STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PALM BEACH COUNTY )
SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 00-4237
)
MIGUEL NAVARRO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on March 27 and 28, 2001, in West Palm Beach, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Virginia Tanner-Otts, Esquire
Palm Beach County School Board 3318 Forest Hill Road, Suite C-302
West Palm Beach, Florida 33406-5813
For Respondent: Miguel Navarro, pro se
2504 10th Avenue, Apartment 201-D Lake Worth, Florida 33461
STATEMENT OF THE ISSUE
Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 16, 2000, and, if so, the discipline that should be imposed.
PRELIMINARY STATEMENT
In a document entitled "Notice of Suspension and Recommendation for Termination from Employment," dated September 8, 2000, the Superintendent of the Palm Beach County public school system, Dr. H. Benjamin Marlin, notified Miguel Navarro that he intended to recommend to the School Board of Palm Beach County ("School Board") at its September 20, 2000, meeting that Mr. Navarro be suspended from his employment as a custodian and that his employment with the School Board be terminated. The School Board followed Dr. Marlin's recommendation at its September 20, 2000, meeting, and
Mr. Navarro timely requested an administrative hearing. The School Board transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The School Board included in its transmittal an Administrative Complaint dated October 16, 2000.
In the Administrative Complaint, Dr. Marlin alleges that the School Board had just cause to suspend and terminate
Mr. Navarro from his employment with the School Board pursuant to Sections 231.3605(2)(b) and 231.44, Florida Statutes; Article 17, Paragraph 7, and Article 22, Paragraph 8, of the Collective Bargaining Agreement between the School District and The National Conference of Firemen & Oilers; and School Board Policy and Directive 3.27. The School Board specifically
charges that Mr. Navarro was willfully absent from duty without leave, failed to report off from work, missed an excessive amount of work, and insubordinately refused to report as directed for light duty work. Although the School Board refers in the Administrative Complaint to a letter of reprimand dated March 7, 2000, and to an unsatisfactory annual evaluation in May 2000, the violations with which Mr. Navarro is charged are based primarily on his failure to report for a light-duty work assignment beginning June 9, 2000.
A hearing was held pursuant to notice on March 27 and 28, 2001. At the hearing, the School Board presented the testimony of the following witnesses: Alvin Dunn, Annette Gonzalez, Agartha Gragg, Rosa McIntyre, Linda Meyer, Raymond T. Miller, Yunia DeMicco, Sheila Riczko, W. Paul LaChance, and James B. Phillips, M.D. Petitioner's Exhibits 1 through 12, 14 through
15, 18 through 32, 34, 38, 40 through 52, 54, 55, 62 through 65, 68, 70, and 72 were offered and received into evidence.1
Mr. Navarro testified in his own behalf, and Respondent's Exhibits 1 through 10 were offered and received into evidence. At the School Board's request, official recognition was taken of Sections 230.22; 230.23; 230.33; 230.23005; 231.3605; and
, Florida Statutes.
The two-volume transcript of the proceedings was filed with the Division of Administrative Hearings on May 9, 2001, and the
parties timely filed proposed findings of fact and conclusions of law, which have been considered in preparing this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida. Article IX, Florida Constitution;
Section 230.03, Florida Statutes.
Mr. Navarro began working for the School Board as a custodian in July 1996. He was assigned full-time to the custodial staff at C.O. Taylor/Kirklane Elementary School ("Taylor/Kirklane Elementary") during the 1998-1999 and 1999- 2000 school years. The terms of Mr. Navarro's employment are governed by the provisions of the Agreement between The School District of Palm Beach County, Florida, and National Conference of Firemen & Oilers, Local 1227, July 1, 1999 - June 30, 2002 ("Union Contract").
On January 22, 1999, Mr. Navarro suffered an injury to his back while he was lifting several tables to put them on the stage in the school cafeteria; the tables slipped, and
Mr. Navarro fell. Mr. Navarro experienced a sharp pain in his back that almost kept him from walking, but he finished his shift that night, which was a Friday night.2
Because of the pain in his back, Mr. Navarro could not get out of bed on Saturday or Sunday, and, on Monday, he went to see his personal doctor, J.J. Bogani, M.D. Dr. Bogani examined Mr. Navarro and prescribed pain medication. Dr. Bogani advised Mr. Navarro to file a workers' compensation claim with the School Board, which he did.
As a result of his workers' compensation claim,
Mr. Navarro was referred to a Dr. Goldberg, who examined and treated him on February 1, 1999. At the times material to this proceeding, Dr. Goldberg was one of the physicians who acted as a primary physician, or "gatekeeper," for employees of the School Board who were injured on the job and whose care was covered by workers' compensation insurance. Dr. Goldberg diagnosed Mr. Navarro's injury as lumbar strain. Mr. Navarro saw Dr. Goldberg again on February 3, 1999, and Dr. Goldberg prescribed a back belt for Mr. Navarro.
On Mr. Navarro's third visit on February 8, 1999,
Dr. Goldberg found that Mr. Navarro had reached maximum medical improvement with respect to the lumbar strain and that the lumbar strain had been resolved. Dr. Goldberg released
Mr. Navarro to full-duty work, with an impairment rating of zero percent.
Dr. Goldberg examined Mr. Navarro again on March 2, 1999, and Dr. Goldberg reaffirmed his diagnosis of lumbar strain, prescribed physical therapy for Mr. Navarro three times per week for two weeks and returned Mr. Navarro to full-duty work as of March 3, 1999. Dr. Goldberg did not examine
Mr. Navarro subsequent to March 2, 1999.
