STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD,

Petitioner,

vs.

DOROTHY MACK,

Respondent.

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) Case No. 02-2309

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 2 and 3, 2002, in Sanford, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sandra J. Pomerantz, Esquire

Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Respondent: Thomas L. Johnson, Esquire

Chamblee, Johnson & Haynes, P.A.

215 West Verne Street, Suite D Tampa, Florida 33606

STATEMENT OF THE ISSUE

Whether Respondent should be terminated from her employment with the Seminole County School Board.

PRELIMINARY STATEMENT

By letter dated May 20, 2002, Respondent, Dorothy Mack (Mack), was advised by the Superintendent of Seminole County Schools that he intended to recommend to Petitioner, Seminole County School Board (School Board), that she be terminated from her employment with the School Board. Mack requested an administrative hearing by letter dated May 25, 2002.

On June 11, 2002, Petitioner filed a Petition for Termination with the Division of Administrative Hearings (DOAH) requesting that an administrative law judge be assigned to conduct a formal administrative hearing. The case was assigned to Administrative Law Judge William R. Cave.

The case was scheduled for final hearing on August 9, 2002.

On July 18, 2002, Respondent filed an Agreed Motion for Continuance. The final hearing was rescheduled for October 22 and 23, 2002. On October 4, 2002, Respondent filed another Agreed Motion for Continuance, which was granted. The final hearing was rescheduled for December 2 and 3, 2002. The case was reassigned to Administrative Law Judge Susan B. Kirkland, who conducted the final hearing.

At the final hearing, Petitioner called the following witnesses: John Thomas Caldwell, Jr.; Janelle Harris; Daniel J. Andrews; and John Reichert. Petitioner's Exhibits 1 through 8 and 11 through 14 were admitted in evidence. Respondent

testified on her own behalf and presented the testimony of Latonya Thomas. Respondent's Exhibit 1 was admitted in evidence.

The parties entered into a Joint Pre-Hearing Stipulation in which they admitted to certain facts contained in paragraphs one through seven on pages three and four. Those facts have been incorporated in this Recommended Order.

At the final hearing, the parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The two-volume Transcript was filed on February 4, 2003. On February 6, 2003, Respondent filed an Agreed Motion for Extension of Time to File Recommended Order, which was granted, and the time for filing proposed recommended orders was extended to March 17, 2003. On March 14, 2003, Respondent filed another Agreed Motion for Extension of Time to File Recommended Order, which was granted, and the time for filing proposed recommended orders was extended to March 21, 2003. The parties timely filed their Proposed Recommended Orders, which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Mack has been employed by the School Board for six years. During the 2001-2002 school year, Mack was a school lunch assistant assigned to Seminole High School. Her immediate supervisor was John Caldwell (Caldwell).

2. Mack received satisfactory evaluations of her work for Petitioner until April 2002, when she received an evaluation from Caldwell criticizing her in several areas. On April 12, 2002, a Friday, Mack was upset about her evaluation, showed her evaluation to fellow workers and loudly complained about her evaluation. She was becoming disruptive to the cafeteria operations.

3. Caldwell called Mack into his office to discuss her behavior. She became loud, and Caldwell had to call the Assistant Principal. Mack was sent home. Caldwell did not tell her not to come back, and, at that time, did not tell her that he was going to recommend that she be terminated.

4. On Monday, April 15, 2002, Mack called her workplace and said that she was sick and was going to the emergency room. On April 16, 2002, Mack called in and spoke to Janelle Harris (Harris), who was Caldwell's assistant. Mack told Harris that she had the flu and would not be coming to work.

5. The policy for a food service worker at Seminole High School who was going to be absent from work because of sickness was that the worker was to call either Caldwell or Harris and notify them of the absence. The telephone in Caldwell's office has voice mail capabilities; thus, if Caldwell or Harris were not in the office, the sick employee was to leave a message on the voice mail. Caldwell and Harris were the only two persons

   who had access to the code to retrieve messages from the voice mail.

6. On April 17, 2002, Mack was absent from work, but did not call in and give an explanation for her absence. Mack continued to be absent from work without calling in. On

   April 26, 2002, Mack came to the school office and picked up her paycheck. She did not go to the cafeteria and tell Caldwell or Harris why she had not been at work.

7. Learning that Mack had gone to the school to pick up her check, Caldwell called Mack at her home. Mack told Caldwell that she had called in and left a voice mail. No messages were left on the voice mail by Mack between April 17 and April 26. Caldwell explained to Mack that she was required to call in unless she was in the hospital or could not talk.

8. Daniel Andrews (Andrews), the Director of Food Services, prepared a letter to be sent to Mack under Caldwell's signature. The letter, dated May 2, 2002, advised Mack that she had continued to be absent without calling in to notify Caldwell of her absence and to provide a reason for the absence. The letter further advised her that three days of absence without leave required a penalty of termination. Mack was requested to contact Caldwell by noon on May 7, 2002, or the case would be referred to Andrews. Mack did not receive the letter until

   May 8, 2002; however, she never contacted Caldwell concerning the letter.

9. By letter dated May 10, 2002, Andrews advised Mack that because of her continued absences without leave and her failure to provide justification for her absences that he would be requesting that her termination be recommended to the School Board. Mack received this letter on May 18, 2002.

10. By letter dated May 20, 2002, Paul Hagerty, Superintendent of Public Schools for the School District of Seminole County, Florida, advised Mack that he would be appearing before the School Board on May 28, 2002, and recommending that she be suspended without pay. He further advised her that at the June 11, 2002, School Board meeting he would file a recommendation that her employment be terminated effective June 12, 2002.

