STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

vs.

TIMBERLY S. MCKENZIE,

Respondent.

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) Case No. 06-1185

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the formal hearing in this proceeding on May 26, 2006, in Largo, Florida, for the Division of Administrative Hearings (DOAH).

The ALJ conducted the hearing by telephone conference. The parties, witnesses, and court reporter participated from the

hearing site in Largo.

APPEARANCES

For Petitioner: Laurie A. Dart, Esquire

Pinellas County School Board

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 33779-2942

For Respondent: Timberly S. McKenzie, pro se

446 Fifth Street, South Safety Harbor, Florida 34695

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner should dismiss Respondent from her employment as a bus driver for an eight-day absence from work that was allegedly unauthorized.

PRELIMINARY STATEMENT

By letter dated March 15, 2005, Petitioner notified Respondent of the proposed agency action to dismiss Respondent from her employment at a meeting of the Pinellas County School Board that took place on April 12, 2005. Respondent timely requested a formal hearing.

At the hearing, Petitioner presented the testimony of five witnesses and submitted nine exhibits for admission into evidence. Respondent testified, called two of Petitioner's witnesses as her own, and submitted three exhibits for admission into evidence. Petitioner submitted one exhibit as a late-filed exhibit, and Respondent filed a response to the late-filed exhibit.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the one-volume Transcript of the hearing filed with DOAH on June 8, 2006. Petitioner timely filed its Proposed Recommended Order (PRO) on July 6, 2006.

On July 5, 2006, Respondent filed an ex-parte

communication, a copy of which DOAH provided to counsel for Petitioner, in which Respondent stated she would be filing her

"statement" within a week. The ALJ deemed the communication to be a request for extension of time in which to file Respondent's

PRO.

By July 20, 2006, the ALJ had not received any objection

from Petitioner and had not received a PRO from Respondent. On the same date, the ALJ issued an Order Terminating Extension of Time. Respondent filed her PRO on July 21, 2006. The ALJ considered the late-filed PRO.

FINDINGS OF FACT

1. Petitioner employed Respondent as a substitute bus driver on November 18, 2002. From February 10, 2003, through the date of the hearing, Petitioner employed Respondent as a bus driver. A bus driver is an educational support employee.

2. Respondent was absent from work for eight days from February 2 through 11, 2005. The absence was not authorized.

3. The unauthorized absence from February 2 through 4, 2005, comprised three days of unauthorized absence within one pay period. The unauthorized absence from February 7

   through 11, 2005, comprised five days of unauthorized absence within one pay period.

4. The eight-day unauthorized absence occurred during the regular school session. Respondent's supervisor scheduled a substitute bus driver to drive Respondent's assigned bus route.

5. Respondent was absent from work for a vacation cruise in Chile. The unauthorized absence was not needed for medical or family reasons or for some other emergency.

6. The terms of Respondent's employment are prescribed in the Collective Bargaining Agreement (CBA) between Petitioner and the Service Employee's International Union (SEIU). The terms of employment are further explained in a document identified in the record as the Bus Driver Handbook.

7. Respondent had actual knowledge that she was entitled to only four personal days off from work with prior approval from Petitioner. Sometime in August or September 2004, an SEIU representative advised Respondent, in response to her inquiry, that the CBA authorized a maximum of four personal days off upon approval of Petitioner. Respondent did not disclose that she intended to be absent from work for a vacation while school was in session.

8. On January 3, 2005, Respondent asked the dispatcher to approve eight personal days off for a vacation. The dispatcher explained that his authority to approve or disapprove leave requests was limited to requests for up to four personal days.

9. Only the compound supervisor had authority to approve a request for authorized personal days in excess of four days.

   The compound supervisor denied Respondent's request before Respondent left for her vacation, and Respondent had actual notice of the denial.

10. The denial was based in part on the ground that Respondent had no contractually authorized personal days in excess of four days during the regular school session. Even if she were to have authorized personal days in excess of four, the compound supervisor needed all of his bus drivers because school was in session.

11. There was a shortage of bus drivers. February was a busy period in the school year. It was imperative that students have transportation to their schools.

12. Absences in excess of authorized personal days must be requested on a form entitled Request for Leave of Absence, identified in the record as PCS Form 3-137. Respondent never requested a leave of absence on PCS Form 3-137. Rather, Respondent utilized the form authorized for requesting up to four personal days for the purpose of requesting a leave of absence of eight days.

13. A request for a leave of absence on Form 3-137 would have been submitted to the director of transportation for Petitioner. The director never received such a request.

14. Several aggravating circumstances are evidenced in the record. Respondent did not take the unauthorized absence for

    medical or family reasons or for some other emergency. Respondent took the unauthorized absence for her own leisure.

15. Bus drivers, including Respondent, are nine-month employees. Respondent had other opportunities during the school year for vacations, including summer, a week at Thanksgiving, two weeks during Christmas, and a week during spring break. When school is in session, Respondent had no contractual right to more than four paid personal days.

16. Respondent took the unauthorized absence with knowledge that her action would adversely affect her employer during a busy time of the school year. Respondent knew that the unauthorized absence would result in disciplinary action. Prior to her vacation, Respondent's supervisor suggested Respondent may want to remove her personal items from her bus before leaving for her vacation because she probably would face disciplinary action when she returned.

17. Petitioner has imposed previous discipline against Respondent. Petitioner issued a letter of reprimand to Respondent for segregating black and white students on her bus.

    CONCLUSIONS OF LAW

    
    

18. DOAH has jurisdiction over the parties and the subject matter. § 120.57(1), Fla. Stat. (2004). The parties received adequate notice of the formal hearing.

19. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by a preponderance of the evidence that Respondent committed the offenses with which she is charged and the reasonableness of any proposed penalty. MacNeill v.

    Pinellas County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996).

20. Respondent is an "educational support employee."

    
    

    § 1012.40, Fla. Stat. (2004). The superintendent has authority to recommend dismissal of Respondent, and Petitioner has authority to dismiss Respondent from her employment.

    §§ 1012.27(5) and 1012.22(1)(f), Fla. Stat. (2004).

    
    

21. An unauthorized absence from employment is subject to termination. § 1012.67, Fla. Stat. (2004). Petitioner is authorized to terminate the employment of educational support employees for reasons stated in the CBA. § 1012.40(2)(b), Fla. Stat. (2004). The CBA, in relevant part, states that an unauthorized absence of five consecutive work days within one pay period "shall constitute grounds for termination." Art. 29 CBA § 13, page 42.

22. The unauthorized absence from February 7 through 11, 2005, comprised five days of unauthorized absence within one pay period. The proposed penalty is reasonable considering the aggravating circumstances evidenced in the record.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the alleged violation and dismissing Respondent from her employment.

DONE AND ENTERED this 3rd day of August, 2006, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 3rd day of August, 2006.

COPIES FURNISHED:

Timberly S. McKenzie

446 Fifth Street, South Safety Harbor, Florida 34695

Laurie A. Dart, Esquire Pinellas County School Board

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 33779-2942

Timberly McKenzie

125 Rhonda Drive Clayton, Georgia 30525

Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board

Post Office Box 2942 Largo, Florida 33779-2942

Daniel J. Woodring, General Counsel Department of Education

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

Honorable John Winn, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street 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: 06-001185

Orders for Case No: 06-001185