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.
Findings Of Fact 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. Respondent was absent from work for eight days from February 2 through 11, 2005. The absence was not authorized. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Petitioner has imposed previous discipline against Respondent. Petitioner issued a letter of reprimand to Respondent for segregating black and white students on her bus.
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
Findings Of Fact Petitioner, Deborah Nash, is a white female who was formerly married to a black male. The issue of that marriage is a biracial son. In 1981 the marriage ended in divorce. Petitioner has a bachelor's degree in elementary education which she received in 1981. She earned a master's degree in early childhood education in 1983. While living in Kentucky, Petitioner had teaching experience. During her time in Kentucky she worked in a federally funded child development center. Most of the children in the program were black. The children ranged in age from infants to kindergarten aged children. Petitioner has had other experience in working with minorities in job placement programs. In August, 1984, Petitioner decided to move to Jacksonville, Florida, and to seek employment as a teacher. At relevant times in this inquiry, Petitioner has held a Florida teaching certificate. Upon arrival in Jacksonville, Florida, Petitioner was interviewed by John Haevener, Supervisor of Elementary Staffing for the Duval County School Board, Respondent. Mr. Haevener determined to refer Petitioner to Hortense Brewington, principal at Northshore Elementary School, an elementary school within the Duval County School System. Ms. Brewington is a black female. In making this referral, Haevener felt satisfied about the ability which the Petitioner had to cope with the situation at Northshore Elementary. That school is one which has a minority student population of 95 percent black students and 5 percent white students. The faculty in that school is 70 percent white and 30 percent black. Haevener felt that the Petitioner could succeed in that environment because she had had past experience in dealing with the needs of children in the lower socio-economic strata. In the course of the interview between the Petitioner and Ms. Brewington, Petitioner revealed, upon questioning, the nature of her marital status and whether she had children and, in commenting about her child, told Ms. Brewington that she had a biracial child. This comment was met by Ms. Brewington by a look of surprise. Petitioner was accepted as an employee with the Duval County School System beginning in August, 1984, for the school year 1984-1985. Her assignment was as a second grade teacher at Northshore Elementary. This assignment was changed to a third grade class and Petitioner maintained that position during the relevant periods under consideration. Given that this was an initial assignment to the Duval County School System, Petitioner was placed in the Beginning Teachers Program. This arrangement contemplated and the Petitioner was given assistance in the performance of her teaching duties, provided by the Respondent. Petitioner's class was constituted of 28 students, 26 of whom were minorities, 25 of those children being black. In the fall of the school year 1984-1985, and in particular around October 1984, petitioner began to have difficulties with the class. There were numerous fights between the children. The children were otherwise uncooperative in the sense of not staying in their seats or "talking back" to the Petitioner. In one instance, a student drew two pictures of naked females, one of which was entitled "Angela" and the other reported to be the Petitioner. These items may be found as Petitioner's exhibits numbered 1 and 2 admitted into evidence. Petitioner took the student who had drawn these pictures to Ms. Brewington to seek assistance in disciplining the student. Ms. Brewington's response was not effective, in that the child who made the drawings and was taken to Ms. Brewington for discipline was not punished. This circumstance was representative of Ms. Brewington's shortcomings in disciplining the children within her school, to include children in the Petitioner's class. To summarize, Ms. Brewington was inconsistent in her approach to matters of discipline. On two occasions a male student in the class brought a 5" long switchblade knife to class. These two occurrences were separated in time by about five days. Petitioner referred the student to Ms. Brewington for discipline, but she continued to have problems with the child. Ms. Brewington suspended the child after the second incident with the knife. An additional problem the Petitioner experienced concerned the fact that the children had skills attributable to first graders and were expected to read on a level pertaining to third grade students. Petitioner, in carrying out her duties, was given some assistance in that a Chapter I teacher worked in the Petitioner's classroom with a small group while other class instruction was going on. This Chapter I instruction involved one or two students at a time. Nan Ramey, involved with teacher instructional support for the Duval County School System, was part of the in-service cadre in the school year 1984- 1985. Ms. Ramey holds a degree in elementary education and a master's degree in administrative supervision associated with the educational field. Among her duties was providing assistance to beginning teachers, to include Petitioner. From August 30, 1984 through April 1, 1987, Ramey visited Northshore Elementary 38 times and held eight workshops related to assertive discipline, two of which were attended by the Petitioner. Ms. Ramey found that the Petitioner had problems with instructional organization. If the teacher is sufficiently organized, according to Ramey, student disciplinary problems will not prohibit the teacher from performing his or her duties. She made a specific review of the Petitioner's circumstance at the instigation of Ms. Brewington. By Ms. Ramey's observations, the other beginning teachers who had been assigned to the Northshore Elementary School for the school year 1984-1985 did not experience the problems about student discipline to the degree that Petitioner did. Ms. Ramey gave materials to the beginning teachers at the workshops on assertive discipline and all teachers obtained those materials whether or not they attended the workshop meetings. Classroom tips were given to the teachers on dealing with problems with the students. Ramey saw the Petitioner 31 times in the school year in question. When dealing with the teachers in a one-on-one relationship, twenty to thirty minutes were spent by Ramey in each of these sessions. Petitioner continued to struggle with the problems in her classroom, even after making her best attempts at trying to cope with the situation. During this time, Petitioner talked to Ms. Brewington and Ms. Ramey about her need for assistance. Petitioner was particularly concerned that Ms. Brewington was not doing her part to support the Petitioner in dealing in an effective way with the class disciplinary needs. Petitioner was very distressed about the situation in her classroom and experienced a change in her emotional outlook from normal limits to depression, lack of attention to her housekeeping duties and emotional upheaval to the extent of crying on numerous occasions. Petitioner had been treated by Dr. Edith Ortega, a primary care physician following her arrival in Jacksonville. Around the first of March, 1985, the Petitioner was suffering from a heart condition which had associated chest pains, she had shortness of breath and, as she describes it, felt drained of energy. Dr. Ortega referred the Petitioner to Dr. David A. Orea, a practicing psychiatrist, who undertook the treatment of the Petitioner for the period March 5, 1985 through August 19, 1985. In view of her illness, Petitioner applied for an extended leave of absence which Respondent granted. The extended leave request was for March 4, 1985 through the end of the year. While the Petitioner was on extended leave of absence, she was not paid. On March 8, 1985, in the company of Luann Bennett, president of the Duval Teachers United, which represents the interests of teachers on contract with the Duval County School Board, Petitioner met with Dr. Larry Paulk. Dr. Paulk at that time was the assistant superintendent for personnel. Their entreaties to Dr. Paulk concerned the classroom situation that the Petitioner was experiencing, especially in describing