STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-3791

)

MICHAEL SPAULDING, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the hearing by videoconference in Tallahassee, Florida, on November 16, 2007. The parties, attorneys for the parties, witnesses, and court reporter participated by videoconference in Miami, Florida.

APPEARANCES

For Petitioner: Janeen Richard, Esquire

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

Miami, Florida 33132

For Respondent: Michael Spaulding, pro se

105 Northwest 58th Street Miami, Florida 33127

STATEMENT OF THE ISSUE

The issue is whether Petitioner may lawfully dismiss Respondent from employment for excessive absenteeism.

PRELIMINARY STATEMENT

By letter dated July 12, 2007, Petitioner informed Respondent that it had initiated proceedings to dismiss Respondent for just cause, including excessive absenteeism, abandonment of position, nonperformance and deficient performance of job duties, and violation of School Board Rules 6Gx13-4A-1.21, 6Gx13-4A-1.213, and 6Gx13-4E-1.01.

By letter dated August 2, 2007, Respondent requested a formal hearing.

By Notice of Specific Charges filed September 27, 2007, Petitioner alleged that Respondent, as defined by Section 1012.40, Florida Statutes, was a nonprobationary "educational support employee," who is subject to termination for the reasons stated in the collective bargaining agreement. The notice states that Respondent's bargaining unit is Local 1184, American Federation of State, County, and Municipal Employees and that the relevant contract addresses termination at Article II, Section 3. The notice also states that, pursuant to Section 1012.67, Florida Statutes, any district employee who is willfully absent from duty without leave is subject to termination.

The notice alleges that Petitioner employed Respondent as a bus aide. The notice alleges that Respondent failed to report to work for over two months, Petitioner conducted a conference

for the record, and Petitioner decided to terminate Respondent's employment after the conference. Count I of the notice states that Respondent violated Article XI, Section 4, of the contract by excessive absenteeism. Count II states that Respondent thus failed to perform his job duties. Count III states that Respondent violated School Board Rule 6Gx13-4A-1.21 by failing to conduct himself in a manner that reflects credit on himself and the school system. Count IV states that Respondent violated School Board Rule 6Gx13-4A-1.213 by failing to take responsibility for his own actions and discharging his job duties efficiently and effectively. Count V states that Respondent violated School Board Rule 6Gx13-4E-1.01 by willful absences without leave from work.

At the hearing, Petitioner called three witnesses and offered into evidence 19 exhibits: Petitioner Exhibits 1, 5-14, and 16-23. Respondent called one witness and offered into evidence no exhibits. All exhibits were admitted except Petitioner Exhibit 1, which was proffered.

The court reporter filed the Transcript on January 7, 2008.

Petitioner filed a Proposed Recommended Order on January 9, 2008.

FINDINGS OF FACT

1. Petitioner initially employed Respondent as a part-time bus aide on December 8, 1987, and subsequently employed him as a

   full-time bus aide on September 14, 1989. At all material times, Respondent has been covered by the 2006-2009 Successor Contract between Petitioner and the American Federation of State, County, and Municipal Employees, Local 1184, whose term is July 1, 2006, through June 30, 2009 (Contract).

2. The job of the bus aide is to assist special-needs students in boarding and exiting the bus. When an aide fails to notify his supervisor of his absence from work, Petitioner tries to find a substitute bus aide, but often cannot, so the bus driver must assist these students, as well as perform his usual duties of driving the bus.

3. Respondent has had attendance problems for some time prior to the period in question. For example, he incurred 26 days of unauthorized absences from April 2004 through February 2005. These absences resulted in the issuance to Respondent of a memorandum, dated April 13, 2005, warning him that unauthorized absences justified dismissal.

4. The subject period of absenteeism began on November 21, 2006, when Respondent did not appear at work and did not contact his supervisor. Petitioner documented the absence with three hours of sick leave and three hours of unauthorized leave. On November 22, which was the day before Thanksgiving, Respondent did not appear, and Petitioner documented the absence with six hours of unauthorized leave. The following Monday and Tuesday,

   November 27 and 28, Respondent was again absent without leave. He worked on November 29 and 30, but missed that Friday, December 1, again without leave. Respondent was absent without leave for four days of the next week, all five days of the following week, and all four days of the week after that, at which point winter break started. After winter break, Respondent was absent without leave for the next nine weeks in their entirety. After missing the first two days of the tenth consecutive week, Respondent finally reappeared at work on March 21, 2007.

