Board") serving under an annual contract not due to expire until the end of the school year, June 30, 1984. Subsequently, he was not reappointed for the 1984-85 school year.

At hearing on September 5, 1934, the School Board presented the testimony of George R. Hogan and Robert Collins, and moved petitioner's Exhibit Nos. 1 through 22 in evidence.

Respondent testified on his own behalf and presented the testimony of Dawn Bonard. Respondent's Exhibit No. 1 was moved in evidence but rejected on grounds of relevancy. Both Ms. Bonard and Hyman Borax were accepted as qualified representatives.

The transcript of hearing was filed on September 19, 1984. The School Board filed proposed findings of fact on October 18, 1984; the respondent did not file proposed findings.

Based on the evidence adduced at hearing, the following facts are determined:

FINDINGS OF FACT

1. Prior to his dismissal in December, 1983, respondent had worked as a custodian for the School Board for over eight years. Since 1976, he had been a custodian at Gulfview Junior High School.

   
   

2. At Gulfview Junior High, he worked the 2:00 p.m. - 10:00 p.m. shift, except for summer vacation periods, when he worked the 7:30 a.m. - 4:00 p.m. shift.

   
   

3. During the 1981-82 and 1982-83 school years, respondent's work record for attendance and punctuality was less than satisfactory. The principal of Gulfview Junior High, Arthur J. Palin, noted on respondent's 1981-82 performance evaluation that improvement was needed in job attendance and punctuality. The principal noted that, in case of absence, phoning the school prior to report-in time would enable a substitute to be found. On many occasions, respondent had failed to comply with this requirement.

   
   

4. Respondent, despite prior warnings not to leave work early without permission, repeatedly did so. Finally, on February 11, 1983, Principal Palin notified him, in writing, of various deficiencies in his job performance and the need for dramatic improvement. Specifically, respondent was notified that since September, 1982, he had left his job early on 18 different occasions without excuse or explanation; that he had been seen (and spoken to about) watching television, reading newspapers, and spending long periods of time on the telephone and engaging in personal activities during working hours; and that the area of the school which he was responsible for cleaning was the only one which had received negative comments during the last plant inspection. The Principal ended the memorandum by advising respondent that "Unless all actions on your part dealing with the above cease immediately, I will not recommend you for continued employment for the 83/84 school year." (petitioner's Exhibit 1) Respondent signed the memorandum, acknowledging receipt. The principal reinforced this warning with several verbal warnings that respondent needed to improve his work performance.

   
   

5. The written warning notice resulted in a marked, though short-lived, improvement in respondent's work performance. Between February 11, 1983 and May, 1983, respondent reported to work on time, did not leave early, and received no unsatisfactory reports. (Deposition of Palin, p. 33)

6. On May 5, 1983, Mr. Hogan, respondent's immediate supervisor, inspected C-Wing of Gulfview Junior High (respondent's area of responsibility) and found discrepancies such as dirty floors, lack of dusting and dirty window sills.

   
   

7. On May 5, 1983, respondent failed to report to school and failed to timely report his absence.

   
   

8. On May 10, 1983, Principal Palin gave respondent his 1932-83 school year performance evaluation, which was accompanied by another written notice. The evaluation graded him less than satisfactory in categories of Utilizes Time Efficiently ("does not follow regular routine; spends time on task(s) of personal nature and not on assigned job. . ."); Attendance ("absent far too often"); Punctuality ("arrives late or leaves early on many occasions.") Other areas of needed improvement were also identified. Respondent signed the evaluation, indicating it had been discussed with him, but expressed--by check mark--his disagreement with its content. The warning notice of the same date advised that he had been absent on March 5, 1983 without informing the school and that, because of that and numerous other similar incidents, "I must inform you that if you fail to notify us of your absence in the future, I will not recommend you for reemployment or will ask for your resignation." (petitioner's Exhibit 3)

   
   

9. Despite respondent's assertion to the contrary, the evidence convincingly demonstrates that he was repeatedly warned, both verbally and in writing, of deficiencies in his attendance, punctuality and quality of work; that he knew the correct procedure for reporting absences; and that he knew that, absent dramatic improvement, his continued employment with the school system was in jeopardy.

   
   

10. In September, 1983, Principal Palin met with his custodians, including respondent, and specifically warned them that they were not to leave work early without permission. On November 23, 1983, respondent requested permission to leave work early; but when Principal Palin denied his request, respondent left work early anyway.

    
    

11. The quality of respondent's work and his responsiveness to his supervisor's requests, continued to deteriorate. On September 30, 1983, an inspection of his work area revealed dirty walls, dirty fixtures, dirty windows, and bugs in light fixtures. On October 20, 1983, Mr. Hogan asked him to change the light fixtures in a classroom; when he did not do so, Mr. Hogan changed them himself. In November, 1983, respondent ignored his supervisor's request to clean bugs from light fixtures prior to an inspection. On each of these occasions, respondent was warned verbally if not in writing, of his work deficiencies.

    
    

12. These deficiencies--together with further observations of respondent reading newspapers and watching television during working hours, complaints by teachers about the condition of their rooms; and continued reports by supervisors of respondent's deteriorating work--led Principal Palin to recommend to the Superintendent of Schools that respondent be dismissed. These grounds have been substantiated by the evidence and provide a sufficient basis for respondent's dismissal.

    
    

13. On November 30, 1983, after being informed of the charges against him and of the principal's recommendation that he be dismissed, respondent threatened Mr. Hogan, his supervisor: "If anything happens and I lose my job, you are going to pay." (petitioner's Exhibit 21, testimony of Hogan)

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

15. School Board Policy 3.27 governs the suspension and dismissal of its employees. It provides procedural safeguards and, generally, allows employees to be suspended or dismissed only for "cause." Specific grounds are not enumerated. Rule 6B-4.08, Florida Administrative Code, although relied on by respondent, is inapplicable since it applies only to instructional personnel of the various school systems.

    
    

16. In job disciplinary proceedings such as this, the employer has the burden of proving its charges by evidence as "substantial as the consequences." See, Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). The School Board has met its burden of proving "cause" for respondent's dismissal. Despite repeated warnings and ample opportunity to improve, respondent's work performance fell short of minimal standards which the School Board may rightfully require of its employees. His repeated unexcused absences, early and unexcused departures from work, and deteriorating work performance show neglect of duty and excessive absenteeism; his threat to his supervisor constitutes misconduct and insubordination. (Webster's New International Dictionary, at p.1288, defines "insubordinate" as including "mutinous" conduct.) The charge of immorality, however, has not been sustained by the evidence.

RECOMMENDATION

Based on the foregoing, it is, RECOMMENDED:

That respondent be DISMISSED from his employment, effective January 4, 1984, on grounds of neglect of duty, excessive absenteeism, misconduct, and insubordination, and that the charge of immorality be dismissed.

DONE and RECOMMENDED this 2nd day of November, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR., Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1984.

COPIES FURNISHED:

Abbey G. Hairston, Esquire 3323 Belvedere Road

West Palm Beach, Florida 33402

Hyman Borax Dawn P. Bonard

Post Office Box 449

Boynton Beach, Florida 33435

Thomas J. Mills, Superintendent School Board of Palm Beach County 3323 Belvedere Road

West Palm Beach, Florida 33402

Docket for Case No: 83-003962

Orders for Case No: 83-003962