Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, in Leesburg, Florida, on April 23, 2009. The appearances were as follows:
For Petitioner: Stephen W. Johnson, Esquire
McLin & Burnsed, P. A. Post Office Box 491357
The issue to be resolved in this proceeding concerns whether the Petitioner has just cause to terminate the employment of the Respondent.
This cause arose on September 9, 2008, when the Superintendent of the Lake County School District notified the Respondent, Latonya Chavous, (Respondent) (Ms. Chavous) that she was recommending her termination to the School Board. The Board approved that recommendation, voting to terminate the Respondent’s employment on September 22, 2008.
The Respondent elected to contest that recommendation and decision. She requested an administrative hearing, on or about September 17, 2008. In due course the dispute was transmitted to the Division of Administrative Hearings, which issued its Initial Order on February 9, 2009. A Notice of Hearing was then issued, setting the case for hearing on April 23, 2009.
On April 8, 2009, the case was transferred to Administrative Law Judge P. Michael Ruff for conduct of all further proceedings. The case thereafter came on for hearing as noticed.
During the hearing the Petitioner presented the testimony of one witness, Rebecca Nelsen. The Petitioner offered 11 Exhibits, out of a total of 14 which were identified. Those 11 Exhibits were admitted into evidence. Exhibits 4, 7, and 8 were not admitted.
The Respondent presented the testimony of two witnesses, herself and her husband, Miller Chavous. The Respondent offered two exhibits, which were admitted into evidence.
. Upon concluding the hearing, the parties had the testimony transcribed and elected to submit proposed recommended orders.
Those Proposed Recommended Orders have been considered in the rendition of this Recommended Order.
The Petitioner is the School Board of Lake County, Florida (Board)(Petitioner). It is charged with operating and managing the public school system in Lake County, Florida, otherwise known as the Lake County School District.
The Respondent, at times pertinent hereto, was employed by the Board as a school guidance counselor at Sawgrass Elementary School. Her principal was Rhonda Hunt.
During the 2005-2006 school year, the Respondent missed
71 days from her job. In the 2006-2007 year, she missed 97 days. In the 2007-2008 school year, the Respondent missed 87 days from work. The contract for a guidance counselor requires that they work for 221 days per school year.
During these times, especially in the 2007-2008 school year, the Respondent had been making repeated requests for leave. Ms. Hunt, her principal, became concerned and in May of 2008 reported the situation about extensive absences, and leave requests, to Ms. Rebecca Nelsen, the Board's Supervisor of Compensation, Benefits and Employee Relations.
In the 2007-2008 school year, when Ms. Hunt brought the issue to Ms. Nelsen's attention, the Respondent had missed work the number of days found above, which represented all the days
in the school year from February 13th through the end of the school year. In the previous year, she had missed work from the middle of January through the end of the school year.
Ms. Nelsen prepared a memo to Deke DeLoach, the Board's Chief of Human Resources, apprising him of the situation regarding the Respondent's absences. She explained to him the situation involving the excessive absences over a 5-year period. She explained to Mr. DeLoach that when an employee has been on extended unpaid leave that, according to Board policy 6.50, her return to employment is dependant upon a position being available. Therefore, while an individual is on extended leave, which is approved, their position becomes available to be filled at the decision of an individual school administrator.
Moreover, unpaid leave, the status applicable to the Respondent's situation, must be approved in advance. An employee may not go off-duty on unpaid leave and then get approval for it at a later time. Approval must be requested in advance. A formal request must be made to the Superintendent, for the Superintendent's recommendation to the Board. Extended Illness Leave is a leave category that is required to be approved by the Board as well. Ms. Nelsen therefore explained to Mr. DeLoach that the Respondent had been on extended unpaid leave and, according to the above-referenced Board policy, her
return to employment was dependent upon a position being available.
Employees are required to have approval for some form of leave before they take leave or miss time from work. If an employee does not have approval for some form of leave and does not come to work, then under Board policy they are deemed to be absent without leave. If that is the situation, the employee can be terminated under Board policy.
