vs. ) Case No. 00-4191
Respondent. )
A formal hearing was conducted in this case on May 3, 2001, in Pensacola, Florida, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.
For Petitioner: Joseph L. Hammons, Esquire
Hammons & Whittaker, P.A.
For Respondent: Mary F. Aspros, Esquire
Meyer and Brooks, P.A. Post Office Box 1547
The issue is whether Petitioner had just cause to terminate Respondent's employment.
On or about September 19, 2000, Petitioner Escambia County School Board (Petitioner) terminated Respondent Thomas
Sinkfield's (Respondent) employment. Respondent requested a formal administrative hearing to contest the termination of his employment on September 27, 2000. Petitioner referred the case to the Division of Administrative Hearings on October 10, 2000.
Administrative Law Judge Harry L. Hooper issued a Notice of Hearing dated November 17, 2000. This notice scheduled the case for hearing on December 18, 2000.
On December 11, 2000, Petitioner filed a Motion to Dismiss.
On December 14, 2000, the parties filed a Joint Motion to Hold Hearing in Abeyance. On December 21, 2000, Judge Hooper issued an Order Granting Continuance and Placing Case in Abeyance.
On February 23, 2001, the parties filed a Motion to Set Hearing. On February 27, 2001, Judge Hooper issued a Notice of Hearing, scheduling the case for hearing on May 3, 2001. The Division of Administrative Hearings subsequently transferred the case to the undersigned.
During the hearing, Petitioner presented the testimony of five witnesses. Petitioner offered 15 exhibits, which were accepted into the record as evidence.
Respondent testified on his own behalf and presented the testimony of two additional witnesses. Respondent offered three exhibits, which were accepted into the record as evidence.
The Transcript of the proceeding was filed on May 29, 2001. Respondent filed his Proposed Recommended Order on May 31, 2001. Petitioner filed its Proposed Recommended Order on June 6, 2001.
At all times relevant to this proceeding, Respondent worked for Petitioner as a custodian at Petitioner's Longleaf Elementary School (Longleaf) in Pensacola, Florida. Respondent worked as a custodian at Longleaf for at least four years.
Longleaf provides instruction to students from kindergarten through the 5th grade. The school has approximately 750 students and 37 certified teachers. In total, approximately 75 employees work at the school, including administrative staff, support personnel such as clerk-typists, teacher assistants, bus drivers, kitchen staff, and custodians.
Longleaf has 35 classrooms. Five classrooms are located in each of five pods. The other classrooms are freestanding self-contained portables. In addition to the classrooms, Longleaf has numerous offices, halls, buildings, or structures including restrooms, kitchen facilities, and a cafeteria.
At all times relevant here, Longleaf's custodial staff consisted of five employees, including Respondent and Willie Walker, the custodial supervisor/head custodian. On a normal school day, the custodian designated as the day mate arrived at
the school at 7:00 a.m., to work an eight-hour shift. Respondent, Mr. Walker, and one other custodian began their shift around noon every day. Edward Jones, the fifth custodian, began his eight-hour shift at 3:00 p.m. Regardless of the time that the custodians began their shifts, the custodial team was responsible for cleaning 18,000 square feet of space per day.
At the beginning of each school year, the custodians received individual work assignments. Each custodian, including Mr. Walker, was assigned specific rooms and outside areas to keep clean on a daily basis. They were also given additional duties on a weekly, monthly, and annual basis. Each custodian had a full day of work everyday.
Occasionally, Petitioner will furnish a school with a substitute custodian when a regular custodian is absent. However, most of the time, substitute custodians are not available unless at least one-third of the staff is absent. Therefore, when only one custodian is absent, the custodial team has to take on additional work to cover the work assignments of the absent colleague. If two custodians are absent at the same time and no substitute is available, the remaining employees have to almost double their work schedule.
When one custodian is out of work for a number of successive days, other custodians will also take time off. When the custodians are required to take on additional work
assignments for long periods of time, they need time off to recoup from the extra work.
The principal and the head custodian at each school are the only employees that Petitioner hires for twelve months. The remaining custodians usually start to work about two weeks before the students begin a new school year. They work for two weeks after the students finish a school year. The school year begins in July of one year and ends in June of the next year.
When a school custodian requests a leave of absence for any reason, the school's principal must first approve or disapprove the request. The request form is then sent to Petitioner's human resource department. Next, the human resource department sends the request form to the school superintendent, who must approve or disapprove the requested leave. Petitioner, sitting as a collegial body, makes the final decision whether to approve or disapprove a request for leave of absence, with or without pay.
