STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-0702

)

GEORGE LEE, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on January 27, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: Heidi Shulman-Pereira, Esquire

Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Donald Appignani, Esquire

Phillips, Levy & Rind, P.A.

3001 Ponce de Leon Boulevard, Suite 214 Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Amended Notice of Specific Charges filed against him, and, if so, whether he should be terminated from his employment with Petitioner.

PRELIMINARY STATEMENT

By correspondence dated February 6, 1997, Petitioner advised Respondent that it was suspending him from employment and

initiating dismissal proceedings effective February 5, 1997, and Respondent timely requested an evidentiary hearing regarding the charges against him. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of John Leyva, Linda Battle Morris, Dennis Caldwell, James L. Parker, Terri Chester Davis, Tom Albano, Lawrence King, Susan Lily, and Thomasina O'Donnell. The Respondent testified on his own behalf and presented the testimony of Delores Williamson and Jessica Murgueytio. Additionally, Petitioner's Exhibits numbered 1-34 and Respondent's Exhibits numbered 1 and 3 were admitted in evidence.

Petitioner submitted post hearing a proposed recommended order, and Respondent submitted a post-hearing brief. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent was employed by Petitioner in 1982. From 1984 to 1993, he was employed as a head custodian. He was demoted from that position to the position of custodian in 1994. Thereafter, he was employed by Petitioner as a custodian assigned to Lindsey Hopkins Technical Education Center.

2. At all times material hereto, John Leyva was the principal of Lindsey Hopkins. Leyva delegated many of his responsibilities as principal, including his supervision over the

   custodial staff, to other administrative personnel.

   
   

3. Prior to his assignment to Lindsey Hopkins, Respondent was the subject of progressive discipline, consisting of formal and informal conferences, counseling sessions, and reprimands.

4. At the beginning of Respondent's employment at Lindsey Hopkins, Respondent was assigned to the third shift, from 11:00 p.m. to 7:00 a.m. During the 1994-95 school year,

   Respondent was frequently absent, and he failed to follow appropriate notification procedures with respect to his absences and his whereabouts during work hours.

5. From July 1994 through July 1995, Respondent was absent a total of 76 days, of which 7 1/2 days were without authorization. From June 2, 1995, through June 6, 1995, Respondent was absent without authorization for three consecutive work days.

6. Respondent's absences had an adverse impact on his work site inasmuch as his absences created a morale problem among staff and resulted in areas within Lindsey Hopkins not being cleaned properly. Eventually, due to Respondent's attendance problems, Respondent was moved from the third shift to the second shift, from 3:00 p.m. to 11:00 p.m. During this time Respondent was to report to James Parker, the on-site vice-principal.

7. As a custodian, Respondent was also supervised by Dennis Caldwell, Linda Morris, and Lawrence King. Although Caldwell was not present during the major portion of Respondent's second shift, since Caldwell's regular hours ended at 4:00 p.m., there

   were many times when Caldwell went to the work site in the evening to spot-check his employees and address different problems in the custodial area.

8. On March 23, 1995, Respondent was issued a memorandum that delineated his absences during the school year and which provided numerous directives to Respondent regarding the appropriate procedures he was to follow if he were going to be absent in the future. He was directed to communicate his intent to be absent directly to his supervisors and to provide documentation from a treating physician for his absences due to illness. He was also directed to comply with Petitioner's leave procedures.

9. Respondent was also provided with notice of the adverse impact that his absences had on his work environment. He was offered assistance to achieve regular attendance. He was advised that continued non-compliance with attendance procedures and directives would be considered a violation of his professional responsibilities.

10. On May 17, 1995, Respondent was not in his assigned work area, and he had failed to notify anyone of his whereabouts. Further, he refused to discuss his absence with Caldwell after being directed to speak with Caldwell.

11. On May 26, 1995, Respondent was involved in a physical altercation with a woman on the premises of Lindsey Hopkins during Respondent's working hours. During the course of this incident, King noticed that Respondent was staggering and that he

    had alcohol permeating from his breath. King concluded that Respondent was under the influence of alcohol and sent Respondent home.

12. On May 30, 1995, Respondent was directed to attend a conference-for-the-record on June 7, 1995, to address his conduct. Respondent failed to attend the conference-for-the- record. On June 8, the conference was re-scheduled for June 14, but Respondent did not attend that conference-for-the-record either.

13. Respondent was administratively referred to Petitioner's Employee Assistance Program in an effort to provide him with assistance in eliminating his continuing pattern of unauthorized absences and performance-related problems.

14. On March 19, 1996, despite directives from Caldwell regarding Respondent's work responsibilities, Respondent failed to complete his daily work assignments with respect to the lockers within his assigned area. In a written warning, Respondent was notified that his continued non-performance would result in further disciplinary action.

15. On July 30, 1996, Respondent again failed to carry out his job responsibilities. He failed to empty trash cans and sweep or mop the corridors within his assigned area. In a written warning, Respondent was again directed to complete his daily work assignments.