In early April 1999, Miguel Mendez, an attorney specializing in workers' compensation, contacted the company that administers the School Board's workers' compensation program on Mr. Navarro's behalf and requested that Mr. Navarro be evaluated by an orthopedist, Dr. Merrill Reuter. The administrator responded in a letter dated April 7, 1999, that Dr. Goldberg declined to recommend an orthopedic evaluation. Mr. Mendez was advised that Mr. Navarro could request a new gatekeeper physician, and a list of approved gatekeeper physicians was included with the letter.
Mr. Navarro did not select a new gatekeeper physician until June 2000, even though he continued to have severe back pain. Dr. Bogani, Mr. Navarro's personal physician, treated him for his back problems from March 1999 until June 2000.
Agartha Gragg was appointed principal at Taylor/Kirklane Elementary in July 1999, and she was apparently
suspicious of Mr. Navarro's work attendance from the beginning of her tenure.3 One of the first changes she made as principal was moving the custodians' sign-in/sign-out log to her office so she could keep track of the comings and goings of the custodial staff.
The School Board's personnel records show that
Mr. Navarro was absent on annual leave, sick leave, sick leave charged to annual leave, or sick leave charged to "without pay,"4 on January 5 through 14, 18 through 21, and 27 and 28, 2000.5 On January 27, 2000, Dr. Bogani wrote a note on a page of his prescription pad certifying that Mr. Navarro was not able to return to work until January 31, 2000, and that Mr. Navarro needed to be restricted for two weeks, with no heavy lifting or bending.
The School Board's records reflect that Mr. Navarro was absent on leave "without pay," sick leave charged to annual leave, or sick leave charged to "without pay" on February 4, 7,
through 18, and 21, 2000. Dr. Bogani gave Mr. Navarro a certification dated February 7, 2000, indicating that he could return to work on February 8, 2000.
In February 2000, Ms. Gragg received several complaints about Mr. Navarro's job performance from members of the teaching staff. The complaints involved Mr. Navarro's failure to keep his assigned areas clean, especially his failure
to keep the floors clean. At the time, Mr. Navarro was working in the area that included the kindergarten classrooms, and one kindergarten teacher wrote Ms. Gragg a note praising the substitute custodian and advising Ms. Gragg that her area was much cleaner when Mr. Navarro was absent.
The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, or sick leave charged to "without pay" on March 6, 7, and 13 through 17, 2000, except for one hour on March 13, 2000.
Dr. Bogani gave Mr. Navarro a certification dated March 7, 2000, indicating that he could return to work on March 8, 2000. On March 13, 2000, Dr. Bogani gave Mr. Navarro a certification stating that Mr. Navarro would not be able to work during the week of March 13, 2000 and that he would be unable to lift more than 15 pounds on his return to work.
In a letter dated March 7, 2000, Ms. Gragg directed Mr. Navarro to attend a meeting with her on March 13, 2000, to discuss his excessive absences and his unsatisfactory job performance. Ms. Gragg advised Mr. Navarro in the letter that he could bring a representative with him and that the meeting could result in disciplinary action. A note at the bottom of the letter states that Ms. Gragg's secretary, Rosa McIntyre, read the letter to Mr. Navarro in Spanish.
Mr. Navarro attended the meeting with Lourdes Martinez, a paralegal employed in Mr. Mendez's office, as his representative; the other attendees were Ms. Gragg and
Ms. McIntyre. The meeting was summarized in a letter to Mr. Navarro dated March 13, 2000, entitled "Verbal Reprimand With a Written Notation," in which Ms. Gragg noted that
Mr. Navarro explained that both his absences and his poor job performance were due to medical reasons. The letter reflects that, at the meeting, Ms. Gragg directed Mr. Navarro to provide medical certification from his doctor for any future absences; directed Mr. Navarro to review cleaning procedures with the Interim Head Custodian at Taylor/Kirklane Elementary; recommended that Mr. Navarro contact Ernie Camerino's6 office to discuss leave options for which he might be eligible; recommended that Mr. Navarro contact the School Board's Employee Benefits and Risk Management office to discuss medical disability options that might be available to him; advised
Mr. Navarro that his job performance would be reviewed on April 18, 2000; and, finally, advised Mr. Navarro that, if he
failed to follow the directives and recommendations set forth in the letter, he would be subject to further discipline, including termination of his employment. The March 13, 2000, letter was prepared in both an English and a Spanish version and was sent to Mr. Navarro by certified mail.
Ms. Gragg also noted in the March 13, 2000, reprimand letter that she might change the area Mr. Navarro was assigned to clean. Ms. Gragg did change Mr. Navarro's assignment, but, according to Mr. Navarro, the change was for the worse because he was required to carry a vacuum cleaner on his back and to vacuum carpeted floors, both of which put a lot of strain on his back.
The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, and sick leave charged to "without pay" on April 5 through 7 and 28, 2000, and for four hours on April 27. On May 1, 2000,
Dr. Bogani certified that Mr. Navarro was under his care from April 28 through May 2, 2000, and noted that his office should be called if there were any questions.
On April 17, 2000, Ms. Gragg received a complaint from a member of the teaching staff that Mr. Navarro had not vacuumed the carpet in her classroom the previous week. A copy of the complaint was provided to Mr. Navarro, and he went to
Ms. Gragg's office on April 17, 2000, to discuss the complaint.