The School Board must have a recommendation from the Superintendent in order to be able to act on any sort of leave request. Under Board policies, an Extended Illness Leave is required to be approved by the Board.
The school fiscal year ends June 30th. July 1, 2008, therefore, was the beginning of the new fiscal year for the 2008-2009 school year. The regular school session then began near the end of August 2008.
Ms. Nelsen wrote to Ms. Chavous on August 19, 2008, explaining to her that she had been on unpaid sick leave numerous days, and giving her options to consider. Ms. Nelsen informed her that she must report to work or be considered absent without approved leave, that she could explain to her supervisor any accommodations that she may need, or that she could request Extended Illness Leave. That communication, from
Ms. Nelsen to Ms. Chavous, references a July 29, 2008, request for sick leave.
Ms. Chavous completed the July 29, 2008, request for sick leave on a Request for Leave of Absence form, which is the form required to be completed by employees who are requesting any kind of leave from the School Board. The July 29, 2008, leave form depicted a request for leave from August 4, 2008, through August 19, 2008. The reason for the leave requested was indicated as "Illness of self.” The Respondent did not have any sick leave available to her at that time.
In the 2008-2009, school year, the Respondent was not eligible for leave under the Family Medical Leave Act. This was because she had not worked enough days in order to trigger eligibility under that law.
This leave request was denied because the Respondent was on unpaid sick leave the prior year, had missed 87 days, and had never offered an explanation for her need to use sick leave. Therefore, the Board had no basis on which to approve the additional leave request and the Respondent's approved leave ended June 30, 2008. Any leave that the Respondent would have received for any extended illness would have been for the previous school year which was over at the end of the fiscal year, June 30, 2008.
Ms. Nelsen gave the Respondent two options in her August 19, 2008, letter:
To report to work or be considered absent without approved leave, or
To submit a leave request form asking for extended illness leave for the remainder of the year.
On August 28, 2008, a request was faxed from the Respondent seeking extended illness leave. The attached doctor's note did not explain the nature of the medical situation or condition, in terms of providing justification for the leave requested.
The Respondent submitted a leave request form with that August 28, 2008, request. It did not confirm that she was asking for extended illness leave for the school year. Instead she requested leave from August 4, 2008, until October 30, 2008.
Since School Board policy required the Respondent, in this situation, to request leave for the remainder of the school year, Ms. Nelsen sent an e-mail to the Respondent telling her that she had no available sick leave to use and again telling her that she had the option to either report to work or to request an extended illness leave for the remainder of the year. That communication was sent on August 29, 2008, the day after the Respondent faxed the form requesting leave through October.
The Respondent then sent Ms. Nelsen another leave request form in response to the August 29, 2008, e-mail. It
again requested leave from August 4, 2008, through October 30, 2008.
On September 9, 2008, a letter was sent from the Superintendent to the Respondent, explaining that the Respondent had not reported to work and that she had not requested extended illness leave. Consequently she was informed that she was now considered “absent without approved leave” and would be recommended to the School Board for termination of employment.
When the Superintendent sent the letter to the Respondent, on September 9, 2008, the Respondent was not on approved leave. She was absent without leave under the terms of the School Board policy. Pursuant to that policy she was therefore subject to being terminated.
Ms. Nelsen received three leave request forms from the Respondent, none of which requested leave for the remainder of the school year, and none of which gave an explanation for the basis of the medical condition.
The Respondent's response to these facts was her statement to the effect that "[I]t was just always told to me that you can't request for more leave than what your doctor has put on the form. So, therefore, that's why I put the dates there." She also acknowledged that sometimes she does not remember some things or doesn't respond as fast as she should. Therefore she simply stated that she believed, in effect, that
she had submitted everything that she could and had explained her situation to the best of her ability at the time.
The collective bargaining agreement between the Lake County School District and the Lake County Education Association includes the position of guidance counselor. That contract references the Board policy which makes it a terminable offense to be absent without leave. The recommendation to the Board, prior to the Respondent making a Request for Hearing, was that she be terminated for being absent without leave.