Ms. Brewington's shortcomings. Dr. Paulk was presented with a letter on that same date which offered written expression to the Petitioner's concerns. A copy of that letter may be found as Petitioner's exhibit 4 admitted into evidence. The summarizing position which the Petitioner stated in the correspondence was that she wished to be transferred elsewhere or be given some immediate assistance in her class which would manage the fights which were going on, as reported in the correspondence, averaging about three per day in recent times. The impression which the Petitioner and Ms. Bennett were left with was to the effect that Dr. Paulk would allow the Petitioner to transfer from her assignment if Dr. Orea felt that was necessary to address the Petitioner's medical condition. Succinctly put in writing by Ms. Bennett on the face of the Petitioner's exhibit 4, the March 8, 1985 letter, is the expression that Dr. Paulk said it was "...also possible, if doctor requests, probably can get transfer." Dr. Paulk, in his recollection of the conversation of March 8, 1987, saw it as being a discussion of the problems experienced by the Petitioner in dealing with her principal, Ms. Brewington, and the associated problem of the Petitioner's health. The conference was concluded with what Dr. Paulk saw as a proposal by Ms. Bennett that hypothetically if the Petitioner's doctor recommended the transfer would the school board allow for that transfer. Dr. Paulk told the Petitioner and Ms. Bennett that he needed a statement from Dr. Orea which would release the Petitioner from her extended absence or leave, because at the time of the interview the Petitioner was on extended leave and it would be necessary for the doctor to establish what conditions would be acceptable to allow the Petitioner to return to work. In that setting, Dr. Paulk recalls telling Ms. Bennett that he would consider a transfer assuming clarification by the treating physician, Dr. Orea. Dr. Paulk recalls that Petitioner and Ms. Bennett said that they would get the letter from Dr. Orea. Dr. Paulk in his experience is unacquainted with medical transfers such as requested by the Petitioner. This case to his knowledge was a matter of first impression. He is acquainted with medical transfers from one floor of a school to another to accommodate the needs of the teacher. Dr. Paulk was provided with a note or correspondence from Dr. Orea on March 14, 1985, indicating that it would be acceptable for the Petitioner to return to work on March 18, 1985, if she were granted a transfer from her present position. Dr. Paulk was uncertain what was meant by this correspondence in terms of exactly where the Petitioner should be placed if removed from her present classroom setting. Dr. Paulk discussed this what he considered to be the vague recommendation by Dr. Orea in a conversation with Ms. Bennett. At Ms. Bennett's suggestion, Dr. Paulk spoke with Dr. Orea on March 18, 1985. Prior to discussing the situation with Dr. Orea on March 18, 1985, Dr. Paulk had talked to Mr. Haevener about the propriety of the Petitioner's assignment to Northshore Elementary. Dr. Paulk was interested in knowing why the Petitioner had been placed at that school. At that time Haevener indicated that Dr. Paulk should know that Petitioner had been divorced from a black male. In this connection, Dr. Paulk says he had no knowledge of the fact that Petitioner and her former husband had a biracial son until a point in time at which the Petitioner had brought her claims of discrimination, and a preliminary hearing was held in front of the Florida Commission on Human Relations, which occurred subsequent to the end of the 1984-1985 school year. The school year ended in June, 1985. Petitioner spoke to Haevener some time following his March 8, 1985 meeting with Petitioner and Ms. Bennett. In conversation with Dr. Orea, Dr. Paulk felt compelled to ask Dr. Orea about the significance, if any, of the Petitioner having been a party to a biracial marriage, given that the Petitioner was a white female in a predominately black school with a black principal. Dr. Paulk was concerned about race relations. Dr. Paulk says that not having been told of the existence of a biracial son before this discussion with Dr. Orea, he has no recollection of telling Dr. Orea anything about the biracial child. Dr. Paulk recalls that Dr. Orea indicated that he had no knowledge of any biracial marriage and that, from Dr. Paulk's recollection, concluded the discussion on that topic. Dr. Paulk felt that Dr. Orea was still vague about where the proper placement might be for the Petitioner other than to say anywhere but Northshore Elementary. Dr. Orea, in his recollection of the conversation of March 18, 1987 with Dr. Orea, recalled that it was one in which Dr. Orea told Dr. Paulk that he was not at liberty to discuss the therapy sessions with the Petitioner. He nonetheless stated that the Petitioner's situation, from the point of view of Dr. Orea, was one in which the relationship with a black man had no bearing on the stress or depression Petitioner was experiencing. The stress, in Dr. Orea's opinion, was that brought on by working conditions which Petitioner was subjected to. In his affidavit given to the Florida Commission on Human Relations, a copy of which may be found as Petitioner's exhibit 7 admitted into evidence, and which Dr. Orea confirmed in his telephone testimony at the formal hearing, he states that Petitioner's divorce from a black man had no relevance, and it would not matter whether the former husband was black or not. Dr. Orea felt that the troublesome students, regardless of their race, could be a significant source of stress and might through that situation precipitate depression on the part of Petitioner. He did not feel that there was any relationship between the Petitioner's private life and the stress she experienced at Northshore Elementary. His principal concern about the health of this patient was to the effect that she be transferred to another school and to do otherwise would be detrimental to her health. He emphasizes that on March 14, 1985, he had made the recommendation for transfer and had released her to go back to work if transferred. Dr. Orea recalls that Dr. Paulk mentioned the biracial son in the conversation. Dr. Orea states in his affidavit and confirms in his testimony at hearing that he did not believe that the problems the Petitioner experienced were associated with the fact that she had a biracial son or were related in any particular way to the race of her husband, the students in her class, or the principal at the school. Dr. Orea has no specific recollection of whether he discussed Petitioner's marital status with her, although he would normally find this information out in dealing with a patient. Whether Dr. Paulk is correct in his recollection that the matter of the biracial son was not discussed with Dr. Orea, or that Dr. Orea, in his reference to discussing the biracial son is correct, does not matter. For the record, Dr. Paulk is found to have mentioned the biracial son in conversation with Dr. Orea. In either event Dr. Paulk, by those actions taken in discussing the Petitioner's situation with Dr. Orea and other actions which he would take in this matter, were not intended to and did not discriminate against the Petitioner in any fashion related to her race, the race of her former husband or son or related to her marital status. Dr. Paulk was merely expressing an interest in seeing if there was some underlying racial connotation in the Petitioner's reluctance to return to her classroom at Northshore Elementary School, based upon her background and her present circumstance within that school. In the conversation between Dr. Paulk and Dr. Orea, Dr. Paulk asked Dr. Orea whether the placement should be at a black school or a white school. Dr. Orea had no special placement in mind other than removal from Northshore Elementary or any similar setting. Dr. Paulk also spoke with Ms. Bennett about whether she felt that the Petitioner's situation was one involving a racial problem, but he does not recall receiving any definitive response from Ms. Bennett. Dr. Paulk, apparently beyond the conversation with Dr. Orea on March 18, 1987, decided that the main difficulty experienced by the Petitioner had to do with her problems with the principal, Ms. Brewington. Dr. Paulk thought that Petitioner could return to school the following year, and that the replacement of Ms. Brewington with a new principal would solve the problems that the Petitioner had. Dr. Paulk was reluctant to receive the Petitioner back to school in the school year 1984- 