In a letter dated April 17, 2000, Ms. Gragg requested that Mr. Navarro meet with her to discuss his job performance and any concerns he might have regarding his job. This letter was prepared in both an English version and a Spanish version, and Mr. Navarro signed the acknowledgement that he had received
the letter on April 17. Mr. Navarro did not, however, meet with Ms. Gragg during the month of April 2000.7
The School Board's records reflect that Mr. Navarro was absent on sick leave charged to annual leave or sick leave charged to "without pay" on May 1, 2, 11, 12, 15 through 19, 26, and 30, 2000; Mr. Navarro was also absent for five hours on both May 22 and 25, 2000. On May 11, 2000, Dr. Bogani provided certification that Mr. Navarro would be out of work on May 11 and 12, 2000, "for health reasons," noting that his office should be called if there were any questions. On May 15, 2000, Dr. Bogani provided certification that Mr. Navarro would not be able to work on May 15 through 19, 2000, because of "severe muscle spasm in lumbar spine," noting that Mr. Navarro would not be able to vacuum for at least a month. On May 26, 2000,
Dr. Bogani provided certification that Mr. Navarro had been under his care for back problems and that Mr. Navarro would be under his care from May 26 through 30, 2000.
In a letter dated May 11, 2000, Ms. Gragg notified Mr. Navarro that he was to attend a meeting on May 17, 2000, to discuss allegations of excessive absences and to review his job performance, that he could bring a representative to the meeting, and that the meeting could result in disciplinary action being taken against him. The letter was prepared in both an English and a Spanish version.
Meanwhile, Ms. Gragg completed Mr. Navarro's annual evaluation in which she gave him an overall unsatisfactory rating and rated his performance unsatisfactory in several categories, including attendance. Ms. Gragg set forth
Mr. Navarro's deficiencies on a separate sheet attached to the annual evaluation, as follows:
Job Knowledge
You failed to effectively clean the "gang" bathrooms in the main building May 15-
May 23, 2000. [Correct dates are April 15-
April 23, 2000][8]
You failed to effectively clean the floors in Bldg 200 on March 23, April 17-May 25, 2000. [Correct dates are April 17-April 25, 2000, see endnote 9.]
Self Management/Self Motivation
You did not complete assigned duties in a timely manner. Restrooms in the main building were not cleaned on May 15-23, 2000. [Correct dates are April 15-April 23, 2000, see endnote 9.]
Interpersonal effectiveness
You failed to complete your assigned duties, thus causing your co-workers to assume extra responsibilities. Mr. Angel Rivera, Head Custodian, was required to clean you assigned areas on March 23, April 17-May 25, 2000. [Correct dates are April 15-April 25, 2000, see endnote 9].
Ms. Gragg also noted on the annual evaluation form that
Mr. Navarro had been absent 53 days during the 1999-2000 school
year and that she had previously recommended that Mr. Navarro inquire about his eligibility for appropriate leave.
The evaluation form was signed by Ms. Gragg and dated May 18, 2000, and, at some point, Ms. Gragg discussed the evaluation and the specific deficiencies and improvement strategies with Mr. Navarro. A note dated May 19, 2000, signed by Ms. McIntyre, indicates that the evaluation was translated into Spanish for Mr. Navarro and that Mr. Navarro refused to sign the form.
In a letter dated May 23, 2000, Ms. Gragg issued Mr. Navarro a written reprimand for his failure "to report to work in accordance with published rules and the duties and responsibilities" of his job. Specifically, Ms. Gragg noted
that Mr. Navarro had been put on notice on March 20, 2000, that he was to report to work on a regular basis; that he had been absent 14.5 days since March 20, 2000; that he had been absent a total of 53 days during the school year; and that he was absent on May 18 and 19, 2000, but did not call to inform her office of his absence. Mr. Gragg advised Mr. Navarro in this letter that, if he engaged in similar conduct in the future, he would be subject to further discipline, including termination of his employment. The letter was prepared in both an English and a Spanish version. It is not clear from the letter whether
Ms. Gragg was reprimanding Mr. Navarro for excessive absences or
for failing to call to inform her office of his absences on May 18 and 19, 2000.
Ms. Gragg was advised in a letter from a teacher dated May 25, 2000, that Mr. Navarro had failed to empty the garbage can in her classroom on May 24, 2000, and Ms. Gragg provided a copy of the letter to Mr. Navarro.
Throughout March, April, and May 2000, Mr. Navarro was experiencing problems with his back, and he was able to work only when he took pain medication, which made him feel drowsy and lethargic. Mr. Navarro visited Dr. Bogani often as a result of the pain, and he always provided to Ms. Gragg Dr. Bogani's medical certifications for his absences.9 Mr. Navarro was also becoming increasingly distraught because of what he considered Ms. Gragg's unfair criticisms of his job performance and her apparent inability to understand the extent of his medical problems. He was particularly affected by his unsatisfactory annual evaluation because he had received satisfactory evaluations since he began working for the School Board.
On June 5, 2000, Mr. Mendez, the attorney handling Mr. Navarro's workers' compensation claim, contacted the School Board's workers' compensation administrator on Mr. Navarro's behalf and requested that Dr. James B. Phillips be assigned as Mr. Navarro's gatekeeper. An appointment was arranged for
Mr. Navarro with Dr. Phillips for June 8, 2000.
Mr. Navarro advised Ms. McIntyre that he would be absent on June 8, 2000, for a doctor's appointment.10
Ms. McIntyre asked that Mr. Navarro complete a "Leave/Temporary Duty Elsewhere" form requesting leave for June 8, 2000, and he refused; this form is a School Board form that must be completed before an employee can be approved for any type of leave.
Ms. Gragg sent Mr. Navarro a memorandum dated June 7, 2000, in which she directed him to submit a completed leave form to her "today" and advised him that failure to do so would be considered insubordination and would subject him to discipline. Mr. Navarro submitted a leave form dated June 7, 2000, but he did not indicate on the form the type of leave he requested or the amount of time he would be absent. Ms. Gragg disapproved the request on June 7, 2000, with the notation "Incomplete TDE." Mr. Navarro gave no explanation for his failure to fill out the leave request form completely.
