vs.
Respondent.
) Case No. 05-3949
Pursuant to notice, a hearing was conducted in this case on May 16, 2006, in Fort Lauderdale, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
For Petitioner: Eugene K. Pettis, Esquire
Debra Potter Klauber, Esquire Haliczer, Pettis, & Schwamm, P. A. One Financial Plaza
For Respondent: Thomas L. Johnson, Esquire
Pamela Hubbell Cazares, Esquire Chamblee, Johnson & Haynes, P.A.
Whether the employment of Respondent, a school teacher, should be terminated based on the allegations of job abandonment
and/or insubordination set forth in the More Definite Statement of Charges filed December 15, 2005.
On September 20, 2005, the Broward County School Board (the School Board or Petitioner) voted to terminate Respondent's employment as a teacher. Respondent timely requested a formal administrative hearing to challenge the proposed termination, the matter was referred to DOAH, and this proceeding followed.
Subsequent to the referral to DOAH, Respondent moved to require that Petitioner file a more definite statement setting forth the alleged grounds for the proposed termination. The undersigned granted the motion and Petitioner filed the More Definite Statement of Charges on December 15, 2005, alleging the matters at issue at the formal hearing. In addition, Petitioner alleged that Respondent was "incompetent" because of his inefficiency.
Petitioner abandoned the allegations relating to Petitioner's alleged incompetence at the formal hearing.
At the formal hearing, Petitioner presented the testimony of the following witnesses who were either employees or former employees of Petitioner. The name of each witness is followed in parentheses with the position he or she held at the times relevant to this proceeding. Those witnesses were: Dr. Ricardo Garcia (principal of Nova Middle School), Debra Knaub (a specialist in the Leaves Department), Amanda Busjit (a
specialist in the Employee Relations Department), and Respondent. Petitioner presented 25 pre-numbered exhibits, each of which was admitted into evidence. Petitioner’s exhibit numbers were 1, 4, 5, 7, 13, 15, 16, 19, 20, 22, 24, 27-30, 35,
38, 39, 41, 51, 55, 56, and 58-60. Petitioner's exhibits included the depositions of Randi Morales (office manager of Nova Middle School), Marjorie Fletcher (an administrator with the Leaves Department), and Clayton Myers, M.D. (Respondent's treating physician). Respondent testified on his own behalf and offered seven sequentially-numbered exhibits which were admitted into evidence. In addition, Respondent offered an exhibit that had been pre-marked as Respondent's Exhibit 10, which was rejected based on Petitioner's timely objection to the exhibit.
The Transcript of the proceedings was filed with DOAH on June 7, 2006. The parties filed Proposed Recommended Orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order.
Petitioner has employed Respondent as a school teacher since the school year 1998-99. Respondent’s assigned school has been Nova Middle School (Nova) since the 2000-01 school year.
At all times relevant to this proceeding, Petitioner was certified to teach in the designated field of "elementary
education." That certification permitted Respondent to teach kindergarten through sixth grade.
At all times relevant to this proceeding, Respondent’s employment was subject to the provisions of the collective bargaining agreement (CBA) between Petitioner and the Broward Teachers Union (BTU).
At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all public schools within the school district of Broward County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes.
Dr. Ricardo Garcia was the principal of Nova for the 2004-05 and 2005-06 school years. During the 2004-05 school year, Respondent began to perceive that he was having problems with Dr. Garcia1.
August 2, 2005, was the first day of the 2005-06 school year for teachers. August 2-5 were teacher planning days with the following Monday (August 8) being the first day of the school year for students.
Teachers who will not be at work on a particular school day are instructed to call in to the school office or to a computerized service (called Sub Central) so that the school can
take appropriate action to prepare for the teacher's absence, such as obtaining a substitute teacher.
Respondent did not report for work at any time during the 2005-06 school year.
On August 5, 2005, Mr. Garcia wrote to Respondent the following letter2 that accurately states the facts recited
therein:
The first day to report to work for the 2005-2006 school year was August 2, 2005 at 8:00 a.m. At 5:12 a.m. on August 2nd you called in sick to Sub Central. On August 3rd, you called in sick to Sub Central at 6:39 a.m., and on August 4th, you called in sick to Sub Central at 7:35 a.m. Today, Friday, August 5th after my office manager checked the Sub Central database, I was informed that you did not call in today, and you also did not report for work.
