vs.
Respondent.
) Case No. 04-3213
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on November 30 and December 1, 2004, in Fort Myers, Florida, on behalf of the Division of Administrative Hearings (DOAH).
For Petitioner: J. Paul Carland, II, Esquire
For Respondent: Robert J. Coleman, Esquire
The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
On September 9, 2004, Petitioner suspended Respondent without pay and notified Respondent that Petitioner intended to terminate Respondent's employment. Respondent timely requested an administrative hearing. Petitioner referred the matter to DOAH to conduct the administrative hearing.
At the hearing, Petitioner presented the testimony of two witnesses and submitted 19 exhibits for admission into evidence. Respondent presented the testimony of four witnesses, including Respondent, and submitted six exhibits for admission into evidence. The parties submitted one joint exhibit.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the two-volume Transcript of the hearing filed with DOAH on December 16, 2004. Pursuant to two joint requests for extensions of time, Petitioner and Respondent timely filed their respective proposed recommended orders (PROs) on January 14, 2005.
Petitioner employed Respondent as a food service worker at Lehigh Acres Middle School in Lee County, Florida (the school), from October 22, 1998, until August 2, 2004, when Petitioner suspended Respondent with pay and benefits. A food service worker is an educational support employee defined in Subsection 1012.40(1)(a), Florida Statutes (2004).
Petitioner proposes to terminate Respondent's employment on the basis of facts alleged in the Petition for Termination dated August 11, 2004 (the petition). In relevant part, the petition alleges that during the 2003-2004 school year Respondent was guilty of excessive absences that affected Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015 of the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC agreement).
During the 2003-2004 school year, Respondent's work day began at 8:30 a.m. and ended at 3:00 p.m. Each day included two paid 15-minute breaks and one unpaid 30-minute lunch break.
Respondent's immediate supervisor adopted a policy identified in the record as a "ready-to-work" policy. The policy required food service workers, including Respondent, to put on their hair nets and aprons and wash their hands before beginning work. After a worker was ready to work, the worker then entered in a daily log sheet the time that the worker began work each day. The policy also required each worker to record in the daily log the time the worker left work and any period that the worker left and returned to work in the same day.
The supervisor incorporated the "ready-to-work" policy in a revised employee handbook. The revised handbook was distributed to food service workers on September 26, 2003. On
December 10, 2003, Respondent signed a form acknowledging that she had read the revised handbook.
On 47 days from August 14, 2003, through May 20, 2004, Respondent was late to work, left work early, left for part of the same day, or was absent the entire day. Respondent was late to work on 20 days, left work early on 13 days, was absent 13 days, and left for part of one day for two hours and ten minutes. Petitioner deems all 47 instances to be "absences" within the meaning of Section 9.015 of the SPALC agreement.
Assuming arguendo that all 47 instances are absences, the preponderance of evidence does not show that the absences were unauthorized. The supervisor testified at the hearing. The supervisor did not have authority to approve or disapprove absences. Rather, the head of the department or the school principal authorized requests for absences.
Neither the head of the department nor the principal testified at the hearing. The supervisor did not know whether Respondent's absences were unauthorized. The supervisor merely reported the 47 absences to the "front office" and later determined they were unauthorized and excessive. Petitioner did not submit personnel records that may have documented which absences, if any, were unauthorized.
Counsel for Petitioner argued during the hearing that even authorized absences can adversely affect Respondent's
ability to carry out the essential functions of her position within the meaning of Section 9.015. However, counsel did not cite any legal authority in his PRO to support the argument.
Assuming arguendo that all 47 absences were unauthorized, Subsection 9.016(a) of the SPALC agreement imposed an affirmative duty on Petitioner to inform Respondent, immediately upon her arrival to work following each absence, that Petitioner considered the absence to be unauthorized. The purpose of the requirement is to afford an employee such as Respondent with notice and an opportunity to show extenuating circumstances. If an employee demonstrates extenuating circumstances, the agreement requires Petitioner to change the absence to an authorized absence.
It is undisputed that Respondent had several physical conditions, including skin cancer and a miscarriage, that affected her attendance during the 2003-2004 school year. The preponderance of evidence shows that Respondent was absent from work due to medical conditions.