1985 because of what he perceived to be the unwillingness of Dr. Orea to give an unconditional release of the patient from treatment. In her testimony, Ms. Bennett said that she spoke with Dr. Paulk in a conversation in which Dr. Paulk stated that Dr. Orea had led Dr. Paulk to believe that the problem Petitioner was experiencing was racially based, and that therefore, it would not be acceptable to transfer the Petitioner to a new school because Petitioner, through her history with her husband, was having a reaction to black people, children included. Ms. Bennett testified that this was a change in the position that Dr. Paulk had held concerning Petitioner's transfer. Having considered everyone's testimony, it is concluded that Ms. Bennett misapprehended Dr. Paulk's statement that the Petitioner's problem was racially based in describing Dr. Paulk's interpretation of Dr. Orea's remarks. Nonetheless, Dr. Paulk did tell Ms. Bennett, following his conversation with Dr. Orea, that the Petitioner would have to return to her school and might have the possibility of transfer at some later date. Ms. Bennett also identified that Dr. Paulk told her that Petitioner had been married to a black man and had a biracial son. Again, even though the remarks were made by Dr. Paulk, they are not discriminatory. In conversation with Ms. Bennett, Dr. Paulk stated that the policy of the board was to not allow an arrangement which would accede to an outcome which had racially based motives, reference Petitioner's transfer request. When the Petitioner discovered that she would not be transferred, her condition reached a level where it was necessary to hospitalize her for her stress in the period March 21, 1985 through April 5, 1985, under the care of Dr. Orea. From that point until August 19, 1985, the Petitioner was seen on an out- patient basis. On July 25, 1985, Dr. Orea wrote to Dr. Paulk to further describe his opinion of the Petitioner's health in which he sets forth that the Petitioner has major depression related to stress suffered at work and not related to racial issues. He goes on to indicate that the Petitioner could have been able to work from March 18, 1985 and forward, and that the Petitioner could function in a normal classroom as a teacher as long as it was not at Northshore nor in any other school where there were severe disciplinary problems. A copy of this correspondence may be found as Petitioner's exhibit 6 admitted into evidence. On March 26, 1985, the Respondent wrote to the Petitioner to ascertain the Petitioner's intentions concerning her future affiliation with the school system. This document was received by the Petitioner on May 3, 1985. It outlined three alternatives. She could request to return to her present school, Northshore Elementary School, for the upcoming school year 1985- 1986, she could request an additional year leave of absence, if entitled, or she could resign her position effective June 14, 1985. A copy of this item as executed by the Petitioner may be found as Respondent's exhibit 1 admitted into evidence. Petitioner signed this item on May 9, 1985 and in making an election instead of noting her return to the classroom assignment that she held before, attempted to gain a transfer to a school in the Ortega area for any grades K-5, preferably K, 1 or 2. She also noted her education as holding a master's degree in early childhood. This item was received back by the Respondent on May 13, 1985, in its personnel office. This form may not be used for purposes of requesting voluntary transfer to a different school. A copy of a memorandum concerning voluntary transfer may be found as Respondent's exhibit 6 admitted into evidence. It pertains to the school year 1985-1986 and dates from April 1, 1985 and is addressed to all teachers within the Duval County School System. It points out that the request would be considered upon asking for four schools in order of preference and one of eight geographical zones. It alerts the faculty members to the fact that a Federal Court order mandates the staff ratio of approximately 70 percent white to 30 percent black teachers in each school. It describes the fact that seniority will control in those instances where more than one applicant has satisfied other related criteria. Petitioner was without a great deal of seniority, having just affiliated with the Duval County School System the year before. The arrangement also contemplates the need to be approved by the receiving principal. This process is in accordance with the agreement between the Duval Teachers United and the Duval County School Board. The area described in the unauthorized form which the Petitioner wished to use to transfer is one highly sought after and there is very little likelihood that the Petitioner would have been able to voluntarily transfer into the Ortega area. She says she had sought that area not because of any express appreciation of the high desirability of that area as a teaching environment, but based upon the close proximity of her residence to that area. The form of transfer which the Petitioner sought was one that has been described by Ms. Bennett as outside the agreement between the teachers' union and the Respondent, that cannot be handled by ordinary means. As described before, the typical transfer for health-related reasons that had been done in the past related to changes in location within the building to accommodate the teachers' needs. Given that the Respondent was not satisfied about exactly what setting would be an acceptable arrangement for the Petitioner from the point of view of the Petitioner's treating physician, Dr. Orea, and given that the Respondent had determined to remove Ms. Brewington as principal at Northshore Elementary and substitute Cynthia Anderson at that school for the school year 1985-1986, no special arrangement was made to accommodate the Petitioner by transfer. The decision to send Petitioner back into that setting was made by Mr. Haevener and Dr. Paulk, following discussion on two or three occasions. This decision on placement was further confirmed in a second notice of August 6, 1985, a copy of which may be found as Respondent's exhibit 4, served upon the Petitioner, inviting her to return to Northshore Elementary. Having not heard from the Petitioner, the Respondent sent a notification on August 22, 1985, by certified mail, a copy of which may be found as Respondent's exhibit 8 admitted into evidence, indicating that the Respondent found the Petitioner to have declined the right to an employment contract for the school year 1985-1986. Facts in the case lead to the conclusion that notwithstanding the format which Petitioner utilized in attempting to locate in a school in the Ortega area, she would not have been entitled to that assignment. Ms. Ramey and the new principal, Ms. Anderson, point out the fact that Northshore Elementary School was similar to other schools in the Duval County School System. Ms. Anderson in particular points out that the disciplinary problems were about the same at Northshore Elementary, although the facts that more students were there and it was a predominantly black school may have made the circumstance worse. Ms. Anderson, by her testimony, related her attempts at improving the disciplinary situation at Northshore in the school year 1985-1986 and established the success that was achieved in that endeavor. When she arrived at the school, the school had approximately 1,100 students and 65 teachers of which 50 teachers were returning staff members. On balance, her description of the events of the school year 1985-1986 indicate that the Petitioner would have returned to a much better environment as it addressed her primary concern of support within the classroom given by the administration. Petitioner served her probationary period and was issued a permanent teaching certificate. Not being satisfied with the arrangements Respondent made to address her situation, Petitioner elected to leave Jacksonville, Florida, and to go and live with her mother in Boca Raton, Florida. She began teaching kindergarten in Boca Raton, Florida, in September, 1985 and continues as a teacher. She has overcome her stress-related illness. Given the constraints on the Respondent concerning the teacher placement and the need to honor the conditions of seniority, the faculty ratio between whites and blacks and the expectation that teachers must confront the stress inherent in teaching in schools such as Northshore Elementary, the response which did not allow for a transfer is not discrimination against a handicap, even if emotional stress is considered to be a handicap.