If you are aware that you will be absent for additional days, please inform my office at your earliest. If you need to request a medical leave, contact the Leaves Department to assist you in this matter. Because I have not received any communication from you for your absence today, disciplinary action will be taken if I do not hear from you by August 10th, 2005.
The letter of August 5, 2005, was mailed by certified mail and received by Respondent. The address used for all correspondence between Dr. Garcia and Respondent was to the address Respondent had on file with Nova, which was also the address Respondent gave out to the public. That address was to a residence in Boca Raton. An acquaintance of the Respondent
lived at that Boca Raton residence. That acquaintance would typically call Respondent when mail came to the Boca Raton address for Respondent. Respondent actually lived at an address in Fort Lauderdale. Respondent used this unusual arrangement for all of his mail, not just mail dealing with school matters.
In response to the August 5 letter, Respondent called the principal's office at Nova on August 8 and spoke to a staff person.3 During that conversation, Respondent represented to the staff person that he wanted a leave of absence and that he would file the requisite paperwork by August 10, 2005.
On August 8, 2005, Respondent went to Petitioner's Leaves Department and picked up a packet that contained blank leave application forms. The packet also contained a form for his treating physician to fill out.
Also on August 8, 2005, Respondent went to Dr. Myers' office and asked him to complete the medical form. Dr. Myers complied with that request the same day.
Respondent called to report his intended absence for each workday during the week August 8-12, 2005. Respondent placed the various calls to either Sub Central or Nova.
On August 15, 2005, Respondent called Nova and spoke to Ms. Daniel, who worked as a bookkeeper. Prior to that call, Dr. Garcia had instructed his staff that he wanted to talk with Respondent. He further instructed the staff that he wanted
Respondent to talk to Ms. Morales if he was not available. When Respondent called on August 15, Ms. Daniel asked Respondent to speak with Dr. Garcia or Ms. Morales. Respondent thought it unnecessary to speak to either Dr. Garcia or Ms. Morales and declined to do so.
Respondent’s last day of accrued sick leave expired on August 18.
On August 18, 2005, Dr. Garcia wrote Respondent a second letter which was mailed by certified mail to the same address as the August 5 letter. That letter was not received by Respondent prior to the institution of these proceedings. The August 18 letter was as follows:
This is a follow-up to my letter dated August 5, 2005. As of today's date, you have not reported to work for the 2005-2006 school year. You called Nova Middle School on August 8th after receipt of the August 5 letter and spoke to Mrs. Morales, Office Manager. You stated to her that you would submit appropriate paperwork to request a leave of absence no later than Wednesday, August 10th. I did not receive any paperwork or any physician's note either by August 10th to date.
On Monday, August 15th, you called the front office of Nova Middle School and notified Mrs. Daniels, Bookkeeper, that you wanted to take an unpaid sick leave until Wednesday, August 17th. Mrs. Daniels referred you to talk to Mrs. Morales or me, and you declined to do so.
Please be advised that you have the right to use any paid leave for sick purposes before a leave of absence takes effect, according to the Collective Bargaining
Agreement, Article 23(S)(9). Because you have failed to inform my office in writing of any medical illness that is supported by a licensed physician and you have not provided, to date, any request for an unpaid medical leave of absence, I must move forward with this matter to ensure that the students of Nova Middle School are not further adversely impacted by your absence in the classroom.
As a result, I am requesting that you notify my office, in writing, no later than Tuesday, August 23, 2005, of your return to work date. In addition, I am requesting that you send by mail documentation from a licensed physician to support your illness since August 2, 2005. If I do not receive your response by the date as mentioned above, I must recommend that the School Board consider you for termination due to job abandonment.
Please govern yourself accordingly.
On August 19, 2005, Respondent’s two leave applications simultaneously reached Dr. Garcia’s office through Petitioner’s internal mail service called the Pony System. Respondent deposited the applications in the Pony System at another school on or about August 17 and it took approximately two days for the applications to reach Dr. Garcia.
The first leave application to be discussed is Respondent’s application for leave pursuant to the Family Leave/Medical Leave Act (FMLA). Under defined circumstances, including his own illness, Respondent was entitled to up to 60 days of FMLA leave with his position assured upon the expiration of his leave.