The Respondent's prior leave had expired at the end of the 2007-2008 school year. When the first day of school started in the current school year of 2008-2009, the Respondent did not report to work. The Respondent probably would have been unable to work because of her illness before January 2009. She would therefore have missed all of August, September, October, November, and December.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§120.569 and 120.57(1), Fla. Stat. (2008).
The Respondent is an instructional employee of the above-named School District, as defined by Section 1012.01(2), Florida Statutes (2008). In accordance with Section 1012.27, Florida Statutes (2008), the Superintendent is authorized to
recommend to the Board that instructional employees be suspended or dismissed from employment. The Board has the authority to terminate such employees, pursuant to Sections 1012.22(1)(f) and 1012.33(6)(a), Florida Statutes (2008).
Section 1012.33(1)(a), Florida Statutes (2008), establishes the standard for termination of instructional personnel as being for “just cause.” That concept is not defined in a detailed fashion in the statutes. The Petitioner has discretion, subject to review by formal proceeding, in setting standards which constitute just cause to discipline employees, including termination. See Dietz v. Lee County School Board, 647 So. 2d 217 (Fla. 2d DCA 1994).
It is the Board’s burden to establish just cause by a preponderance of the evidence. 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); see also Section 120.57(1)(j), Florida Statutes.
Just cause has been defined in Section 1012.33(1)(a), Florida Statutes (2008) in the following manner:
. . . Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
Incapacity is defined in Florida Administrative Code Rule 6B-4.009(1) as "inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Incapacity is defined in sub-paragraphs (1)(b)(2) of the rule as ". . . lack of adequate physical ability."
Gross insubordination or willful neglect of duty is defined as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." See Fla. Admin. Code R. 6B-4.009(4).
It is within the Board's authority and discretion to enact policies that dictate the method of operation of the schools in the district and the proper measures for discipline and dismissal of personnel. See § 1001.42, Fla. Stat. The requiring of compliance with its policy requiring employees to appear at work or be subject to termination without approved leave is within the discretion and authority of the Board.
The Respondent was advised, on more than one occasion, that she had to request and be granted an extended leave for the entire 2008-2009 school year or be at work at the opening of school. She did neither.
As shown by her own testimony, the Respondent would have missed several months at the beginning of the school year of 2008-2009 for physical reasons. She obviously did not have
adequate physical ability to perform her job. The evidence clearly shows that the Respondent had exhausted all previously approved leave; that she was not able to return to work; and that she had repeatedly failed to follow instructions of
Ms. Nelsen concerning proper reporting of the need to be absent from work, and to provide reasonably adequate justification for extended absences, both with regard to the prior years and the 2008-2009 school year. She ignored these instructions and thus was in violation of School Board policy. The Petitioner thus had good cause to proceed with the Respondent's termination.
Excessive absenteeism without approval, and without required approved leave, has been held to constitute just cause for termination of an employee. This is particularly so when the absenteeism has been quite excessive over an extended period of time. See Hernando County School Board v. Jennifer Gallagher, DOAH Case No. 08-1012 (DOAH: December 4, 2008); Seminole County School Board v. Andrews, DOAH Case No. 07-2486 (DOAH: September 20, 2007); Duval County School Board v. Johnson, DOAH Case No. 04-2138 (DOAH: March 2, 2005).
The preponderant evidence establishes that, in the context of the above findings, conclusions and authority, in terms of the Respondent’s willful neglect of duty and incapacity as to physical ability, that the Board has established its case for termination. It is determined that just cause exists for
the Respondent's termination for violation of the referenced statutes, rules and School Board policy.
Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is,
RECOMMENDED that a Final Order be entered by the Lake County School Board finding that the employment of the Respondent, Latonya Chavous, be terminated for just cause.
DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2009.
Stephen W. Johnson, Esquire McLin & Burnsed
Dr. Susan Moxley, Superintendent Lake County Schools
Deborah K. Kearney, General Counsel Department of Education
Dr. Eric J. Smith Commissioner of Education Department of Education
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.