The Issue The issue for determination is whether excessive absences constitute just cause to terminate Respondent's employment.
Findings Of Fact Petitioner employed Respondent at Skyline Elementary School in Lee County, Florida, from August 25, 1997, until May 22, 2006, when Petitioner suspended Respondent without pay and benefits. Respondent was a member of the food service defined in Subsection 1012.40(1)(a), Florida Statutes (2005), as an educational support employee. Petitioner proposes to terminate Respondent from her employment due to excessive absences during the 2004-2005 and 2005-2006 school years. Petitioner alleges that the absences affected Respondent's ability to carry out the essential functions of her position and that Respondent received two reprimands for excessive absences prior to the proposed termination. The term "excessive absence" is defined in Section 9.015 of the collective bargaining agreement (CBA) between Petitioner and the Support Personnel Association of Lee County1 to mean: three consecutive days of absence without medical verification in a case where abuse is suspected and/or three (3) unauthorized absences in a twelve (12) month period and/or a continued pattern of absence that affects an employee's ability to carry out the essential functions of his/her position. Art. 9, § 9.015, Petitioner's Exhibit 11 (P-11). Many of the material facts are undisputed. Respondent was absent for 47 days during the 2004-2005 school year and 35 days during the 2005-2006 school year. Petitioner does not suspect abuse in connection with any of the absences within the meaning of Article 9, Section 9.015.a. of the CBA. All of the absences were caused by medical conditions identified in the record as diverticulitis and gout. Respondent did not have three consecutive days of absence without medical verification. Whenever requested, Respondent consistently provided a doctor's note for her absence from work. The admitted absences that exceeded Respondent's accrued leave were unauthorized within the meaning of Article 9, Section 9.016. The relevant portion of the CBA defines the term "unauthorized absence" as: Failure of an employee to give notice of absence may be regarded as an unauthorized absence. . . . Absence in excess of accrued sick and personnel leave, when such absence is not specifically authorized in advance. . . . Art. 9, § 9.016, P-11. None of the absences were unauthorized within the meaning of Article 9, Section 9.016a. Respondent consistently provided notice of absence to her employer, frequently before her work shift began at 7:00 a.m., much to the displeasure of her supervisor. Respondent was absent for 28 days in excess of her leave during the 2005-2006 school year. The 28 absences were not authorized in advance, were unauthorized absences within the meaning of Article 9, Sections 9.015b. and 9.016b., and the excessive absences constitute grounds for "appropriate discipline" authorized in Article 9, Sections 9.011 and 9.014. Respondent disputes that any of her absences affected her ability to carry out the essential functions of her position within the meaning of Article 9, Section 9.015c. Respondent also disputes allegations that her absences during the 2004-2005 school year can be considered in this proceeding, that she has any prior discipline, and that termination is "appropriate discipline" within the meaning of Article 9, Sections 9.011 and 9.014. A preponderance of evidence does not support a finding that the 47 absences during the 2004-2005 school year are grounds for termination or that they affected Respondent's ability to carry out the essential functions of her job during that school year. During the 2004-2005 school year, Respondent's school principal recommended on March 24, 2005, that Respondent be rehired for the 2005-2006 school year. The principal signed Respondent's 2004-2005 Performance Assessment scoring Respondent at an "effective level" of performance in all 16 areas targeted for assessment. The Performance Assessment rated Respondent as "punctual in attendance" and "exhibits dependability." The area on the Performance Assessment reflecting "Attendance" and "Total hours absent" is blank. Petitioner employed Respondent for the 2005-2006 school year without conditions and without probation. A preponderance of evidence does not support a finding that the 28 unauthorized absences during the 2005-2006 school year affected Respondent's ability to carry out the essential functions of her position. The principal views Respondent's absences as a "health issue, it was not a work issue." He describes Respondent as a "good worker." The testimony of Petitioner's two witnesses that was intended to provide hearsay testimony of Respondent's peers at work was neither credible nor persuasive. A preponderance of evidence does not support a finding that two prior actions intended by Petitioner to be letters of reprimand evidence prior disciplinary action. Petitioner issued each purported letter of reprimand during the 2005-2006 school year,2 but neither letter included a notice of rights that provided Respondent with a clear point of entry into the administrative process. Article 7, Section 7.09 of the CBA defines the term "discipline" to include a reprimand and provides in relevant part: Employees subject to disciplinary action as specified in Articles 7.091-7.093 shall be entitled to appeal through the grievance process as set forth in Article 5 of the collective bargaining agreement. Article 5 of the CBA describes an extensive grievance process that may culminate in arbitration.3 However, arbitration is not the exclusive procedure of review for proposed discipline. None of the grievance procedures may be construed to deny rights otherwise guaranteed by law.4 Petitioner utilizes the administrative process available at DOAH in connection with challenges to proposed discipline. Neither of the alleged prior reprimands complied with material procedural protections in the CBA. Contrary to Article 7, Section 7.09, Petitioner's Department of Personnel Services never conducted an informal pre-determination conference to review the allegations against Respondent and to afford Respondent an opportunity to respond. Petitioner did not provide Respondent with two days' advance notice to have a representative accompany her to a pre-determination conference where she would have been permitted to present relevant information. The director of personnel did not make a recommendation of disciplinary action to the superintendent. Respondent was sick and not at work on February 21, 2006, and Petitioner never delivered the letter to Respondent. Respondent's supervisor submitted the matter to the executive director of human resources initiating the process for this proposed termination of employment. However, Respondent never had an opportunity to grieve the second "Letter of Reprimand," and Petitioner submits the second "Letter of Reprimand" as evidence of prior discipline that supports the proposed termination of employment. The CBA does not prescribe termination of employment as required discipline for unauthorized absences. The "appropriate discipline" in this proceeding is properly determined by reference to the severity of Respondent's misconduct and any aggravating or mitigating circumstances. Evidence of aggravating circumstances is limited to the excessive frequency of absences. The purported prior "Letters of Reprimand" were issued without a clear point of entry, in violation of relevant procedural protections in the CBA, and the trier of fact does not consider the purported letters of reprimand for the purpose of determining the appropriate discipline. Several mitigating factors are relevant to a determination of "appropriate discipline." Petitioner employed Respondent for nine years. Respondent has been a good worker during that time. The unauthorized absences are attributable to medical conditions rather than misconduct. Respondent has been successfully treated for her medical condition, her present health is good, and there is no evidence that the unauthorized absences will persist after her current suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order suspending Respondent's employment from May 22, 2006, through the date of this Recommended Order. DONE AND ENTERED this 6th day of November, 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 6th of November, 2006.