Dr. Phillips first saw Mr. Navarro on June 8, 2000, and Mr. Navarro explained to Dr. Phillips that he had injured his back on the job on January 22, 1999. Dr. Phillips did several tests and diagnosed Mr. Navarro as having a "lumbosacral sprain, chronic," but also noted that Mr. Navarro most likely magnified the symptoms of his back injury. Dr. Phillips also recommended that Mr. Navarro have a MRI.
Dr. Phillips completed a Workers' Compensation Work Status Report in which he indicated that Mr. Navarro could do light-duty work with the restrictions that he was not to use a vacuum cleaner or to lift more than 15 pounds. Dr. Phillips directed Mr. Navarro to give the form to his supervisor at work.
On June 9, 2000, Mr. Navarro took this form to Ms. Gragg's office at Taylor/Kirklane Elementary. At approximately 10:15 a.m., Ms. McIntyre called Linda Meyer, a
claims technician for the School Board's workers' compensation program, and advised her that Dr. Phillips had placed
Mr. Navarro on light-duty restrictions and that there were no such assignments available at the school. One of Ms. Meyer's responsibilities is to find light-duty placements for School Board employees injured on the job who cannot return to their jobs because of work restrictions imposed by a doctor participating in the School Board's workers' compensation program. Ms. Meyer told Ms. McIntyre to send Mr. Navarro to her office immediately, and Ms. Meyer asked Ms. McIntyre to send
Mr. Navarro's work restrictions to her by facsimile.
Ms. Meyer found a light duty job for Mr. Navarro that met his work restrictions. Mr. Navarro was to work with the medical records clerk in the School Board's Risk Management office, Sheila Rick; the job required Mr. Navarro to sit at a table, take medical records out of files, count the documents,
and return them to the files. Ms. Riczko speaks fluent Spanish, and it would not have been necessary for Mr. Navarro to speak or read English to do this job. Dr. Phillips is of the opinion that Mr. Navarro would have had no physical problem doing this work.
When Mr. Navarro had not reported to her office by noon on June 9, 2000, Ms. Meyer telephoned Ms. McIntyre to confirm that Mr. Navarro had been told where to report for his assignment; Ms. McIntyre told Ms. Meyer that Mr. Navarro had left Taylor/Kirklane Elementary at approximately 10:45 a.m. Shortly after noon, Ms. Meyer received a telephone call from Carolyn Killings, Mr. Navarro's union representative, asking about Mr. Navarro's light-duty work assignment. Ms. Killings told Ms. Meyer that Mr. Navarro was in her office; Ms. Meyer told Ms. Killings to tell Mr. Navarro that she had a light-duty work assignment for him and that he was to report to her office.
Mr. Navarro did not report to Ms. Meyer's office on June 9, 2000. Ms. Meyer prepared a letter advising Mr. Navarro that he was to report for his temporary light-duty work assignment, and the letter was prepared in both an English version and a Spanish version. In the letter, Ms. Meyer told Mr. Navarro where to report and confirmed that the assignment satisfied the restrictions imposed by Dr. Phillips on June 8, 2000, that he not lift anything weighing more that 15 pounds and
that he do no vacuuming. Ms. Meyer further advised Mr. Navarro in this letter that failure to report for this assignment might result in termination of his workers' compensation benefits and in disciplinary action by the School Board, including termination of employment. Ms. Meyer also attached a light-duty sign-in sheet and directed Mr. Navarro to complete the sheet each day.
Also on June 9, 2000, after Mr. Navarro had presented to Ms. McIntyre the work restrictions imposed on June 8, 2000, by Dr. Phillips, Ms. Gragg prepared a Written Letter of Reprimand for actions involving repeated insubordination. Specifically, Ms. Gragg reprimanded Mr. Navarro because he left campus at his regular break time of 10:00 a.m. but did not return until 10:45 a.m., with a sandwich.11 Ms. Gragg noted in the letter that she had questioned Mr. Navarro as to why he returned to campus past the end of his break time and how he intended to eat and do his work at the same time. According to the letter, Mr. Navarro explained that he was hungry and had to eat. Ms. Gragg referred in the letter to Mr. Navarro's failure to heed her warning on June 8, 2000, to correct his actions, and she advised Mr. Navarro that she was referring the matter for a "District review" with respect to the next step in the disciplinary process.12 A handwritten note at the bottom of the
letter states that Ms. McIntyre "verbally interpreted" the letter into Spanish for Mr. Navarro.
Ms. Gragg followed up her June 9, 2000, Written Reprimand with a letter dated June 12, 2000, to the Director of the School Board's Employee Relations Department. In the letter, Ms. Gragg stated: "I have issued a Written Reprimand and the employee has repeated the misconduct. Therefore, I am requesting a District review for the purpose of determining the next step in the discipline process." Ms. Gragg also noted in the June 12, 2000, letter that Mr. Navarro had not reported to the Risk Management office for light duty or to Taylor/Kirklane Elementary for regular duty.
Ms. Gragg also telephoned a complaint regarding Mr. Navarro to the School Board's Office of Professional
Standards on June 13, 2000. Ms. Gragg charged Mr. Navarro with unauthorized absence and insubordination, based specifically on his refusal on June 7, 2000, to complete a leave form for his doctor's appointment on June 8, 2000, and on Mr. Navarro's failure to respond to her directive on June 9, 2000, that he report to Ms. Meyer's office for a light-duty work assignment.
In a letter dated June 15, 2000, Ms. Gragg advised Mr. Navarro that she was concerned that he had not reported to Ms. Meyer's office for his light-duty work assignment or to Taylor/Kirklane Elementary. She asked that Mr. Navarro call her
office regarding these absences. This letter was prepared in both an English version and a Spanish version.