5. In the meantime, on January 26, 2007, Petitioner's District Director, Office of Professional Standards, wrote Respondent and informed him that Petitioner had deemed him to have abandoned his position due to his extensive absences. The letter gave Respondent ten days to request a review and warned that, if he did not request a review, the School Board would take final action terminating Respondent. On February 21, 2007, Petitioner's District Director, Office of Professional Standards, wrote Respondent and informed him that he would need a clearance to return to work.

6. On March 12, 2007, Petitioner conducted a conference for the record to address Respondent's absenteeism. During the conference, Respondent acknowledged 104.5 absences, including

   90.5 unauthorized absences, from March 1, 2006, through

   February 28, 2007. Respondent's excuses were two deaths in his family and an eviction.

7. After the March 12 conference for the record, Petitioner provided Respondent with a clearance to return to work, even though the matter had not yet been finally resolved. Respondent worked as scheduled for a few days prior to spring break and two days after spring break, following which he was absent without leave for the remaining three days of the first week after spring break and the next two weeks in their entirety.

8. In granting the clearance to return to work, Petitioner did not relieve Respondent from liability for the absences, detailed above, that started on November 21, 2006. Upon Respondent's failure to report to work as scheduled after spring break, Petitioner conducted a duly noticed meeting on May 22, 2007, to discuss pending School Board action to dismiss Respondent. On July 2, 2007, Petitioner advised Respondent that, on July 11, 2007, the School Board would receive the Superintendent's recommendation to dismiss him from employment due to absenteeism. On July 11, the School Board accepted the Superintendent's recommendation, suspended Respondent, and initiated dismissal proceedings against him.

9. Respondent testified at the final hearing, but failed to offer any plausible explanation for the absences in late 2006

   and early 2007 that resulted in this case. The deaths in his family in November 2006 and December 2006 were of the grandmother of his brother's wife and the sister of his brother's wife. The eviction occurred in early November 2006. Respondent's dog died from cancer in January 2007. However, Respondent never offered any explanation for why he never even called his supervisor during this extended period of absenteeism. As Respondent testified, the same supervisor had been understanding and supportive when Respondent had required hospitalization in early 2006, and there was no reason to assume that he would not again do what he could reasonably to accommodate Respondent's difficulties.

10. Article XI, Section 4, of the Contract provides:

    
    

    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.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

12. Respondent is an "educational support employee," within the meaning of Section 1012.40(1)(a), Florida Statutes.

    Pursuant to Section 1012.40(2)(b), Respondent is subject to termination for the reasons stated in the collective bargaining agreement.

13. As noted above, two provisions of the Contract provide for termination for the absences described above.

14. Section 1012.67, Florida Statutes, provides that any employee who is "willfully absent from duty without leave . . . shall be subject to termination by the school board." Petitioner's Rule 6Gx13-4E-1.01 states: "Except for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave."

15. Petitioner has the burden of proving the material allegations by a preponderance of the evidence. Dileo v. School

    Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

16. Petitioner has proved that, under the Contract, it has ample authority to terminate Respondent's employment. Nothing in this case militates in favor of discipline less than termination, as Petitioner has tried, without success, to work with Respondent and his serious problem with attendance.

17. Petitioner has also proved that, under Section 1012.67, Florida Statutes, it has ample authority to terminate Respondent's employment. This case presents a dramatic record of absenteeism combined with the absence over many weeks of any

attempt to communicate with a supervisor. Under these circumstances, even absent the above-quoted rule, Respondent's absences were willful.

RECOMMENDATION

It is

RECOMMENDED that the School Board enter a final order dismissing Respondent from employment.

DONE AND ENTERED this 23rd day of January, 2008, in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 23rd day of January, 2008.

COPIES FURNISHED:

Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1308

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric J. Smith Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Janeen L. Richard, Esquire Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Michael Spaulding

105 Northwest 58th Terrace Miami, Florida 33127

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 07-003791

Orders for Case No: 07-003791