During the hearing, Petitioner stipulated that it was withdrawing several dates as a basis for its proposed termination of employment. The withdrawn dates include all 13 days on which Respondent was absent for an entire day; the day that Respondent left and returned to work for part of the day;
and ten days that Respondent left work early on August 25 and September 10, 2003, and between October 20, 2003, and
March 26, 2004.
The stipulation reduced the contested absences on which Petitioner based the proposed termination to 20 days when Respondent was late to work and three days when Respondent left work early. As previously found, Petitioner failed to submit testimony or documentation that the contested absences were unauthorized or that Petitioner informed Respondent upon her arrival to work that Petitioner had determined the immediately preceding absence to be unauthorized.
Assuming arguendo that the contested absences were unauthorized and that Petitioner provided timely notice to Respondent, the contested absences present other evidential concerns for the trier of fact. On 12 of the 20 days that Respondent was late to work, Respondent was no more than five minutes late. Being late five minutes or less did not affect Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015. Another food service worker testified for Petitioner that being late five minutes or less did not affect any employee's ability to do his or her job.
For the remaining eight late arrivals, Respondent was
15 minutes late on two days, 30 minutes late on two days, and
was late the remaining four days between seven and 12 minutes. The preponderance of evidence did not show that Respondent failed to telephone her supervisor when Respondent was going to be late 15 or more minutes. During most of the remaining four days, Respondent was at the school getting ready for work or otherwise within view of her supervisor.
The co-worker called as a witness by Petitioner, testified that Respondent's tardiness in excess of five minutes did not adversely affect the witness' job responsibilities, but did adversely affect the supervisor or other workers. However, the witness erroneously thought that Respondent's work day in the 2003-2004 school year began at 8:00 a.m. It is undisputed that Respondent's shift began at 8:30 a.m. The witness never really knew Respondent's actual start time.
When Respondent was late to work, Respondent made up the time by working into her lunch or break periods. This was a custom that similarly situated workers practiced regularly.
The assistant principal for the school did not testify. However, documents in the record indicate that the assistant principal met with Respondent on October 20, 2003. At that time, Respondent had been late to work approximately 15 times, absent approximately two times, and had left work early approximately two times. The documents indicate the assistant principal "talked with [Respondent] . . . about being on time to
work." The supervisor who testified at the hearing was not present at the meeting.
Following the meeting with the assistant principal, Respondent's attendance improved. The supervisor did not formally discuss Respondent's attendance with her again until the supervisor completed a performance evaluation for Respondent in March 2004.
The performance evaluation, in pertinent part, authorized the supervisor to score prescribed categories of Respondent's job performance as "Effective level of performance observed," "Inconsistently practiced," or "Unacceptable level of performance observed." The supervisor did not score any of Respondent's targeted areas as "Unacceptable level of performance observed." She scored five areas as "Inconsistently practiced," including categories labeled "Is punctual in attendance," "Follows written and oral work schedule," and "Exhibits dependability."
On April 22, 2004, the school principal signed a form recommending Respondent for reemployment for the 2004-2005 school year. On April 29, 2004, Respondent counter-signed the form recommending reemployment. On the date of the proposed reemployment, Respondent had been absent from work 43 days, including 19 of the 20 contested late arrivals and one of the three contested days when Respondent left work early.
On May 20, 2004, Respondent left work three hours early. On May 21, 2004, the supervisor issued a written reprimand to Respondent for being late to work, leaving work early, or being absent from work approximately 47 times between August 14, 2003, and May 20, 2004.
The written reprimand did not provide a clear point of entry for Respondent to contest the factual basis for the reprimand in an administrative hearing. The reprimand merely informed Respondent that Respondent was entitled to prepare a response to the reprimand.
Respondent and her union representative did not challenge the factual basis of the written reprimand in a grievance procedure authorized in Article 5 of the SPALC agreement. However, Section 5.102 prohibits the grievance procedure from being construed to deny any rights that are otherwise guaranteed to Respondent by law.