Respondent stated on his application that the reason for the FMLA leave was for his illness, which he described as “work-related stress, anxiety . . .”. Respondent requested a total of 60 days of FMLA leave beginning August 2 and ending October 27.
The FLMA leave form contained the following direction:
All requests for medical leave due to your illness or the illness of a family member must include the completed attached “Certification of Health Care Provider” form[4].
The FMLA also contained a routing instruction directing the school to forward the application and the medical certification to the Leaves Department.
Respondent did not attach the completed Certification of Health Care Provider form or any other medical documentation to his FMLA leave application.
Respondent’s FMLA leave application was incomplete without the Certification of Health Care Provider or other suitable medical documentation. Respondent knew or should have known that the application for FMLA leave was incomplete without appropriate medical documentation.
Respondent’s second application was for a Board Approved Personal Leave of Absence (BAPLA). The reason given for the request was also “work-related stress, anxiety ...”
Pursuant to the terms of the CBA between Petitioner and BTU, Respondent had the right to go on an unpaid leave of absence for personal reasons of up to two years' duration. His teaching position would not be assured upon the expiration of that leave, but he could be rehired, depending upon job openings.
Respondent’s BAPLA application was incomplete because Respondent did not fill out the part of the form identifying the start date of the requested leave. The form contained the following, which Respondent left blank following the word “on”:
I wish to request a leave of absence for the 2005-06 school year effective at the
close of work on: 5
Dr. Garcia routed the two applications to the Leaves Department the same day he received them (August 19).
On August 30, 2005, Dr. Garcia wrote a letter to Respondent and mailed it to the Boca Raton address. Respondent did not receive Dr. Garcia’s letter of August 30, 2005, prior to the institution of these proceedings.
Dr. Garcia advised Respondent that medical documentation was necessary for FMLA leave and set a deadline of September 6, 2005, for Respondent to submit that documentation. Dr. Garcia incorrectly advised Respondent as to the availability of BAPLA6.
Debra Knaub, an employee of the Leaves Department, processed Respondent’s applications after receiving them from Dr. Garcia. Ms. Knaub could not process the FMLA leave application because of the missing medical documentation. After she received Respondent’s two applications from Dr. Garcia,
Ms. Knaub called on at least two occasions the telephone number that Respondent had provided. The telephone number was to Respondent’s cell phone. On each occasion, Ms. Knaub left Respondent a voice message requesting that Respondent return her call. Ms. Knaub was attempting to obtain Respondent’s medical documentation so she could process his FMLA leave application.
Respondent did not respond to these voice messages.
After the Leaves Department received and reviewed Respondent’s two leave applications, Marjorie Fletcher,
Ms Knaub’s supervisor, prepared a form letter, dated
September 7, 2005, that notified Respondent that the FMLA leaves application lacked a signed Certification of Health Care Provider form. This form letter also contained the following:
Please respond by September 12, 2005 or you will be placed on Board Approved Personal Leave where your position is no longer guaranteed.
After learning from Ms. Knaub that Dr. Garcia had established in his letter of August 30, 2005, a deadline of September 6, 2005, for Respondent to furnish the signed
Certification of Health Care Provider form, Ms. Fletcher decided not to send to Respondent her letter of September 7.
Ms. Knaub did not process Respondent’s application for BAPLA because she learned that Dr. Garcia had recommended that Respondent’s employment be terminated.
Petitioner advised Respondent of the following by certified letter dated September 12, 2005, signed by Receca A. Brito, Director of Instructional Staffing:
This is to inform you that your name will be submitted to the Broward County School Board on September 20, 2005, with a recommendation for termination of your employment.
If you have any questions, please contact Instructional Staffing Department . . . .
After Respondent exhausted his last day of authorized leave on August 18, 2005, he was absent from school without authorized leave for more than three consecutive workdays.
Respondent left Broward County for approximately three weeks beginning August 25, 2005. When he returned, he received Ms. Brito’s certified letter.
The School Board voted on September 20, 2005, to accept Dr. Garcia’s recommendation that Respondent’s employment be terminated.