Findings Of Fact Petitioner, Grey C. English, has worked for DOT, primarily in its Okeechobee, Florida office, for approximately seven years. At the time in question, he was serving as an HMT II, crew leader, with job duties that included various equipment and machinery maintenance and general road work. In some cases he served as crew leader and in other cases, he was merely a member of the crew. In April, 1986, Mr. English filed a charge of discrimination against DOT before the Florida Commission on Human Relations alleging that he had been passed over for promotion and discriminated against therein because of his race (Black). Part of the allegation involved Mr. R. C. Roberts, who concurred in the selection of another applicant over the Petitioner when he knew there was an irregularity in the selection process. Petitioner presented this evidence in an effort to discredit Mr. Roberts' testimony for Respondent here on the basis of bias, but was unsuccessful. In January 1987, Petitioner and DOT entered into a settlement agreement which disposed of the Petitioner's charge of discrimination without assessing blame, but as a result of which, Petitioner was paid the sum of $2,656.40. This sum was paid by state warrant dated February 13, 1987 which, it is concluded, was received by Petitioner several days later. Attendance documents maintained by DOT reflect that on February 13, 1987, which was a Friday, Petitioner was on authorized leave without pay. On February 16, 1987, the following Monday, he worked 7.3 hours and was authorized leave the remainder of the time. Between Tuesday, February 17 and Thursday, February 19, 1987, Petitioner was present for duty performing safety duties. However, on Friday, February 20, 1987, he was placed on unauthorized leave without pay and remained in that status through March 19, 1987. Michelle L. King, Petitioner's immediate supervisor, relates that on February 19, 1987, when Petitioner came to work, she advised him where his work site would be and with whom he would be working. According to Ms. King, when so advised, Petitioner indicated he would not work with Mr. Mills, apparently one of his prospective co-workers, and walked off the job. Shortly thereafter, Ms. King received a phone call from Petitioner's mother who advised her that Petitioner's grandfather was seriously ill and in the hospital and Petitioner's presence was needed at the hospital to assist in caring for him. When Ms. King immediately went to look for Petitioner, she found him sitting in his car approximately one half block from the DOT yard where she advised him of the message she had received. At this point; Petitioner immediately left the area presumably to go to the hospital. According to Ms. King, he did not ask permission to leave then nor did he ask for any time off during the succeeding days for which he was marked in an unauthorized absence status. During that entire period, however, she did not try to reach him by phone or in person even though she had his phone number on record in the office and knew where he lived. She admits she made no effort to reach Petitioner to tell him his job was in jeopardy because she felt, he had walked off the job and was not, therefore, entitled to that consideration. She merely reported the Petitioner's status to her supervisor, Mr. Lanier, and considered the matter closed. Mr. Lanier indicates he made no effort to contact Petitioner either. Petitioner admits that he was sitting in his car with the mechanic who repaired it; away from the job site, when he was advised of his grandfather's illness. He contends he had left the job earlier that morning because he, himself, was ill, not because he did not want to work with Mr. Mills and he contends that his continued absence from work was occasioned by the need for him to remain with his grandfather in the hospital for the period of time of his absence because there were no other family members available to do so. He contends he stayed with his grandfather, who was ill with and ultimately died of cancer, the entire time. There is no evidence of record, however, to indicate that Petitioner requested or was placed on sick leave when he left work on the morning in question. Petitioner also claims that on one occasion several days after February 19, 1987, he met Ms. Kings, Ms. Chapman, and Mr. Lanier, another supervisor, in a local restaurant during the lunch hour. At that time he told them that he would have to have some time off for a few days because of his grandfather's illness but that he would stay in touch. Petitioner contends that this absence was approved by either Mr. Lanier or Ms. King and he was given no instructions to call in or take any other action regarding his absence. The meeting is confirmed by Mr. Branchaud, a co-worker, who observed Petitioner in a conversation with Mr. Lanier but he cannot say for certain what the specifics of the conversation were. Both Mr. Lanier and Ms. King deny any such meeting took place and this is confirmed by Ms. Chapman. Ms. King and Ms. Chapman, as well as Mr. Lanier, though all employees of DOT, have nothing to gain by telling an untruth or giving perjured testimony regarding the situation involving Petitioner. Consequently, it is found that Mr. English did not get permission from either Mr. Lanier or Ms. King to be absent, and that, therefore, his absence between February 19, 1987 and March 10, 1987 was unexcused. During the period of Petitioner's absence, on March 4, 1987; a DOT official, by certified letter, advised him of his continued absence without approved leave and directed him to report to his duty section by 8:00 am on March 9, 1987 under pain of termination for a failure to comply. The return receipt executed by someone reflecting Mrs. Grey English indicates that the letter was received at Petitioner's home address in Okeechobee on March 11, 1987, one day after the action was taken to terminate him. Petitioner contends that he did not receive that letter and that on the date in question, there was no Mrs. Grey English. He was living at that residence, he contends, with his mother whose name is not English. No other female at that address bore the name Mrs. Grey English. The girl friend who he sometimes identified as his wife was not living at his address at the time the letter was received and did not sign for it in his behalf. Be that as it may, the letter was receipted for by an adult at the Petitioner's address. He did not, however, thereafter comply with the terms of the letter and termination action was taken by DOT on March 10, 1987 when the District Director sent him a letter notifying him of his termination by certified mails return receipt requested. Petitioner, as was stated previously, denies any intention to abandon his position and denies having received any letter of warning. He was, however, fully aware of the department's procedures for obtaining leave authorization and obviously failed to take any of the necessary steps to secure that authorization, instead relying on a purported casual meeting with his supervisor at a restaurant where he supposedly received verbal permission to be absent. This is not persuasive. His credibility, in addition, is somewhat suspect in that he has already demonstrated his willingness to falsify official documentation if it suits his purpose. Petitioner admits that several years prior to the instance in question, he, though not married, filled out certain official documentation for DOT claiming his girlfriend to be his wife for the purpose of putting her on his record as beneficiary of his insurance with the department. He claims he was advised by some official of the department to do this but does not indicate who this individual was. Even if that were the case, he recognized at the time that the lady was not his wife and was nonetheless willing to falsify documentation if it was to his benefit to do so. Consequently, his willingness to be less than candid when it suits his purpose to be so has been established and in this case, the better weight of the evidence establishes clearly that notwithstanding his protestations to the contrary, he walked off the job without authority and made no effort to take any action necessary to preserve his employment status. It is, therefore, concluded that he did abandon his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Grey C. English, be terminated from employment with the Department of Transportation effective March 11, 1987. RECOMMENDED this 18th day of September, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1931 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1-2. Accepted and incorporated in Findings of Fact 1. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10, except for the last section thereof relating to a restatement of his testimony at the hearing, which is not a Finding of Fact. Rejected as contrary to the weight of the evidence. Accepted. Rejected. Petitioner was not terminated for excessive absenteeism. The respondent was considered to have resigned his position with the Department of Transportation and the rules regarding disciplinary termination are not relevant to this situation. 9-12. Irrelevant. 13-17. Rejected as not Finding of Fact. By the Respondent Accepted. Accepted and incorporated in Findings of Fact 9. 3-4. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 9. 8-9. Accepted. 10-13. Irrelevant. Rejected as not a Finding of Fact. Accepted. COPIES FURNISHED: Isidro Garcia, Esquire Florida Rural Legal Services, Inc. 572 S.W. 2nd Street Belle Glade, Florida 33430 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether just cause exists to terminate Respondent, Donna Holloway's ("Holloway"), employment with Petitioner, Manatee County School Board (the "School Board"), based upon: Violation of Florida Administrative Code Rule 6B-4.009(3), specifically, misconduct in office so serious as to impair the teacher's effectiveness; Violation of School Board Policy 6.2(2)(B)(2) regarding excessive absences; Violation of Florida Administrative Code Rule 2B-4.009(4) and policy 6.11 concerning gross insubordination; Violation of rule 6B-1.006(3)(a) concerning a teacher's duty to protect students; Violation of rule 6B-4.009(1)(a) regarding repeated failures to perform duties; and/or Violation of Policies and Procedures for Students with Disabilities, Part II, Section D.
