vs.
Respondent.
) Case No. 10-9947
On February 15, 2011, a formal administrative hearing was conducted by teleconference in Tallahassee and Largo, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Laurie A. Dart, Esquire
31177 U.S. Highway 19, North
The issue in this case is whether the Pinellas County School Board (Petitioner) has just cause to terminate the employment of teacher Francine Louis (Respondent).
By notice dated September 28, 2010, the Petitioner advised the Respondent that her employment as a teacher was being terminated. The Respondent challenged the termination, and the Petitioner forwarded the dispute to the Division of Administrative Hearings, which scheduled and conducted the hearing.
At the hearing, the Petitioner presented the testimony of three witnesses and had Exhibit 1 and Exhibits 3 through 11 admitted into evidence. The Respondent testified on her own behalf, and had one Exhibit admitted into evidence.
A Transcript of the hearing was filed on February 23, 2011. The Petitioner filed a Proposed Recommended Order that has been considered in the preparation of this Recommended Order.
At all times material to this case, the Respondent was employed by the Petitioner as a French teacher, assigned on a full-time basis to Countryside High School in Clearwater, Florida.
The terms of the Respondent's employment were governed by a collective bargaining agreement (CBA) between the Petitioner and the Pinellas County Classroom Teachers Association. Pursuant to the CBA, the Respondent was entitled to one day of sick leave per month, up to a maximum of ten days
per school year. Unused sick leave would accrue from year to year without restriction. Upon providing two days advance notice, a teacher could use up to four days of sick leave for personal reasons unrelated to illness, and the personal leave would be charged against accrued sick leave.
The Respondent's job performance was satisfactory through the end of the 2008-2009 school year.
In December of 2009, Assistant Principal Lewis Curtwright became aware that the Respondent had been absent from the classroom for approximately 15 days during the first part of the 2009-2010 school year. He approached the Respondent in the school hallway and asked if there was a reason for the absences. The Respondent declined to discuss the matter with
Mr. Curtwright.
Based on the Respondent's refusal to address his concern during the informal discussion, Mr. Curtwright scheduled a formal meeting for December 8, 2009, to discuss the Respondent's attendance, and advised the Respondent of the meeting in a hand-delivered notice, dated December 3, 2009.
At the December 8, 2009, meeting, the Respondent explained that the attendance situation was related to personal stress and health concerns, to her enrollment in a graduate studies program, to unhappiness with her classroom arrangements, and to her schedule. Mr. Curtwright responded by emphasizing
the importance of classroom instruction, and advised the Respondent that her absences could be negatively impacting the quality of instruction and the educational progress of her students. He advised that documentation was required for the absences, and that use of extended sick leave required a doctor's note.
Mr. Curtwright memorialized the discussion from the meeting in a letter dated December 10, 2009, which was provided to the Respondent.
Despite the conference, the Respondent's attendance continued to be a matter of concern for Mr. Curtwright. By the time Mr. Curtwright completed the Respondent's annual performance appraisal on April 23, 2010, the Respondent had been absent for 21 classroom days, and in addition, had started to leave the school grounds without permission before the end of the work day. He noted the concerns in the Respondent's performance evaluation.
Mr. Curtwright also scheduled a formal meeting for May 3, 2010, by notice dated April 28, 2010, and delivered to the Respondent; he advised that the meeting was being held to discuss the Respondent's "poor attendance and leaving without signing out."
At the May 3, 2010, meeting, Mr. Curtwright noted that since the December 8, 2009, meeting, the Respondent had missed
additional classroom days, and that he had seen the Respondent leaving campus before the end of the school day without signing out. He observed that no documentation had been provided for any of the absences. He reiterated the requirements for documentation and noted that additional absences would result in a reprimand and additional disciplinary measures. The Respondent did not participate during the meeting, but took notes.
Mr. Curtwright memorialized the discussion from the meeting in a letter of caution, issued and delivered, to the Respondent on May 4, 2010.
By the end of the 2009-2010 school year, the Respondent had been absent without approval or documentation for a total of 25.5 days. According to the Petitioner's attendance reports, the Respondent was absent on 16 days prior to the December 8, 2009, meeting, and was then absent for 9.5 days between the December 8, 2009, and the May 3, 2010, meeting.
Despite the warnings, the Respondent's attention to attendance requirements did not improve.
Teachers employed under the CBA do not receive "vacation" time other than the usual periods when schools are not in session, such as during the summer and various holidays. It is reasonable to expect that teachers consider the school
calendar when planning vacations, so as to be present and available for work when school is in session.
The 2010-2011 school year was scheduled to commence on August 16, 2010. Students are not present during the first week of the school year, and teachers are expected to be present at the school to participate in various planning and organizational meetings, and to make ready for the commencement of instruction when students return.
Countryside High School teachers were specifically advised of the starting date for the 2010-2011 school year in a faculty meeting held in January of 2010. Copies of the 2010- 2011 school calendar were distributed at the faculty meeting, and the school calendar was published and widely available.