Petitioner has adopted disciplinary guidelines applicable to this proceeding which provide for progressive discipline. Those guidelines were introduced into evidence as
Petitioner’s Exhibit 56 and are adopted by reference. Petitioner established that Respondent’s failure to adhere to Petitioner’s leave policies despite repeated efforts to communicate with him had a detrimental impact on the education process.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).
Because this case is a proceeding to terminate Respondent’s employment with the School Board and does not involve the loss of a license or certification, Petitioner has the burden of proving the allegations in the More Definite Statement of Charges by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. McNeill v. Pinellas County School Board, 678 So. 2d
476 (Fla. 2d DCA 1996); Allen v. School Board of Dade County,
571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of
Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990).
Petitioner has the burden of proving the allegations against Respondent as set forth in the More Definite Statement of Charges by a preponderance of the evidence. Allen v. Sch.
Bd. of Dade Co., 571 So. 2d 568 (Fla. 3d DCA 1990).
The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law
Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)
quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).
Florida Administrative Code Rule 6B-4.009(4) defines “gross insubordination or willful neglect of duty” as being
. . . a constant or continuing refusal to obey a direct order, reasonable in nature, given by and with proper authority.
Petitioner failed to establish that Respondent was insubordinate when he declined Ms. Daniel’s request that Respondent speak to either Ms. Morales or Dr. Garcia because Ms. Daniels was not in a position of authority to give Respondent a direct order.
Petitioner proved by a preponderance of the evidence that Respondent was absent without approved leave for more than three consecutive workdays beginning August 19, 2006, thereby proving that Respondent abandoned his position within the meaning of Petitioner’s established leave policies. The detrimental impact Respondent’s unauthorized absences had on the education process justified the termination of his employment.
Because Respondent believed, incorrectly, that he had complied with Petitioner’s leave requirements the undersigned recommends that the termination of Respondent’s employment should be without prejudice to his right to seek re-employment with Petitioner.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law set forth herein. It is further recommended that Petitioner terminate Respondent’s employment without prejudice to his right to seek re-employment. It is further recommended that Petitioner find Respondent not guilty of insubordination.
DONE AND ENTERED this 10th day of August, 2006, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2006.
1 Whether those perceived problems were justified is not at issue in this proceeding and no findings are being made as to that issue. Likewise, whether Respondent was too ill to work is also not at issue in this proceeding and no findings are being made as to that issue.
2 Dr. Garcia consulted with Petitioner's Employee Relations Department before drafting the August 5 letter and at all other times relevant to this proceeding.
3 In a letter dated August 18, 2006, Dr. Garcia stated that Respondent talked to Ms. Morales. Later Dr. Garcia testified that he may have been in error and that Respondent may have spoken to another staff person. Ms. Morales testified that she did not talk to Respondent. Respondent could not remember with certainty who he spoke with. Despite that confusion, the fact that he called and the substance of the conversation are not in dispute.
4 This form was part of the packet Respondent picked up from the Leaves Department on August 8, 2005. This is also the form that Respondent had Dr. Myers complete on August 8. There was a conflict in the evidence as to whether Respondent submitted the form completed and signed by Dr. Myers when he submitted his leave applications to Dr. Garcia. The greater weight of the credible evidence established that Respondent did not provide the medical documentation to Petitioner prior to the initiation of these proceedings.
5 After the form was routed to the Leaves Department, Debra Knaub inserted a handwritten note indicating that the BAPLA would begin upon the expiration of the FMLA.
6 Dr. Garcia did not distinguish the provisions pertaining to taking accrued leave time for personal reasons (as opposed for illness) and the provisions pertaining to taking BAPLA. See, Article 23 of the CBA in general and paragraphs A(2) and M thereof in particular. Because Respondent did not receive the letter before the institution of these proceedings, Dr. Garcia’s erroneous statement pertaining to BAPLA is irrelevant.
Dr. Franklin L. Till, Jr. Superintendent
Daniel J. Woodring, General Counsel Department of Education
Thomas Johnson, Esquire Chamblee, Johnson & Haynes, P.A.
Eugene K. Pettis, Esquire Haliczer, Pettis, & Schwamm, P. A. One Financial Plaza
Pamela Hubbell Cazares, Esquire Chamblee, Johnson & Haynes, P.A.
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.