Findings Of Fact The School Board is responsible for hiring, firing, and overseeing all employees at the School, an elementary school within the Manatee County school system. The School has grades K through 12, including ESE classes at various grade levels. At all times relevant hereto, Holloway was employed at the School, having been hired initially in 2003 (the School's first year of operation) as a media specialist. She was then moved to a third-grade classroom in the 2008-2009 school year. At about the time of the Thanksgiving holiday in 2009, Holloway was transferred to an ESE pre-kindergarten (EPK) class the School had just been assigned by the District office. Holloway was one of the few teachers at the School who was already certified for EPK, so she was a good fit for the position. There were from ten to 15 three-to-five-year-olds in the class initially. Holloway's Performance Issues Holloway was told there were complaints made by other teachers against her while she was working as a media specialist. No specific evidence of those complaints was presented at the final hearing in this matter. Upon her transfer to the third-grade class, her principal, Mr. Holbrook, and then the subsequent principal, Mennes, advised Holloway that some additional complaints had been lodged against her. Again, no evidence as to specific complaints was presented at final hearing. Beginning in the 2009-2010 school year, specifically just prior to Holloway's transfer to the EPK class, Holloway began to receive written directives and reprimands. In October 2009, Holloway received a written reprimand, including an admonishment about not leaving her classroom during instructional time. Holloway was still teaching her third-grade class at that time. Then, after her transfer to the EPK class, she received a letter of reprimand in December that addressed complaints made by parents about Holloway's propensity to leave her classroom during instructional time. Holloway admits that she would often leave her classroom during the school day. Sometimes she was walking with students to provide a "teachable moment" due to the student's particular needs. Other times she was taking care of business in lieu of a regularly scheduled planning period. Holloway also admits that her absences from the classroom were contrary to the directive given her by the principal. Excessive Absences Holloway was assigned to the EPK class again for the 2010-2011 school year. Almost from the first day of that school year, Holloway began to receive admonishments about her work performance. On October 18, 2010, Holloway was reminded by her principal that she had not worked a full week since the start of the school year. She had missed the Monday and Friday of the first week of school. The absences created problems for the School, especially when a substitute teacher had to be arranged on short notice. When a teacher finds they are going to be absent, it is incumbent upon them to notify their school as early as possible in order for a substitute teacher to be found. There is an automated telephone system (called SUBS) that is supposed to allow a teacher to timely and effectively report their impending absence. Holloway would often experience problems using the SUBS system. When that occurred, she would instead leave telephone messages for various people in the School administrative offices. Many of her phone messages were considered by the principal and others to be sarcastic, rude, or unprofessional; Holloway described the calls as playful or done in a kidding fashion. The School administration and Holloway disagree as to whether Holloway timely arranged for substitutes when she was going to be absent. Holloway expressed frustration that the SUBS system she was supposed to use did not always work. The school staff expressed frustration that Holloway would not always provide adequate notice that she was going to be late or absent, causing problems in finding suitable substitutes. In December 2010, Holloway was again counseled concerning excessive absences during the school year. None of Holloway's absences, however, were unexcused. Holloway recognized the importance of being at school as often as possible for the betterment of her students. However, she experienced a number of health problems that apparently caused her to be absent more frequently than other teachers.1/ Holloway had some health issues and missed numerous days during each of the school years in which she taught at the School. She suffered from and was on medication for anxiety and a depression disorder and also suffered from migraine headaches. The classroom environment exacerbated her depression. For the 2008-2009 school year, Holloway was absent from work 29.6 days, excluding Family Medical Leave Act (FMLA) absences, or about 14 percent of the school year. In 2009-2010, Holloway was absent 24.5 days (excluding FMLA), about 12 percent of the school year. The 2010-2011 absences were 22.4 days (excluding FMLA days), about 11 percent of the school year. Holloway was then absent two of the first five working days of the 2011-2012 school year. Despite the large number of absences, none of them were unexcused. Documentation Status and Performance Probation After the winter break of the 2010-2011 school year, Holloway was given a letter saying her performance had been unsatisfactory and that she was being placed on Documentation Status, a program that would include monitoring Holloway's performance in various delineated areas. She was admonished to improve in the areas of classroom management, attendance, organization, and planning. While on Documentation Status, Holloway was advised, via letter from her principal, that she was still not remaining in the classroom with her students. The principal provided Holloway with specific break, lunch, and planning period times, and she was instructed to otherwise remain in the classroom. At about the same time, Holloway's teacher's aide began documenting all the times during the school day that Holloway would be absent from the classroom. Her absences from the classroom continued to be excessive despite the directive from her principal. Holloway was, however, aware that it was important for her to be in the classroom so as to provide consistency and continuity for the students. Holloway's access to a reasonable break period and teacher planning period was an issue throughout her tenure as the EPK teacher. At first Holloway did not have a designated planning period and was expected to do her planning duties during the day as time permitted. Many teachers had planning periods during their students' lunch period, but the special needs children in Holloway's class needed her to be with them at lunch, at least at first. After additional staff was assigned to her room, Holloway was able to leave her students in the care of her paraprofessional aides during the lunch period. Holloway was also offered the option of doing planning during the children's nap time. The nap time lasted approximately two hours, but not all students would be asleep for that entire period. During nap time, the classroom would be dimly lit, and it was important to maintain silence. Those conditions did not allow for an optimal planning period for Holloway. Ultimately, the principal established the definitive time for Holloway to take her break, eat her lunch, and engage in planning. The times were set forth in a written directive issued by the principal on March 3, 2011. Holloway did not particularly approve of the times set forth in the directive and suggested an alternative to the principal, who did not respond.2/ On May 3, 2011, Holloway was placed on Performance Probation. Performance Probation is a program established for the purpose of trying to improve a struggling teacher's performance to stave off the possibility of termination. Holloway was provided with a statement as to various areas of unsatisfactory performance and given until October 7, 2011, i.e., 90 days, to correct her deficient practices. Holloway acknowledged receipt of the Performance Probation document. The areas of unsatisfactory performance identified by the principal were: Planning, Management of Student Conduct, Instructional Organization and Development, Presentation of Subject Matter, Communication, and Employability. Specific issues were listed under each of those areas, and Holloway was given direction as to how she should improve. The Individual Education Plans In addition to the areas of concern listed in the Performance Probation document, Holloway was also struggling to complete Individual Education Plans ("IEPs") for her ESE students. Every ESE student must have an IEP each year, establishing what the student's needs are and how they are going to be addressed by the school. The IEPs are mandated by federal and state law and are an integral part of an ESE's educational program. The IEP is an important factor in determining the amount of funding a school will receive for particular ESE students. The higher the student's needs, as documented in the IEP, the more funds the school will expect to receive. At the conclusion of the 2009-2010 school year, Holloway had not completed all the IEPs for her 11 ESE students. She was provided some assistance and guidance by an ESE specialist, but at the end of the school year, her IEPs