On June 15, 2000, Ms. Meyer asked Ms. Riczko to telephone Mr. Navarro's home to ask why he had not reported for his light-duty assignment. Ms. Riczko spoke with Mrs. Navarro, who said that Mr. Navarro would be in on Monday, June 19, 2000. On June 19, 2000, Mrs. Navarro telephoned Ms. Riczko and told here that Mr. Navarro had an appointment with his attorney and would not be reporting for his work assignment that day.
Mr. Navarro did, however, report to Ms. Meyer's office late in the day on June 19, 2000. Mr. Navarro told Ms. Meyer that he could not work because of the medication he was taking. Ms. Meyer advised Mr. Navarro that he was to have reported for his light-duty work assignment on June 9, 2000, and that, by refusing the light-duty work, he was jeopardizing his workers' compensation benefits. Ms. Meyer suggested that Mr. Navarro talk to someone in Ernie Camerino's office about taking an extended medical leave. Mr. Camerino's office is responsible for processing retirements and leaves of absence for the School Board. Mr. Navarro picked up a set of leave forms from
Mr. Camerino's office on June 19, 2000.
On June 20, 1999, Mr. Navarro visited Dr. Phillips' office and requested that Dr. Phillips authorize him to take two
weeks off of work. Dr. Phillips refused and again advised Mr. Navarro that he could return to light-duty work.
Mr. Navarro submitted a Request for Leave of Absence Without Pay to Ms. Gragg on June 22, 2000, in which he asked for personal leave from June 9, 2000, to July 9, 2000. Ms. Gragg denied Mr. Navarro's request in a letter dated June 22, 2000, which was prepared in both an English and a Spanish version.
The reasons given by Ms. Gragg for her refusal to approve
Mr. Navarro's leave request were as follows: (1) Mr. Navarro did not request the leave in advance; (2) the leave request form was submitted on June 22, 2000, for leave extending from June 9, 2000, to July 9, 2000, and she could not backdate a personal leave request; and (3) Mr. Navarro did not discuss or provide proper documentation on his leave form. Finally, in the
June 22, 2000, letter, Ms. Gragg directed Mr. Navarro to report for work on June 26, 2000.
Mr. Navarro wrote a letter to Ms. Gragg dated July 26, 2000, in which he explained that he requested personal leave because he did not feel emotionally stable as a result of his problems and that his personal doctor, Dr. Bogani, had given him documents that showed he approved the leave. Mr. Navarro also advised Ms. Gragg that he was scheduled to have an MRI on
June 28, 2000,13 and would receive treatment for his back, depending on the results of the test. Mr. Navarro reminded
Ms. Gragg that she had prohibited him from bringing his medication to school and that it was the only medication he took, and that it helped him work "almost normal." The contents of this letter had no effect on Ms. Gragg's decision to deny Mr. Navarro's request for leave without pay.
Mr. Navarro's MRI was completed on July 9, 2000, and, on July 10, 2000, Dr. Phillips went over the results with
Mr. Navarro. The MRI showed that Mr. Navarro had a disc herniation at L5-S1, which displaced the S1 nerve posteriorally, with severe right foraminal narrowing. In Dr. Phillips' opinion, Mr. Navarro had a serious problem with his back, and he modified Mr. Navarro's work restrictions to provide that he could not lift anything weighing more than 10 pounds.
In a letter dated July 10, 2000, sent to Mr. Navarro by certified mail and in both an English and a Spanish version, Ms. Meyer noted that he had not yet reported for his light-duty work assignment, and she reiterated the penalties that could be imposed for his failure to report. On July 14, 2000, Ms. Meyer sent another letter to Mr. Navarro, by certified mail and in both an English version and a Spanish version, advising him that he had been scheduled to report for his light-duty work assignment on June 9, 2000, that he had not done so, and that the missed days would not be approved as related to his workers'
compensation claim. Ms. Meyer again urged Mr. Navarro to report for work immediately.
Mrs. Navarro telephoned Ms. Meyer's office on July 19, 2000, and spoke with Ms. Riczko about Mr. Navarro's light-duty work assignment. Ms. Riczko told Mrs. Navarro that Mr. Navarro must report to Ms. Meyer's office the next morning at 8:00 a.m. to start his work assignment. Mrs. Navarro said that she would tell her husband.
Mr. Navarro reported to Ms. Meyer's office at 8:45 a.m. on July 20, 2000; his wife accompanied him.
Mr. Navarro told Ms. Meyer and Ms. Riczko, who was acting as interpreter, that he was not able to work because he was taking pills that made him very lethargic and sleepy. He said that he intended to call Dr. Phillips and ask for a different type of pain medication. Ms. Meyer advised Mr. Navarro that it might be best for him to ask for a leave of absence; Ms. Meyer reiterated that he must report for his light-duty assignment if he did not get approved for a leave of absence.
Mr. Navarro was told to report at 8:00 a.m. on July 24, 2000, for his light-duty work assignment. He
telephoned at 8:45 a.m. and advised Ms. Riczko that he had taken his wife to the hospital emergency room and needed to stay with her.
Ms. Riczko heard nothing further from Mr. Navarro, and he never reported to her office for the light-duty work assignment.
After reviewing the results of Mr. Navarro's MRI, Dr. Phillips had requested that Mr. Navarro be examined by a neurosurgeon, and, on August 16, 2000, Dr. Brodner examined Mr. Navarro. Dr. Brodner advised Mr. Navarro that he needed surgery on his back and that there was a 20-percent chance that the surgery would cause paralysis in his legs. As of the date of the hearing, Mr. Navarro had refused the surgery because of this risk.