Dr. Joyce Payton has been principal of Longleaf since 1997. In March 1999, Dr. Payton had a counseling session with Respondent. During the meeting, Dr. Payton and Respondent discussed the following: (a) Respondent's failure to record the accurate sign-in time when he arrived at work; and (b) Respondent's excessive tardiness.
In June 1999, Respondent expressed his desire to transfer to another school because he could not get along with Mr. Walker. However, Respondent never submitted a formal request for a transfer to posted openings at other schools.
In the summer of 1999, Respondent was arrested and charged with domestic battery. Respondent was placed on one year of probation with a $45 per month supervision fee. He was also required to complete 24 domestic violence classes at the cost of $15 per class.
On August 9, 1999, Dr. Payton informed Respondent that all annual leave had to be approved by her in advance. She also stated that she would not approve any more sick leave for Respondent unless he called before 12:30 p.m., or furnished a doctor's note.
Respondent was absent for 10 of the first 33 working days for the 1999-2000 school year. These absences took place between July 19, 1999, and September 1, 1999. Dr. Payton did not approve Petitioner's sick leave request form for three of these days, August 10-12, 1999, because he did not have a note containing a doctor's signature.
The emergency room discharge instructions dated August 10, 1999, which was attached to Respondent's sick leave request form, states that Respondent should rest and avoid strenuous activity for the balance of that day. This discharge
notice was not signed by a doctor and did not explain Respondent's absence on August 11 and 12, 1999.
On September 1, 1999, Respondent was in an automobile accident. Between September 2, 1999, and November 30, 1999, Petitioner was out of work on approved sick leave for a total of
52 workdays. The doctor released Respondent to return to work with no restrictions on December 1, 1999.
On January 3, 2000, Respondent requested sick leave for two hours on January 3, 2000, and for all day on January 4 and 5, 2000. The record does not contain a doctor's note to explain this absence. Respondent was absent even though
Dr. Payton did not approve this leave request.
On May 22, 2000, Dr. Payton meet with Respondent to assess his performance for the 1999-2000 school year. The rating form indicates that Respondent met the requirements of his job. However, the form contains the following comment by Dr. Payton:
Mr. Sinkfield was out a total of 97 days this year. Fifty-two of these days were a result of a car accident. We have talked about the significance of his time at work improving next year.
Respondent signed this document, indicating that he had an opportunity to discuss the assessment with his employer.
In July 2000, Respondent was arrested for violation of probation on grounds that he had not completed all of the
required domestic violence classes. He was allowed five days to settle his affairs before turning himself in on July 14, 2000.
For several days, Respondent visited Longleaf in an effort to notify Dr. Payton about his impending incarceration. No one was in the school office during these visits.
On July 14, 2000, Respondent's mother drove him to Longleaf to see if Dr. Payton was there. Finding no one at the school, Respondent's mother drove him to Petitioner's headquarters where Respondent spoke to Ms. Ella Sims, Petitioner's Assistant Superintendent for Human Resources.
Respondent explained to Ms. Sims that he was going to be incarcerated and needed to request a leave of absence.
Ms. Sims informed Respondent that he needed Dr. Payton's approval for a leave of absence. She did not give Respondent a leave of absence request form.
Respondent's mother then drove him to his probation officer so that he could turn himself in. He was jailed without bond.
Inmates at the Escambia County Jail are permitted to make outside telephone calls. However, inmates may only call numbers that they write on a list at the time they are booked. Inmates may add telephone numbers to this list only once every six weeks.
The inmate telephone system is a fully automated system. Each completed local call costs one dollar. A call is completed when a person, answering machine, or other electronic device answers the call. Inmates may attempt up to ten local calls per day. Indigent inmates are allowed to make one completed telephone call every seven days. Inmates may make telephone calls with the assistance of a counselor or chaplain in certain verifiable emergency situations such as the death of a family member.
When taken into custody, Respondent listed the telephone numbers of his family. He also included the telephone number of Longleaf.
While in custody, Respondent successfully made telephone calls to his family. He was unsuccessful in completing a call to Dr. Payton at Longleaf. He could not get the counselor or chaplain to help him call the school.
During the summer of 2000, Longleaf changed its telephone number. A person dialing the old number would get a recording announcing the new number. For some unexplained reason, Longleaf's change-of-number recording did not play when Respondent called the school using the old number. Respondent was unable to complete a telephone call to the school even when he amended his telephone list to include the school's new number.