16. From July 1995 through July 1996, Respondent was absent for 45 days, 7 1/2 of which were without authorization. During

    the period from July 11, 1995, through July 18, 1995, Respondent was absent without authorization for at least three consecutive work days.

17. On September 18, 1996, Tom Albano saw Respondent sleeping on the floor in the child care room during his work hours. The child care room is not an authorized break area. Further, at the time he was caught sleeping, Respondent was not on an authorized break. Albano told Respondent that his conduct was improper and that there were other things he could be doing rather than sleeping.

18. On October 1, 1996, Parker found Respondent sleeping on the couch in the child care room at a time when Respondent was not on an authorized break.

19. Parker prepared a memorandum addressing the sleeping incidents to give to Respondent. The memorandum documented the appropriate procedures concerning Respondent's work schedule and break areas. It notified Respondent that his actions adversely impacted the effective operation of the work site. It provided directives to Respondent and advised him that non-compliance with the directives would be considered a violation of his employment responsibilities.

20. In order to give Respondent the memorandum, Parker called Respondent into his office to meet with him and Albano on October 2. During that meeting Respondent reacted to Parker in a loud, irate, aggressive, hostile, and threatening manner. He called Parker a racist and a bigot and told Parker that Parker

    must be on drugs. Parker became concerned for his own safety. Parker and Albano provided written summaries of the meeting to Principal Leyva.

21. Leyva directed Respondent to attend a conference-for- the-record on October 7, 1996. That conference was canceled by Leyva, with the consent of Respondent's union, due to an injury Leyva suffered. The conference-for-the-record was re-scheduled for the following day, but Respondent failed to attend. The conference was re-scheduled for October 15 but was postponed at the request of Respondent's union and re-scheduled for

    October 22. Respondent failed to appear for the October 22 conference and was absent from his work site October 21-28, 1996.

22. The school administrators subsequently learned that Respondent was incarcerated for domestic violence at the time of the October 22 conference and during the period of October 21-28. It is Petitioner's policy that absences due to incarceration are documented as unauthorized leave without pay. As a result, Respondent's absences from October 21 through October 28 were documented as unauthorized leave without pay.

23. Respondent returned to Lindsey Hopkins on October 30. Parker requested that Respondent come to Parker's office so they could discuss Respondent's unauthorized leave status and so that Parker could direct Respondent to report to the Office of Professional Standards (hereinafter "OPS"). Due to his previous meeting with Respondent and out of concern for his own safety, Parker had two other employees present in his office awaiting

    Respondent's arrival.

    
    

24. When he arrived at Parker's office, Respondent had a strong odor of alcohol permeating from his breath. He also appeared to be stumbling, his eyes were red and bloodshot, and he appeared angry, upset, and agitated. Therefore, Parker directed Respondent to report to OPS for re-admittance to Lindsey Hopkins and had Respondent escorted off the school campus.

25. Respondent failed to follow Parker's directive to report to OPS before returning to Lindsey Hopkins. Instead, Respondent reported to Lindsey Hopkins on the following day, October 31, 1996.

26. When Leyva was advised that Respondent was at Lindsey Hopkins, he directed that Respondent come to Leyva's office. Two other employees were present in Leyva's office. When Respondent came to Leyva's office, those present noticed that Respondent was swaying and mumbling, his speech was slurred, and he smelled of alcohol.

27. Leyva contacted Dr. Thomasina O'Donnell in the OPS for further direction, and she advised him to ask Respondent if he would consent to take a drug/alcohol test based upon reasonable suspicion. Respondent agreed to take the test and was escorted to the testing facility. His breath alcohol test revealed the presence of alcohol in Respondent's system.

28. The following day Leyva administratively referred Respondent to OPS, and OPS thereafter sent Respondent a letter requesting that he contact the office to schedule a conference-

    for-the-record.

    
    

29. OPS convened Respondent's conference-for-the-record on November 5, 1996. Respondent's aggressive and violent behavior at the work site was discussed, as was his October 31 breath alcohol test confirming the presence of alcohol in his system and, thus, his intoxication at the work site. His attendance and future employment status were also discussed. Respondent was directed to provide OPS with official documentation by

    November 12, 1996, showing his enrollment and participation in an alcohol recovery program. He was also advised of his right to clarify, explain, and/or respond to any information recorded in the conference summary.

30. Respondent was again referred to the Employee Assistance Program and was administratively re-assigned to another work location pending formal notification of any disciplinary action.

31. Respondent never provided any documentation to OPS to clarify, explain, respond to, or refute any of the allegations made against him during the conference held on November 5. Likewise, Respondent never complied with the directive given him during the November 5 conference that he provide OPS with documentation of his enrollment and participation in an alcohol recovery program.

