vs. ) CASE NO. 89-3231
Respondent. )
31 and November 8, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
For Petitioner: Jaime C. Bovell, Esquire
Effective April 20, 1989, Respordent's employment as an annual contract teacher was suspended by the Dade County School Board, which thereupon instituted proceedings to dismiss Respondent. By letter dated June 5, 1989, Respondent requested a formal hearing on the matter. Thereafter, on June 12, 1989, the case was referred to the Division of Administrative Hearings.
At hearing, the School Board announced that it intended to pursue only the allegation that Respondent had been willfully absent without leave "from on or about 30 January 1989 through on or about 10 March 1989," and that it was abandoning the remaining allegations of misconduct set forth in the Notice of Specific Charges. Its case against Respondent consisted of the testimony of five witnesses: the principal of the school to which Respondent was assigned;
the principal's secretary; an assistant principal of the school; a custodian who worked at the school; and the School Board's Supervisor of the Office of Professional Standards. In his defense, Respondent presented his own testimony as well as the testimony of his psychiatrist. In addition, he offered into evidence five exhibits, all of which were admitted.
At the close of the hearing, upon being advised that Petitioner would be furnishing him a copy of the transcript, the Hearing Officer advised the parties on the record that post- hearing pleadings had to be filed no later than fifteen days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer received a copy of the hearing transcript on December 11, 1989. That same day, Respondent filed his proposed recommended order. The School Board filed its proposed recommended order on December 22, 1989. The proposed findings of fact contained in these post-hearing pleadings have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
Based upon the record evidence, the Hearing Officer makes the following Findings of Fact:
Respondent was employed as a teacher by the Dade County School Board during the 1988-89 school year on an annual contract basis. His employment commenced on August 31,1988.
At all times he was assigned to the ESOL (English for Speakers of Other Languages) program at Carver Middle School.
The principal of Carver Middle School, and Respondent's immediate supervisor, was Samuel Gay. Simine Heise was one of Gay's assistant principals. In Gay's absence, Heise served as acting principal.
At around 12:00 p.m. on Monday, January 30, 1989, following a meeting with Gay, Respondent became physically ill at school. He left school for the day after notifying Gay and securing his authorization. Respondent was placed on sick leave for the remainder of the school day.
At no time thereafter did Respondent report back to work. Various substitute teachers covered Respondent's classes during the period of his absence. Effective April 20, 1989, he was suspended by the School Board and it initiated action to terminate his employment on the ground that he had been willfully absent without authorization.
During the period of his absence, Respondent was under the care of a psychiatrist, Dr. Adolfo M. Vilasuso. He was suffering from depression, insomnia, stress, anxiety and stress- induced gastrointestinal distress. He was treated by Dr. Vilasuso with psychotherapy and medication. Respondent's condition was primarily the result of personal problems involving his son and former wife. He was obsessed by these matters. He paid very little attention to anything else, including his teaching responsibilities. Although he was physically able to report to work, he was so distracted and preoccupied by his personal problems that he could not effectively discharge his teaching duties.
The School Board requires that, in order to continue to obtain sick leave, a teacher absent because of illness must contact his immediate supervisor or the supervisor's designee by 2:00 p.m. of each day of absence and give notice
that he will be out sick the following day. Teachers are advised of this "2:00
p.m. notification" requirement in the teacher handbook, a copy of which Respondent had received prior to his absence. Throughout the period of his absence, Respondent was capable of understanding and complying with this requirement.
A teacher who complies with the "2:00 p.m. notification" requirement, but has exhausted all of his accrued sick leave credits, will automatically be placed on authorized leave without pay for illness for a maximum of 30 days, without the necessity of formal School Board approval. The leave will be extended beyond 30 days only if the teacher submits an appropriate application for an extension, accompanied by a "statement from [the teacher's] physician explaining why such [extended] leave is necessary."
After leaving school on January 30, 1989, Respondent did not contact any member of the Carver Middle School administration or its staff concerning his absence until Saturday, February 11, 1989, when he telephoned Principal Gay's secretary, Maria Bonce, at her home and left a message with her daughter that he would not be at work the following Monday.
On February 15, 1989, Dr. Vilasuso telephoned Carver Middle School and spoke with Assistant Principal Heise. Dr. Vilasuso told Heise that Respondent was under his care. He was vague, however, regarding the nature of Respondent's illness and he did not indicate when Respondent would be able to return to work.