Meanwhile, School Board personnel investigated the allegations made by Ms. Gragg in her telephoned complaint of June 13, 2000, and a report of the investigation was submitted to the School Board's Case Management Review Committee for a determination of probable cause. The committee found probable cause at a meeting held on July 23, 2000, and recommended that Mr. Navarro be terminated from his employment with the School Board.
Paul LaChance, the Director of the School Board's Office of Professional Standards, arranged to meet with
Mr. Navarro on August 15, 2000, in order to go over the investigation report and the committee's recommendation and to allow Mr. Navarro the opportunity to respond to the charges
against him. Mr. Navarro presented Mr. LaChance with a letter written in Spanish, which was later translated into English for Mr. LaChance, in which he offered his explanation for his absences and his version of the events leading up to Ms. Gragg's complaint and the events relating to his failure to report for his light-duty work assignment. Mr. LaChance reviewed
Mr. Navarro's letter and requested that Ms. Gragg respond to certain allegations against her that Mr. Navarro had included in the letter.
After reviewing Ms. Gragg's response to Mr. Navarro's letter, Mr. LaChance recommended that Mr. Navarro be suspended without pay and that his employment with the School Board be terminated. In a document entitled "Notice of Suspension and Recommendation for Termination of Employment," dated
September 8, 2000, and signed by Dr. Marlin, Mr. Navarro was notified that Dr. Marlin would recommend to the School Board that it terminate Mr. Navarro's employment at its September 20, 2000, meeting. The School Board approved Dr. Marlin's recommendation and immediately suspended Mr. Navarro without pay.
Mr. Navarro believed that he was not physically or emotionally able to do even light-duty work, and the School Board's records show that Mr. Navarro did not report for either regular work or his light-duty work assignment from June 9,
2000, through September 20, 2000, when he was suspended from his employment.
Summary
The evidence presented by the School Board is not sufficient to establish with the requisite degree of certainty that Mr. Navarro abused his sick leave privileges. The School Board did not present any evidence to establish that Mr. Navarro was absent for reasons other than medical reasons, and, indeed, the School Board classified Mr. Navarro's absences almost exclusively as sick leave, sick leave charged to annual leave, or sick leave charged to "without pay." There is no question that Mr. Navarro used his sick leave as he earned it, and
Ms. Gragg was justified when she directed Mr. Navarro in the March 13, 2000, Verbal Reprimand With a Written Notation to provide medical certifications for any future absences.
Mr. Navarro submitted such certifications from Dr. Bogani for most of his absences subsequent to March 13, 2000, although he did not provide medical certifications for his absences on April 5, 6, and 7, 2000; for 4 hours on April 27, 2000; or for five hours on May 22 and May 25, 2000. These lapses are not sufficient to support a finding that Mr. Navarro abused his sick leave privileges, and there is no evidence to establish that Ms. Gragg advised Mr. Navarro that the certifications were
insufficient or advised him that he had failed to provide the certifications timely.
The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Navarro was willfully absent from duty without leave from June 9, 2000, until September 20, 2000, when the School Board suspended him and termination proceedings were initiated. Ms. Meyer advised Mr. Navarro of his obligation to report or face possible disciplinary action in her letter dated June 9, 2000, which was sent to Mr. Navarro in both an English and a Spanish version. Mr. Navarro was repeatedly directed to report for work by Ms. Gragg and Ms. Meyer, both verbally and in writing, and he advised that his failure to report for his light-duty work assignment would jeopardize both his workers' compensation benefits and his employment with the School Board.
Credence is given to Mr. Navarro's belief that he was emotionally and physically unable to work subsequent to June 8, 2000, but he failed to explain why he did not apply for a leave of absence until June 22, 2000. Ms. Gragg had advised him to inquire about his eligibility for leave in her reprimand letter of March 13, 2000, and Ms. Meyer urged him to talk with
Mr. Camerino's office regarding a leave of absence on several occasions. Mr. Navarro did not apply for personal leave without pay until June 22, 2000, and he requested leave from June 9,
2000, through July 9, 2000. When Ms. Gragg denied the leave, Mr. Navarro did not file a grievance pursuant to the Union Contract, he simply did not report for work. Mr. Navarro was aware of the consequences of his failure to pursue his leave request or to report for work.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2000).
Section 230.23(5), Florida Statutes (1999), provides that a school board has the power to suspend and dismiss employees as follows:
(f) Suspension and dismissal and return to annual status.--Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed or returned to annual contract except as provided in chapter 231.
Section 231.3605, Florida Statutes (1999), deals with the employment status of educational support employees, and it provides in pertinent part:
As used in this section:
"Educational support employee" means any person employed by a district school system who is so employed as a teacher
aide, a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical
employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or school board pursuant to s.
231.1725. . . .
* * *
(2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by school board rule in cases where a collective bargaining agreement does not exist.
Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year, unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist, or reduces the number of employees on a districtwide basis for financial reasons.
Article 17 of the Union Contract provides in pertinent
part:
Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action.
All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. . . .
* * *
Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. . . .
Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows:
Verbal Reprimand With A Written Notation. . . .
Written Reprimand. . . .
Suspension Without Pay. . . .
An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable laws.
Pursuant to the Union Contract, it is the burden of the School Board to prove by clear and convincing evidence the grounds alleged in the Administrative Complaint as providing just cause for Mr. Navarro's suspension without pay and termination from his employment with the School Board. "Just cause" is not defined in the Union Contract. Thus, recourse must be had to the "applicable statutes and provisions of the Agreement."