On May 24, 2004, the first work day following Respondent's receipt of the written reprimand, Respondent began work five minutes late at 8:35 a.m. Neither the supervisor nor any other representative for Petitioner spoke with Respondent to inform her that Petitioner had determined the late arrival to be an unauthorized absence.
On May 27, 2004, the supervisor recommended that Petitioner terminate Respondent's employment. This proceeding
ensued.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter. § 120.57(1), Fla. Stat. (2003). The parties received adequate notice of the administrative hearing.
The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment for the reasons stated in the petition. McNeill v. Pinellas County School Board, 678 So. 2d
476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
During the hearing, Petitioner submitted evidence purporting to show that Respondent had excessive absences in school years prior to the 2003-2004 school year. The trier of fact has not considered that evidence as a basis for a finding of fact. The factual allegations in the petition are confined to Respondent's conduct in the 2003-2004 school year. Evidence of excessive absences in previous years is not relevant to the factual allegations in the petition. See Florida State University v. Tucker, 440 So. 2d 37 (Fla. 1st DCA 1983).
The trier of fact has not considered evidence of absences in previous years as similar fact evidence to prove
"notice." Subsection 120.57(1)(d), Florida Statutes (2004), requires Petitioner to furnish Respondent with a timely written statement describing with particularity the evidence Petitioner intended to introduce as similar fact evidence, and Petitioner did not satisfy the statutory requirement.
Petitioner relies on the factual allegations on which the written reprimand was based, as modified by the stipulation during the hearing, to justify the proposed termination of employment. Respondent did not waive her statutory right to contest the factual allegations by failing to request an administrative hearing after receipt of the written reprimand. The written reprimand contains no clear point of entry. See McIntyre v. Seminole County School Board, 779 So. 2d 639 (Fla. 5th DCA 2001) (holding, inter alia that the agency must show it provided employee with a clear point of entry in order to show that employee waived statutory right to a hearing).
The failure of Respondent to challenge the factual basis of the written reprimand in a grievance procedure does not preclude Respondent from requesting an administrative hearing for that purpose. Section 5.102 of the SPALC agreement expressly prohibits the agreement from being construed to deny Respondent any rights otherwise guaranteed by law. See Sublett v. District
School Board of Sumter County, 617 So. 2d 374 (Fla. 5th DCA 1993) (holding employee did not waive right to administrative hearing
where collective bargaining agreement expressly provided that no rights under Florida law were waived by the agreement).
The petition alleges that Respondent engaged in a pattern of excessive absences that affected Respondent's ability to carry out the essential functions of her position. Section
of the SPALC agreement defines excessive absence as:
three (3) consecutive days of absence without medical verification in a case where abuse is suspected and/or
three (3) unauthorized absences in a twelve (12) month period and/or
a continued pattern of absence that affects an employee's ability to carry out the essential functions of his/her position.
Petitioner cannot rely on the first and second definitions of excessive absence to terminate Respondent's employment. The petition does not include those grounds, and Respondent is entitled to notice and an opportunity to be heard on the allegations in the petition. Pilla v. School Board of Dade County, 655 So. 2d 1312 (Fla. 3d DCA 1995); Tucker, 440 So. 2d
at 37.
Petitioner failed to satisfy its burden of proving the factual allegations in the petition. The preponderance of evidence does not show that any of the absences, including the contested absences in the stipulation during the hearing, either
were unauthorized or adversely affected Respondent's ability to carry out the essential functions of her position.
If it were determined that Petitioner may rely on the first two definitions of excessive absence as grounds for termination, Petitioner did not satisfy its burden of proof. Petitioner did not show that Respondent used her medical conditions to abuse the leave policies in the SPALC agreement. Nor did Petitioner show that any of the absences, including three absences in a 12-month period, were unauthorized.
RECOMMENDED that Petitioner enter a final order dismissing the petition, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits.
DONE AND ORDERED this 1st day of February, 2005, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2005.
Robert J. Coleman, Esquire Coleman & Coleman
J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue
Dr. James W. Browder, III, Superintendent Lee County School Board
Daniel J. Woodring, General Counsel Department of Education
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.