32. From November 1995 through November 1996, Respondent was absent a total of 37 days, 12 of which were without authorization. From July 1996, the commencement of the

    contractual school year, to February 5, 1997, the date on which Petitioner suspended Respondent and initiated these dismissal proceedings, Respondent had already accrued a total of 24 days of absences, 12 of which were without authorization. From

    October 21, 1996, through November 5, 1996, Respondent was absent without authorization for at least three consecutive work days.

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

34. Count I of the Amended Notice of Specific Charges filed in this cause alleges that Respondent has violated School Board Rule 6Gx13-4-1.05, Petitioner's Drug-free Work Place Policy. Petitioner has met its burden of proof regarding this count.

35. The parties have stipulated that Respondent served under the contract between Petitioner and the American Federation of State, County and Municipal Employees, Local 1184. That contract calls for progressive discipline, that is, the degree of discipline shall be reasonably related to the seriousness of the conduct and the employee's record.

36. Section 231.3605, Florida Statutes, permits Petitioner to terminate the employment of an educational support employee for reasons stated in the collective bargaining agreement. Article IX of that contract recognizes Petitioner's drug-free work place policy. Both the contract and the policy require employees to be free from intoxication on school premises.

    Respondent repeatedly was intoxicated while on duty.

    
    

    Respondent's argument that he must be intoxicated sufficiently to meet the legal test for driving a vehicle while under the influence is not supported by either the contract or School Board Rule 6Gx13-4-1.05.

37. Count II of the Amended Notice of Specific Charges alleges that Respondent is guilty of abandonment of position and excessive absenteeism. Section 231.44, Florida Statutes, provides that any employee who is willfully absent from duty without leave shall be subject to termination. Article XI of the collective bargaining agreement provides that an unauthorized absence of three consecutive work days shall be evidence of abandonment of position and that unauthorized absences totaling

    10 or more work days during the previous 12-month period shall be evidence of excessive absenteeism. The contract provides that either condition may be grounds for termination. Petitioner has proven that Respondent is guilty of both abandonment of position by being absent without authorization for more than three consecutive work days and excessive absenteeism by being absent without authorization for more than 10 work days during the previous 12-month period.

38. Count III of the Amended Notice of Specific Charges alleges that Respondent is guilty of deficient performance of his work responsibilities in violation of Article XI of the collective bargaining agreement. Petitioner has met its burden of proof. Respondent was repeatedly absent without authorization

    causing his work area to be cleaned inadequately and causing others to perform his job duties for him. He was also given warnings for his failure to clean properly and was caught twice sleeping on the job, once being missing from the work site, and once fighting with a woman while he was on duty. While he was busy fighting, sleeping, and being absent from the work site, he was not performing his work responsibilities.

39. Count IV of the Amended Notice of Specific Charges alleges that Respondent is guilty of conduct unbecoming a School Board employee. School Board Rule 6Gx13-4A-1.21 requires all employees to conduct themselves in a manner that reflects credit upon themselves and the school system. Further, School Board Rule 6Gx13-4-1.08 forbids threatening behavior by anyone on School Board property against any employee. Petitioner has met its burden of proving Respondent guilty of violating these Rules in his interaction with Parker on October 2, 1996.

40. Petitioner's proof of Respondent's violations of School Board Rules constitutes just cause for dismissal of Respondent. Respondent has previously been warned, reprimanded, and demoted. At the last conference-for-the-record, Respondent was given an opportunity to provide documentation that he was participating in an alcohol recovery program, and he failed to comply with that condition for his continued employment. Petitioner has properly applied progressive discipline but has failed to achieve improvement in Respondent's deficiencies with discipline less than dismissal.

41. Respondent argues that his participation in and completion of an alcohol recovery program after his supervisors recommended his dismissal should mitigate against any disciplinary action and that he should be returned to his position of employment with back pay and full benefits. While Respondent should be commended on his subsequent attempts to deal with any problems in his life, whatever attempts have been made subsequent to the recommendation for dismissal and subsequent to the School Board initiating this dismissal proceeding are irrelevant to the issue of whether the School Board had just cause to terminate Respondent at the time it did so. When the decision to terminate was made, Respondent had exhibited excessive absenteeism, abandonment of his position, repeated intoxication while on duty, non-performance of his job responsibilities, refusal to speak with one of his supervisors, and threatening behavior toward another. He was given an opportunity to provide documentation that he was participating in a program as a condition to continued employment, and he chose not to do so.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Amended Notice of Specific Charges filed in this cause and dismissing Respondent from his employment with Petitioner effective February 5, 1997.

DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998.

COPIES FURNISHED:

Heidi Shulman-Pereira, Esquire Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132-1308

Donald Appignani, Esquire Phillips, Levy & Rind, P.A.

3001 Ponce de Leon Boulevard, Suite 214 Coral Gables, Florida 33134

Roger C. Cuevas, Superintendent of Schools Dade County School Board

1450 Northeast Second Avenue, Suite 403

Miami, Florida 33132-1308

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: 97-000702

Orders for Case No: 97-000702