Article 22, Paragraph 8, of the Union Contract provides in pertinent part:
Whenever sick leave appears to be abused as determined by the Superintendent, or where an employee consistently uses his/her sick leave as it is earned, the employee requesting such sick leave may be required to furnish competent medical proof of the necessity for such absence. Abuse of sick leave privileges shall constitute grounds for dismissal by the District. In the event a permanent employee exhausts his/her sick leave while on sick leave and remains unable to return to work, he/she may use accumulated annual leave provided prior verbal or written notification is given to the Department
Based on the findings of fact herein, the School Board has failed to satisfy its burden of proving by clear and convincing evidence that Mr. Navarro abused his sick leave privileges. "Abuse of sick leave privileges" is not defined, and the Union Contract provides no guidance as to the conduct that is prohibited. In any event, the first option available to the School Board when it suspects that an employee has abused his sick leave privileges is to require the employee to provide medical certifications for the absences. Mr. Navarro provided such certifications for virtually all of his absences between March 13, 2000, and June 8, 2000.
Section 231.44, Florida Statutes (1999), 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."
The legislature did not provide a definition of the term "willfully absent" in Section 231.44. However, in defining the term "willful violation" as that term was used in
Section 376.3078(3)(c), Florida Statutes, the court in Metropolitan Dade County v. State Department of Environmental
Protection, 714 So. 2d 512, 515-17 (Fla. 3d DCA 1998), stated:
In construing an undefined term, we must look to the common or usual meaning of the term. State Dept. of Administrative v.
Moore, 524 So. 2d 704 (Fla. 1st DCA 1988).
The hearing officer relied on the definition of "willful violation" in Thunderbird Drive- In [Theatre, Inc. v. Reed, 571 So. 2d 1341 (Fla. 4th DCA 1990)], and FDEP adopted this definition. The court in Thunderbird Drive- In relied on W. Page Keeton, et al., Prosser & Keeton Handbook of the Law of Torts § 34, at 213 (5th ed.1984), in concluding that the usual meaning assigned to "willful" "[i]s that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow. . . ." Thunderbird Drive-In, 571 So. 2d at 1344 (quoting Smith v. Sno Eagles Snowmobile Club, 823 F.2d 1193 (7th Cir.
1987). Thus, the Thunderbird Drive-In court concluded that when the legislature uses the word "willful" in a statute it demonstrates the legislature's intention that the actor possess "more than mere knowledge or awareness" for the statute to be applicable. Thunderbird Drive-In, 571 So. 2d at 1344.
. . . Other courts have ascribed to a similar definition of "willful violation." In Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1983), the Supreme Court determined that a "willful" violation, as the term is used in federal statutes, requires a showing
that the actor "either knew or showed reckless disregard for the matter of whether its conduct was prohibited. . . ." This definition conveys the same idea that the act be intentional and accompanied by the "actor's intent and purpose that the prohibited conduct take place." Thunderbird Drive-In, 571 So. 2d at 1344. This definition has been applied to other statutory schemes. [Citations omitted.]
Based on the findings of fact herein and on the above- quoted definitions of "willful," the School Board has met its burden of proving by clear and convincing evidence that
Mr. Navarro was willfully absent from duty when he refused to report for a light-duty work assignment subsequent to June 9, 2000. Mr. Navarro was aware that his failure to report could result in the termination of his employment with the School Board, and he disregarded the warnings that he was given repeatedly by Ms. Gragg and Ms. Meyer. When Ms. Gragg denied Mr. Navarro's request for personal leave on June 22, 2000, she directed him to report for duty on Monday, June 26, 2000. At this point, Mr. Navarro should not have ignored Ms. Gragg's directive to report for work and abandoned his attempts to obtain approval for personal leave without pay.14
There is no authorization in Section 231.3605 or in the Union Contract for termination of an educational support employee specifically for gross insubordination. Cf. Section 231.36(6)(b)(administrative and supervisory employees may be
terminated during the term of contract for gross insubordination); Rosario v. Burke, 605 So. 2d 523 (Fla. 2d DCA 1992)(head custodian was supervisory employee and termination was governed by Section 231.36(6)(b)). Rather, the School Board apparently15 bases its allegation that Mr. Navarro should be terminated from his employment for gross insubordination on School Board Directive 3.27(c), which provides for disciplinary action for "[g]ross insubordination, which is defined as a willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority." Article 17, Paragraph 7, of the Union Contract contemplates disciplinary action against those employees covered by its provisions for actions violating School Board rules and regulations. Accordingly, based on the findings of fact herein, the School Board has met its burden of proving by clear and convincing evidence that Mr. Navarro committed gross insubordination by willfully disregarding Ms. Gragg's several directives subsequent to June 9, 2000, that he report for his light-duty work assignment.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension without pay
of Miguel Navarro and terminating his employment with the School Board.
DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2001.
ENDNOTES
1/ The School Board also introduced Exhibits 7.1-.3, 11.1, 14.1, 15.1, 18.1, 21.1, 24.1, 27.1, and 40.1, which are the Spanish versions of the primary exhibits.
2/ Although the information regarding Mr. Navarro's injured back is not strictly relevant to the issues presented in the Administrative Complaint, Mr. Navarro asserts that all of the problems he had from January 2000 through June 2000 were the result of the injury to his back in January 1999.
3/ In a letter dated February 17, 1999, William Thompson, who was principal of Taylor/Kirklane Elementary immediately prior to Ms. Gragg, advised Mr. Navarro to report to him as soon as possible to discuss his leave days. In addition, on March 9, 1999, Mr. Thompson sent Mr. Navarro a memorandum setting forth the provisions relating to sick leave, verification of illness, and false claims contained in Article 22, Sections 8 and 10, of the Union Contract. Mr. Navarro was advised in the memorandum that he had no sick leave hours as of March 2, 1999. It is likely that copies of these documents were contained in
Mr. Navarro's personnel file and were reviewed by Ms. Gragg.
