STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

JANICE E. HODGSON, )

)

Respondent. )

Case No. 01-3867

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on May 17, 2002, in Miami, Florida, before Florence Snyder Rivas, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

For Respondent: Janice E. Hodgson, pro se

14020 Northeast Third Court, Unit 5 North Miami, Florida 33162

STATEMENT OF THE ISSUE

Whether Respondent's employment by the Petitioner should be terminated.

PRELIMINARY STATEMENT

On September 12, 2001, Petitioner, the School Board of Miami-Dade County, Florida (“Petitioner” or “School Board”), took action to suspend without pay, and initiate dismissal proceedings against, Respondent, Janice E. Hodgson (“Respondent” or “Hodgson”). Respondent timely asserted her statutory and contractual rights to an administrative hearing.

On October 19, 2001, Petitioner served its Notice of Specific Charges (Notice), alleging excessive absenteeism.

At the hearing, Petitioner presented the testimony of Henry N. Crawford, Jr., principal, and Virginia Bradford, assistant superintendent, Office of Professional Standards (OPS). Petitioner's Exhibits numbered 1-39 were admitted into evidence.

Respondent testified in her own behalf and Respondent's Exhibit's numbered 1-12 were admitted into evidence.

The parties elected not to order a transcript of the proceedings. The School Board requested an enlargement of time through June 10, 2002, to submit proposed recommended orders.

The request was not opposed by Hodgson and was granted. The School Board timely submitted its Proposed Recommended Order; Hodgson did not make a written submission.

FINDINGS OF FACT

1. At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981.

2. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park).

3. By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency.

4. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay.

5. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work.

6. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS.

7. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board.

8. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000,

   Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner.

9. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner.

10. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner.

11. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP).

12. EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP

    counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume.

13. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so.

14. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson.

15. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination.

16. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits

    relate to a young relative she felt obligated to drive to medical appointments during her work hours.

17. These exhibits prove little, if anything.

    
    

    Individually and collectively they are neither

    
    

    self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent.

18. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit.

19. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees.

20. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. See Section 120.569 and 120.57(1), Florida Statutes.

22. The School Board has the burden of proving just cause to terminate Hodgson's employment by a preponderance of the evidence. See McNeil v. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996); Dileo v. School Board of Dade County, 569 So 2d 883 (Fla. 3d DCA 1990).

23. Section 447.209, Florida Statutes, provides that it is the right of public employers to “direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or other legitimate reasons.”

24. Respondent is a non-probationary “educational support employee” within the meaning of Section 231.3605, Florida Statutes, which provides:

    1. As used in this section:

       1. “Educational support employee” means any person employed by the district school system who is employed as a teacher assistant, an educational 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

          district school board pursuant to s. 231.1725. . . .

       2. “Employee” means any person employed as an educational support employee.

       3. “Superintendent” means the superintendent of schools or his or her designee.

       
       

    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 district school board rule in cases where a collective bargaining agreement does not exist.

       1. 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 district school board rule in cases where a collective bargaining agreement does not exist. . .

       2. In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement.

       
       

25. Article IX, Section 4, of the AFSCME Contract provides, in pertinent part:

    * * *

    
    

    1. Excessive Absenteeism/Abandonment Position -- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12- month period shall be evidence of

       excessive absenteeism. Either of the foregoing shall constitute grounds for termination. . . .

    2. Disciplinary -- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non- performance of job responsibilities. Such action occurs at any necessary point in time.

    
    

    * * *

    
    

26. The School Board has established excessive, unauthorized absenteeism by Hodgson which effectively constitutes an abandonment of her position as a school custodian.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment.

DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 14th day of June, 2002.

COPIES FURNISHED:

Janice E. Hodgson

14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161

Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue Suite 912

Miami, Florida 33132

Honorable Charlie Crist, Commissioner Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

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: 01-003867

Orders for Case No: 01-003867