Because he was incarcerated, Respondent did not report to work on July 17, 2000, as required for the 2000-2001 school year. Respondent's mother called Dr. Payton that day to inform her that Respondent was in jail and would not report to work until at least September 2, 2001. Dr. Payton told Respondent's mother to have Respondent call the school from jail.
Dr. Payton did not receive a telephone call from Respondent. She did not authorize leave for Respondent from July 17, 2001, forward in time. Instead, Dr. Payton decided to seek termination of Respondent's job.
Respondent's mother visited Longleaf early in August of 2000. While she was at the school, Respondent's mother told Dr. Payton that Respondent could not call the school from jail. After talking to Respondent's probation officer, Dr. Payton told Respondent's mother that Respondent could call the school from the jail and that he needed to do so personally.
Dr. Payton sent Respondent a memorandum dated
August 4, 2000. The memo advised Respondent that disciplinary action was being considered due to his unauthorized absence and/or his excessive absence. Specifically, the memo states as follows:
You failed to return as scheduled for further employment July 17, 2000. You did not notify your employer that you would not be at work as scheduled. You have been absent without authorization or approved
leave since that date. You have previously been counseled regarding excessive absences.
The memo gave Respondent the right to appear with a representative for a meeting in Dr. Payton's office on August 8, 2000. Petitioner hand-delivered the memo to Respondent.
On or about August 10, 2000, Respondent sent
Dr. Payton a letter. The letter states that Respondent expected to be in jail until he went back to court on September 1, 2000. Respondent requested Dr. Payton to keep his job if he could not get out of jail. Respondent did not request Dr. Payton to furnish him with leave-of-absence request forms.
By letter dated August 29, 2000, Dr. Payton informed Respondent that a disciplinary action was being considered because of his unauthorized absence and/or his excessive absence. The letter reviewed the history of Respondent's absences for the 1999-2000 school year. The letter also stated that Respondent failed to notify Dr. Payton at home or at work that he would not be at work on July 17, 2000. Finally, the letter advised Respondent that there would be a meeting in
Dr. Payton's office on September 1, 2000, and that Petitioner and his association representative had a right to attend the meeting. Petitioner hand-delivered this letter to Respondent.
Petitioner sent Respondent a Notice of Disciplinary Action dated September 6, 2000, advising him of proposed action
to dismiss him effective September 20, 2000. The proposed dismissal was based on the following: (a) excessive absences in the 1999-2000 school year; and (b) failing to report for work on July 17, 2000, and being absent without authorization since that time.
On or about September 11, 2000, Respondent wrote a letter directed to Ms. Sims. In the letter, Respondent sought to postpone the consideration of his termination by Petitioner on September 19, 2000.
On September 19, 2000, Petitioner approved Dr. Payton's recommendation to terminate Respondent's
employment. Respondent was incarcerated until September 24, 2000.
In extreme cases in which an employee is physically incapable of requesting a leave of absence in person, such as when an employee is in the hospital or in jail awaiting trial, Petitioner's department of human resources will, upon proper request, make accommodations to provide the employee with the necessary forms to request a leave of absence. In this case, Respondent was serving a sentence previously imposed; he was not awaiting trial. According to Petitioner's practice and procedure, being absent from work because of incarceration does not constitute an excused absence.
If Respondent had asked Dr. Payton after he was incarcerated for a leave-of-absence form, she would have directed him to Petitioner's human resource department. She would have made this referral because she had already made the determination to seek termination of Respondent's employment. Under the facts here, Petitioner had just cause to terminate Respondent's employment even if he had timely applied for a leave of absence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has met its burden of proving by a preponderance of the evidence that it had just cause to terminate Respondent's employment. Dileo V. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
Respondent was absent without approved leave for six days during the 1999-2000 school year. He did not report for work on July 17, 2000, to begin the 2000-2001 school because he was incarcerated until September 24, 2000. Petitioner would have had just cause to terminate Respondent's employment for unauthorized and/or excessive absences even if Respondent had filed a timely request for leave of absence on July 17, 2000.
That Petitioner enter a final order terminating Respondent's employment.
DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2001.
Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08
Mr. Jim Paul, Superintendent Escambia County School Board
Joseph L. Hammons, Esquire Hammons & Whittaker, P.A.
Mary F. Aspros, Esquire Meyer and Brooks, P.A. Post Office Box 1547
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.