In February 2010, the Respondent made plans to travel outside the country during the summer of 2010.
On the evening of Sunday, August 15, 2010, the night before the 2010-2011 school year began, the Respondent sent an email to the school secretary stating that the Respondent was "out of the country" and would not return to work until
August 23, 2010.
The Respondent's email stated that she had attempted to utilize an online system (the "sub-finder" system) to record the absences, but that the system had been unavailable.
The Respondent failed to request or to obtain approval for her absence from the first week of the 2010-2011 school
year.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has
jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010).
The Petitioner has the burden of proving by a preponderance of the evidence the allegations underlying the proposed termination of the Respondent's employment. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990). In this case, the burden has been met.
Section 1012.33(1)(a), Florida Statutes (2010), provides as follows:
Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. 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. (Emphasis supplied.)
Section 1012.33(1)(a), does not restrict the definition of "just cause" to only those offenses set forth in the statute. The Petitioner has adopted School Board
Policy 3140, setting forth additional grounds for disciplinary action, and establishing a system of progressive discipline applicable to the Petitioner's instructional staff.
According to the policy, dismissal is warranted "where the employee conduct is severe or in cases where the misconduct or unacceptable behavior or performance is repetitive and the progressive discipline procedures have not corrected the problem," but the policy, also, states that the severity of the problem or conduct will determine whether all disciplinary steps will be followed prior to dismissal.
The policy lists specific disciplinary offenses and applicable penalties, up to and including, termination. As set forth in the Petitioner's notice of proposed termination, dated September 28, 2010, the Petitioner has alleged that the Respondent has violated the following offenses set forth in School Board Policy 3140:
9a. Failure to perform the duties of the position
* * *
Excessive absenteeism or tardiness
Absence without leave (AWOL)
18a. Abandonment of job (shall be presumed after three (3) consecutive work days of absence without leave)
* * *
20. Insubordination, which is defined as a continuing or intentional failure to obey a direct order, reasonable in nature, and given by and with proper authority"
* * *
22. Misconduct or Misconduct in Office
* * *
24. Failure to comply with Board policy, State law, or appropriate contractual agreement
In order to provide instructional services to students, a teacher is required to be present in the classroom, unless otherwise excused. By her unexcused absences, the Respondent violated Offense #9a, and failed to perform the duties of her position.
The Respondent clearly violated Offense #17, through her excessive absenteeism. No credible evidence was offered at the hearing that would permit a determination that any, much less all, of the Respondent's absences were excusable.
The Respondent's absences without approved leave were a clear violation of Offense #18.
The Respondent's unexcused absence for the entire first week of the 2010-2011 school year constituted abandonment of her job, and was a violation of Offense #18a.
During the December 8, 2009, and the May 3, 2010, meetings, Assistant Principal Curtwright clearly identified the requirements for proper documentation and use of leave, and directed the Respondent to comply with such requirements. The Respondent's refusal to comply with the requirements constituted insubordination, and was a violation of Offense #20.
The Petitioner has asserted that the Respondent's attempt to use the "sub-finder" system to report her absence at the beginning of the 2010-2011 school year was an attempt by the Respondent to record the absences as sick leave in order to conceal the fact that she was vacationing outside the country, and constitutes the violation of Offense #22.
The Petitioner's policy does not define misconduct.
Florida Administrative Code Rule 6B-4.009(3) provides the following applicable definition:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to
impair the individual’s effectiveness in the school system.
The evidence fails to establish that the Respondent has committed a violation of Offense #22. The evidence fails to establish that the Respondent has commited a violation of the Code of Ethics of the Education Profession in Florida. The evidence fails to establish that the Respondent has committed a violation of the Principles of Professional Conduct for the Education Profession in Florida.
The evidence fails to establish that the Respondent's attempt to use the "sub-finder" system to report her absence at the beginning of the 2010-2011 school year was an attempt to conceal the fact that she was traveling outside the country. Had the Respondent intended to suggest that she was ill, it is unlikely that she would have disclosed to the school in her email of August 15, 2010, the fact that she was traveling outside the country.
Finally, the Respondent's repeated failure to comply with the Board policy and contractual provisions, related to use of leave time constituted a violation of Offense #24.
At the hearing, the Respondent was dismissive of the allegations against her, suggested that her behavior was not unreasonable, and asserted that she'd had a "bad year." The evidence fails to suggest the Respondent has any intention of
improving her attendance in the classroom or her compliance with leave requirements.
At the hearing, the Respondent also asserted that other teachers had been subjected to lesser disciplinary penalties for similar infractions; however, there was no credible evidence offered at the hearing that would suggest there are other teachers with attendance deficiencies comparable to those of the Respondent.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order terminating the employment of Francine Louis.
DONE AND ENTERED this 29th day of March, 2011, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2011.
Laurie A. Dart, Esquire Pinellas County Schools
31177 U.S. Highway 19, North
Dr. Julie M. Janssen, Superintendent Pinellas County School Board
Dr. Eric J. Smith Commissioner of Educations 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.