11. Mack contacted Andrews by telephone and left a voice mail. On May 21, 2002, Andrews returned her call, and Mack told him that she had gotten the voice mail when she tried to call Caldwell but did not leave any messages. Andrews would have accepted a reasonable explanation from Mack for her absences when she talked to him on May 21, but she did not provide any plausible reason for not notifying Caldwell of her absences nor did she ever provide any documentation from a doctor that she

    had been ill during her absences. Mack told Andrews that she did not care if her employment was terminated.

12. By letter dated May 25, 2002, Mack requested a hearing on the decision to terminate her employment. Mack did not request a hearing concerning the recommendation for her suspension.

13. On May 28, 2002, the School Board suspended Mack, effective May 29, 2002.

14. Mack had a job at a local barbeque restaurant during the evening hours. While she was absent from her job at Seminole High School, she continued to work at the barbeque restaurant.

15. The Non-Instructional Personnel of Seminole County Board of Public Instruction, Inc., and the School Board have entered into a collective bargaining agreement, effective

    July 1, 1997, through June 30, 2002, covering the wages, hours, and the terms and conditions of employment of the public employees within the bargaining unit. The collective bargaining agreement applies to Mack's employment with the School Board.

16. Article VII, Sections 5, 11, and 15 of the collective bargaining agreement provide:

    Section 5.

    
    

    1. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be

       disciplined (which shall include reprimands), suspended or terminated except for just cause.

       * * *

       C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present:

       * * *

       10. Improper use of sick leave.

       
       

       Section 11. Absence Without Leave

       
       

       1. Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence.

       2. Absence without leave is a breach of contract and may be grounds for immediate dismissal.

       
       

       Section 15

       
       

       Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures:

       1st Offense--Written reprimand and one day suspension.

       2nd Offense--Five day suspension without pay.

       3rd Offense--Recommend for termination.

       
       

17. The School Board interprets the collective bargaining agreement to mean that each day an employee is absent without leave is a separate offense. At no time did the School Board issue Mack a written reprimand, one-day suspension, or a five-

    day suspension prior to her termination, as set forth in Section 15 of the collective bargaining agreement.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.

19. The School Board has the burden to establish by a preponderance of the evidence the material allegations of the notice of the intent to recommend termination. Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990).

20. The School Board established that Mack was absent without leave from April 17, 2002, to May 29, 2002. The collective bargaining agreement provides that an employee who fails to notify the appropriate personnel of an absence and the reason for the absence is considered to be absent without leave. The collective bargaining agreement further provides that the absent employee is to report the absence as the beginning of each duty day. Beginning April 17, 2002, Mack failed to report her absences and was absent without leave.

21. The School Board is bound by the collective bargaining agreement concerning the discipline to be administered for absences without leave. In Bell v. School Board of Dade County, 681 So. 2d 843 (Fla. 3rd 1996) and Collins v. School Board of Dade County, 676 So. 2d 1052 (Fla. 3rd DCA 1996), the Third

    District Court of Appeal held that the school board was bound by its collective bargaining agreement which provided for progressive or corrective discipline.

22. In the instant case, there is a conflict between Sections 11 and 15 of the collective bargaining agreement concerning the penalties for being absent without leave. Section 11 provides that an employee who is absent with leave may be subject to immediate dismissal. Section 15 requires that an employee who has been absent without leave shall be subject to progressive discipline procedures. Using the progressive discipline procedures, termination for absence without leave is an appropriate discipline for a third offense of absence without leave. "When a conflict arises under a contract, and such conflict requires construction of possibly inconsistent provisions thereof, the general rule of construction requires that provisions stated in general terms must yield to those stated in specific terms." Cypress Gardens Citrus Products, Inc. v. Bowen Bros., Inc., 223 So. 2d 776, 778 (Fla. 2d DCA 1969). Section 15 of the collective bargaining agreement is the more specific provision concerning discipline for absences without leave. Thus, Section 15 requires that the progressive discipline procedures be used prior to the termination of an employee who has been absent without leave.

23. The School Board failed to follow the procedures for progressive discipline for absences without leave. Whether the School Board considers that each day that an employee is absent without leave is a separate offense is irrelevant in the instant case because the School Board did not take disciplinary actions for the first and second offenses as required by the collective bargaining agreement. If the School Board had followed the provisions of the collective bargaining agreement, it would have disciplined Mack after her first day of absence without leave with a reprimand and a one-day suspension. If she continued with her unapproved absences, the School Board could have taken a second disciplinary action and suspended her for five days. However, the school board took no disciplinary action until Mack had been absent for over a month. The purpose of progressive discipline is to put the employee on notice of the inappropriate action and the consequences for such action, thus allowing the employee an opportunity to correct the inappropriate action without suffering the drastic sanction of dismissal.

24. The appropriate penalty for Mack's violation is a reprimand and a one-day suspension.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding that Dorothy Mack was absent without leave, suspending her for one day, and issuing a reprimand.

DONE AND ENTERED this 10th day of April, 2003, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 10th day of April, 2003.

COPIES FURNISHED:

Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A.

215 West Verne Street, Suite D Tampa, Florida 33606

Sandra J. Pomerantz, Esquire Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400

Dr. Paul J. Hagerty, Superintendent Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Honorable Jim Horne Commissioner of Education Department of Education

325 West Gaines Street Turlington Building, Suite 1514 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: 02-002309

Orders for Case No: 02-002309