were not finished. In order to avoid any penalty or sanction, the ESE specialist completed the IEPs for Holloway. When the 2010-2011 school year started, the ESE specialist provided additional assistance to Holloway. In fact, the specialist undertook the scheduling of conferences with the IEP team, the student, and the parents. In late November 2010, Holloway requested that she be allowed to retain the role of planning the conferences and completing the IEPs. The specialist conferred with the principal and Holloway's request was granted. After that, the specialist would do periodic reviews of Holloway's IEP files to make sure they were being done properly and timely. On May 25, 2011, the specialist provided Holloway a letter outlining all items that were missing from her IEPs as the school year was winding down. One of the omissions was a matrix for each student. The matrix is a document that outlines the student's needs and the funding necessary to meet those needs, e.g., use of a speech therapist, assisted listening devices, etc. Holloway told the ESE specialist that she (Holloway) thought matrices only had to be done every three years. The specialist advised Holloway that according to the newly-created policies by the School Board, the matrices had to be done every year, especially if the student was undergoing any changes and particularly if a change of school assignment was involved. The matrices should be updated within two weeks of the implementation or alteration of an IEP. Holloway denies being provided prior notice about the change in the policy relating to matrices. However, she was ultimately made aware of the District policy and that matrices were due for all of her ESE students each year. On June 10, 2011, the date the IEPs were supposed to be complete, the ESE specialist followed up with another letter, thanking Holloway for what she had accomplished thus far, but pointing out a number of items still missing from the IEPs.3/ In addition, the IEP files were not in order, were not secured, and had duplicate pages. Holloway explained the duplicates as being drafts or work in progress. There is no prohibition against having duplicates in the file until the time the final IEP is prepared. Due to the confidential nature of materials in the IEP files, at the end of the school year all the students' files were placed in a secure storage area within the School. Holloway was advised that the files were locked up in storage, so she believed she never had an opportunity to complete the IEPs. However, there is no indication that Holloway ever asked for access to the files so that she could complete the IEPs, nor did she ask her principal for additional time to complete the IEPs.4/ Once the files were placed in storage around June 15, 2011, Holloway did not access them again. The ESE specialist did not complete the IEPs in storage at the end of the 2010-2011 school year as she had completed the prior year's IEPs. She does not know if the IEPs for the 2010-2011 school year were ever completed. She does know that as of June 10, 2011, the day the IEPs were supposed to be finished, there were still a number of outstanding items on six of the students' IEPs. On June 17, 2011, the principal notified Holloway via email that her IEPs and matrices still needed to be completed. Holloway did not comply with that directive. Holloway maintains that she did not have ample time, i.e., a regular planning period, to complete her IEPs. Her testimony in that regard is not credible. According to Holloway, it would take about 45 minutes to complete an IEP, and she ignored other responsibilities while trying to complete the IEPs, but still did not finish them. She was given specific instructions and assistance by the ESE specialist over a period of time, and it seemed that Holloway was working on IEPs throughout the year. Thus, saying she did not have time to complete them is inconsistent with her other testimony. The Check List The day after Holloway was placed on performance probation, May 4, 2011, an end-of-year calendar and end-of-year check list (the "Check List") was distributed to all teachers and other staff. The Check List enumerated all items each teacher must have completed "before the luncheon on June 10th." The Check List included such items as returning textbooks and instructional materials, completing report cards and attaching students' pictures to the cumulative file copies, turning in walkie-talkies and chargers, stacking chairs, removing items from windows, and clearing off desk tops. The Check List also provided all pertinent dates for end-of-school activities and events. On June 11, 2011, Mennes did a walk-through of the School, checking each classroom to make sure the Check List items had been completed. Holloway had not turned in her Check List on June 10, 2011, as ordered; she was the only teacher at the School not to do so. When Mennes went to Holloway's classroom, he found that the room had not been cleaned. Rather, it was in disarray, and there was paper covering the windows with a note saying, "Sorry, not ready for you to see my mess." Holloway had not requested additional time to clean her room, although it is unclear whether Mennes would have granted such a request. Holloway asserts that she did not have time to clean her room and complete the Check List, because she was concentrating on completing the student IEPs that were past due. Those IEPs, however, were not completed either. According to Holloway, she had not completed her IEPs because she did not have an acceptable planning period giving her sufficient time. Holloway's prescribed 40-minute planning period was during the time her students were napping, i.e., for approximately two hours after lunch. Nap time was not instructional time, so it was allowable for Holloway to be out of the room, leaving the students in the care of her aide or aides during that time. A caveat to that arrangement was that one of her students had behavioral problems. According to that student's behavioral intervention plan, there must be two adults in the room when he was sleeping. In approximately February 2011, a second aide was assigned to Holloway's class. When both aides were present, Holloway would have been free to leave the classroom to work on IEPs. However, she said that it was not easy to gather all the materials needed and move to another room when working on IEPs. If she stayed in the room to work on the IEPs in her classroom while the students were sleeping and her aide(s) watched the children, she would not have optimum lighting and it would have to be very quiet. Failure to Protect Students On August 22, 2011, Holloway was in her classroom attending to a student with behavior issues. An aide had taken the other children out to the playground area for recess. After Holloway completed her work with the behavioral student, she sent him out to the playground to join the others. Holloway says she radioed the aide on the walkie-talkie and received a short response indicating the aide understood the child was on the way. Holloway watched the child go up to the gate of the playground area. He stood there for a couple of minutes until Holloway told him to call out to the aide. Once he had done so, Holloway saw the aide's hand on the gate and turned and went back into the classroom. The aide does not remember getting a call on her walkie-talkie from Holloway. She remembers seeing the child and that he called out to her. When she opened the gate for the child, she looked around toward the classroom, but did not see Holloway in the doorway. Holloway would often leave her classroom during instructional times. This occurred so often that one of her aides began documenting all of Holloway's absences from class during the day. Mennes and others observed Holloway "wandering the halls" at times during the school day, sometimes accompanying a student and sometimes not. Holloway explained that she sometimes took students out of the class for a "teaching moment" that may involve outside stimuli. No specific examples were provided. Mennes issued a written directive advising Holloway not to be outside her classroom during instructional times. By her own admission, Holloway did not always follow that directive. Clearly, Holloway did not have a completely satisfactory experience at the School despite having no unsatisfactory evaluations during her tenure. Her tendency to be out of the classroom more frequently than other teachers (and more often than her principal desired), coupled with her personal health issues that resulted in numerous absences, did not place her in good stead with the School administration. Holloway seemed to make some efforts to comply with requirements of her position, but she seemed to fail frequently. Her inability to complete her IEPs, to complete her end-of-year Check List, and to remain in her classroom were unacceptable. Her absences affected the well-being of her students, and her insubordination concerning her principal's directives are "just cause" for the action taken against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Manatee County School Board, dismissing Respondent, Donna Holloway, from her employment for "just cause," as set forth above. DONE AND ENTERED this 27th day of March, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2012.