On February 21, 1989, not having heard anything further from either Respondent or Dr. Vilasuso, Principal Gay sent Respondent the following letter:
The purpose of this communication is to determine your intentions for the
balance of this school term. You've been absent from your teaching position at Carver Middle School since 12:00 a.m [sic] on January 30, 1989. On Saturday, February 11, you called my secretary, Mrs. Bonce, indicating you would return to work next week. On February 15, an individual identifying himself as your doctor called Carver Middle School and spoke to the assistant principal, Mrs.
Heise. When he was requested [to provide information] about your illness, medical status and your ability to return to work, he stated he would not give further information without your approval.
Until now we have not heard from you since February 11 when you contacted Mrs. Bonce at home. Also, the phone number and address we have on record obviously are no longer yours, therefore, I am unable to ccntact you.
In addition to the above, we have no lesson plans, roll books, grade books for your students. It has been reported to me by custodial staff that you are frequently observed in the building
after duty hours yet you have failed to communicate with me personally or the assistant principal or speak with your department head or the assistant principal for curriculum.
I must call your attention to the contract between Dade County Public Schools and UTD and the teacher handbook which has information whiih addresses teachers' absences. You are clearly in violation of these documents.
Finally, may I remind you of a memorandum given to you on January 27. A written response was due to me on February 1st. In addition, a conversation for the record was scheduled for February 1st. That conference will be held. You simply need to tell me when.
I must remind you that failure to comply with district and local rules can result in non-reappointment for the 1989-90 school year.
After receiving the letter, Respondent, on Thursday, February 23, 1989, telephoned Carver Middle School and spoke with Gay. Although he did not indicate to Gay when he was going to return to school, he did leave Gay with the impression that his condition was improving. Respondent also intimated during the telephone conversation that Gay would be receiving a letter from Dr. Vilasuso concerning Respondent's illness.
The following Monday, February 27, 1989, at around 9:00 p.m., Respondent telephoned Secretary Bonce at her home and told her that he would be absent from school the remainder of the week due to illness.
On Wednesday, March 8, 1989 Respordent telephoned Gay at school. He told Gay that he wanted to apply for sick leave and asked how he would go about doing so. Gay responded that he had referred Respondent's case to the School Board's Office of Professional Standards and that therefore the matter was "out of his hands" and Respondent would have to contact that office.
On no occasion other than during the foregoing telephone conversations of February 11, 23 and 27, 1989, and March 8, 1989, did Respondent communicate with Gay or any member of Gay's administrative staff concerning his absence. Respondent's failure to so communicate with either his immediate supervisor or anyone on his immediate supervisor's administrative staff was willful.
On March 28, 1989, Dr. Joyce Annunziata, the head of the School Board's Office of Professional Standards, sent Respondent a letter, which provided in pertinent part as follows:
The Office of Professional Standards has been advised that you have been absent without authority from your duties as an employee in the Dade County Public Schools. During this period you did not obtain authorized leave from your
supervisor.
Florida Statute 231.44 provides:
Any District school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall
be subject to termination by the school board.
Your absence without authorized leave constitutes willful neglect of duty and subjects your employment with the Dade County Schools to immediate termination.
Please be advised that unless you provide within five days from receipt of this letter a written notification to the Office of Professional Standards, 1444 Biscayne Boulevard, Suite 215, Miami, FL 33132, of your resolution of your unauthorized leave status, your termination will be submitted to the School Board for final action at its meeting of April 19, 1989.
Respondent received Dr. Annunziata's letter on April 10, 1989. He did not provide the Office of Professional Standards with the requisite "written notification" within five days of his receipt of the letter. Accordingly, the matter was considered by the School Board at its April 19, 1989, meeting.
Thereafter, Respondent submitted to the Office of Professional Standards a written request for leave without pay for illness. The request sought leave for the period from February 8, 1989, through June 19, 1989. Although the form on which Respondent made his request noted that a "[d]octor's statement indicating diagnosis [and] length of time required for leave" was required, no such statement accompanied Respondent's request. A letter from Dr. Vilasuso concerning Respondent's condition was subsequently received by the Office of Professional Standards on April 28, 1989.
CONCLUSIONS OF LAW
"Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board." Section 231.44, Fla. Stat.
In the instant case, the School Board seeks to terminate Respondent's employment as a teacher pursuant to Section 231.44, Florida Statutes. It alleges that he was "willfully absent from duty without leave" from "on or about
30 January 1989 through on or about 10 March 1989."
It is undisputed that Respondent was absent from duty throughout this period. Furthermore, the record evidence establishes that Respondent did not have authorization or leave to be absent for the entire period of his absence inasmuch as it demonstrates that he did not comply with the School Board's "2:00
Madelyn P. Schere, Esquire
Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134
Dr. Joseph A. Fernandez Superintendent of Schools Dade County School Board