4/ Under the School Board's system, absences are classified as "sick leave charged to annual leave" when an employee is absent because of illness but has no accrued sick leave"; absences are classified as "sick leave charged to 'without pay'" when an employee is absent because of illness but has no accrued sick or annual leave.
5/ The School Board did not offer into evidence any information regarding Mr. Navarro's attendance record prior to January 2000, nor did it offer correspondence, if any, between Ms. Gragg and Mr. Navarro prior to February 2000. Rather, in accordance with the allegations in the Administrative Complaint, the School Board focused on Mr. Navarro's absences and job performance from January 2000 through June 2000.
6/ Mr. Camerino is the head of the School Board's Employee Records and Information Services office.
7/ Ms. Gragg testified that she and Mr. Navarro did not meet as she requested in her April 17, 2000, letter to discuss his job performance because of his absences. However, Ms. Gragg's written reprimand dated March 13, 2000, advised Mr. Navarro that his job performance would be reviewed on April 18, 2000;
Mr. Navarro was not absent during the week of April 17, 2000, or on April 25, 26, or 27, 2000.
8/ In the explanation of Mr. Navarro's deficiencies attached to his annual evaluation, Ms. Gragg referenced Mr. Navarro's purported poor performance from May 15 to May 23, 2000, on March 23, 2000, and from April 17 to May 25, 2000. On rebuttal, Ms. Gragg testified that the deficiency sheet contained typographical errors and that the references to May 15, 23 and 25, 2000, should have been to April 15, 23 and 25, 2000.
Accordingly, Ms. Gragg based her unsatisfactory annual evaluation of Mr. Navarro on what she considered his excessive absences and on his unsatisfactory performance of his job responsibilities on March 23, 2000, on April 15 through 23,
2000, and on April 23 through 25, 2000.
9/ The record contains contradictory evidence with respect to whether Mr. Navarro timely provided Ms. Gragg with the
Dr. Bogani's medical certifications. First, the record does not include any School Board policy or rule requiring submission of the medical certifications at any specific time. Ms. Gragg testified that Mr. Navarro never timely provided the
certifications and often would not give her the certifications until several weeks after he had returned to work. Mr. Navarro, on the other hand, testified that he always provided the certifications as soon as he returned to work. Given
Ms. Gragg's usual attention to detail in her written criticisms of Mr. Navarro's absences and job performance, one would expect her to have some written documentation to support her testimony that Mr. Navarro consistently failed to provide the certifications timely.
10/ Ms. Gragg testified that Mr. Navarro said on June 7, 2000, that he would be out for "a number of days" beginning June 8, 2000. There is nothing in the record to indicate that Ms. Gragg knew this of her own personal knowledge. In fact, in the memorandum dated June 7, 2000, directing Mr. Navarro to submit a leave request, Ms. Gragg indicated that Mr. Navarro had spoken to Ms. McIntyre.
11/ Mr. Navarro's summer hours were from 8:00 a.m. until 4:30 p.m.
12/ Except for this mention in the June 9, 2000, letter, there is no documentary or testimonial evidence to independently establish that Ms. Gragg had provided a warning to Mr. Navarro on June 8, 2000. Accordingly, this statement in the June 9, 2000, is hearsay and cannot support a finding of fact that
Ms. Gragg had given Mr. Navarro such a warning on June 8, 2000.
13/ Mr. Navarro's first appointment for an MRI was June 20, 2000, but the test could not be completed because Mr. Navarro was claustrophobic and was also too large for the machine.
Mr. Navarro did not keep the June 28, 2000, appointment, but he reported for an MRI on July 5, 2000; again, the test could not be performed because Mr. Navarro was too large for the machine.
14/ Mr. Navarro could have consulted with his union representative or with Mr. Camerino's office regarding further steps he might take to secure leave without pay.
15/ The School Board cites Rule 6A-4.009, Florida Administrative Code, as authority for taking disciplinary action against
Mr. Navarro for "gross insubordination." The School Board did not cite this rule in its Administrative Complaint as authority for taking disciplinary action against Mr. Navarro. Even if it had, this rule applies by its terms only to instructional personnel, and the School Board has cited no statute or
provision of the Union Contract that would make this rule provision applicable to an educational support employee such as Mr. Navarro.
COPIES FURNISHED:
Miguel Navarro
2504 10th Avenue North Suite 201-D
Lake Worth, Florida 33461
Virginia Tanner-Otts, Esquire Palm Beach County School Board 3318 Forest Hill Road
Suite C-302
West Palm Beach, Florida 33406-5813
Honorable Charlie Crist Commissioner of Education Department of Education The Capital, Plaza Level 08
Tallahassee, Florida 32399-0400
James A. Robinson, General Counsel Department of Education
The Capital, Suite 1701 Tallahassee, Florida 32399-0400
Dr. H. Benjamin Marlin, Superintendent Palm Beach County School Board
3370 Forest Hill Boulevard
West Palm Beach, Florida 33406-5870
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 19, 2001 | Agency Final Order | |
| Aug. 22, 2001 | Recommended Order | Custodian was willfully absent from duty and committed gross insubordination when he failed to report for light-duty work assignment from June 9, 2000, until suspension in September 2000. Suspension without pay sustained and employment terminated. |
WINNIE ODEN vs FLAGLER COUNTY SCHOOL BOARD, 00-004237 (2000)
BETTY SUAREZ PATTERSON vs. MONROE COUNTY SCHOOL BOARD, 00-004237 (2000)
MANATEE COUNTY SCHOOL BOARD vs TAMMY M. JOHNSON, 00-004237 (2000)
RENYA JONES vs ST. LUCIE COUNTY SCHOOL BOARD, 00-004237 (2000)
PINELLAS COUNTY SCHOOL BOARD vs LLOYD CROSSMAN, 00-004237 (2000)