The Issue The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Petitioner employed Respondent as a food service worker at Lehigh Acres Middle School in Lee County, Florida (the school), from October 22, 1998, until August 2, 2004, when Petitioner suspended Respondent with pay and benefits. A food service worker is an educational support employee defined in Subsection 1012.40(1)(a), Florida Statutes (2004). Petitioner proposes to terminate Respondent's employment on the basis of facts alleged in the Petition for Termination dated August 11, 2004 (the petition). In relevant part, the petition alleges that during the 2003-2004 school year Respondent was guilty of excessive absences that affected Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015 of the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC agreement). During the 2003-2004 school year, Respondent's work day began at 8:30 a.m. and ended at 3:00 p.m. Each day included two paid 15-minute breaks and one unpaid 30-minute lunch break. Respondent's immediate supervisor adopted a policy identified in the record as a "ready-to-work" policy. The policy required food service workers, including Respondent, to put on their hair nets and aprons and wash their hands before beginning work. After a worker was ready to work, the worker then entered in a daily log sheet the time that the worker began work each day. The policy also required each worker to record in the daily log the time the worker left work and any period that the worker left and returned to work in the same day. The supervisor incorporated the "ready-to-work" policy in a revised employee handbook. The revised handbook was distributed to food service workers on September 26, 2003. On December 10, 2003, Respondent signed a form acknowledging that she had read the revised handbook. On 47 days from August 14, 2003, through May 20, 2004, Respondent was late to work, left work early, left for part of the same day, or was absent the entire day. Respondent was late to work on 20 days, left work early on 13 days, was absent 13 days, and left for part of one day for two hours and ten minutes. Petitioner deems all 47 instances to be "absences" within the meaning of Section 9.015 of the SPALC agreement. Assuming arguendo that all 47 instances are absences, the preponderance of evidence does not show that the absences were unauthorized. The supervisor testified at the hearing. The supervisor did not have authority to approve or disapprove absences. Rather, the head of the department or the school principal authorized requests for absences. Neither the head of the department nor the principal testified at the hearing. The supervisor did not know whether Respondent's absences were unauthorized. The supervisor merely reported the 47 absences to the "front office" and later determined they were unauthorized and excessive. Petitioner did not submit personnel records that may have documented which absences, if any, were unauthorized. Counsel for Petitioner argued during the hearing that even authorized absences can adversely affect Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015. However, counsel did not cite any legal authority in his PRO to support the argument. Assuming arguendo that all 47 absences were unauthorized, Subsection 9.016(a) of the SPALC agreement imposed an affirmative duty on Petitioner to inform Respondent, immediately upon her arrival to work following each absence, that Petitioner considered the absence to be unauthorized. The purpose of the requirement is to afford an employee such as Respondent with notice and an opportunity to show extenuating circumstances. If an employee demonstrates extenuating circumstances, the agreement requires Petitioner to change the absence to an authorized absence. It is undisputed that Respondent had several physical conditions, including skin cancer and a miscarriage, that affected her attendance during the 2003-2004 school year. The preponderance of evidence shows that Respondent was absent from work due to medical conditions. During the hearing, Petitioner stipulated that it was withdrawing several dates as a basis for its proposed termination of employment. The withdrawn dates include all 13 days on which Respondent was absent for an entire day; the day that Respondent left and returned to work for part of the day; and ten days that Respondent left work early on August 25 and September 10, 2003, and between October 20, 2003, and March 26, 2004. The stipulation reduced the contested absences on which Petitioner based the proposed termination to 20 days when Respondent was late to work and three days when Respondent left work early. As previously found, Petitioner failed to submit testimony or documentation that the contested absences were unauthorized or that Petitioner informed Respondent upon her arrival to work that Petitioner had determined the immediately preceding absence to be unauthorized. Assuming arguendo that the contested absences were unauthorized and that Petitioner provided timely notice to Respondent, the contested absences present other evidential concerns for the trier of fact. On 12 of the 20 days that Respondent was late to work, Respondent was no more than five minutes late. Being late five minutes or less did not affect Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015. Another food service worker testified for Petitioner that being late five minutes or less did not affect any employee's ability to do his or her job. For the remaining eight late arrivals, Respondent was 15 minutes late on two days, 30 minutes late on two days, and was late the remaining four days between seven and 12 minutes. The preponderance of evidence did not show that Respondent failed to telephone her supervisor when Respondent was going to be late 15 or more minutes. During most of the remaining four days, Respondent was at the school getting ready for work or otherwise within view of her supervisor. The co-worker called as a witness by Petitioner, testified that Respondent's tardiness in excess of five minutes did not adversely affect the witness' job responsibilities, but did adversely affect the supervisor or other workers. However, the witness erroneously thought that Respondent's work day in the 2003-2004 school year began at 8:00 a.m. It is undisputed that Respondent's shift began at 8:30 a.m. The witness never really knew Respondent's actual start time. When Respondent was late to work, Respondent made up the time by working into her lunch or break periods. This was a custom that similarly situated workers practiced regularly. The assistant principal for the school did not testify. However, documents in the record indicate that the assistant principal met with Respondent on October 20, 2003. At that time, Respondent had been late to work approximately 15 times, absent approximately two times, and had left work early approximately two times. The documents indicate the assistant principal "talked with [Respondent] . . . about being on time to work." The supervisor who testified at the hearing was not present at the meeting. Following the meeting with the assistant principal, Respondent's attendance improved. The supervisor did not formally discuss Respondent's attendance with her again until the supervisor completed a performance evaluation for Respondent in March 2004. The performance evaluation, in pertinent part, authorized the supervisor to score prescribed categories of Respondent's job performance as "Effective level of performance observed," "Inconsistently practiced," or "Unacceptable level of performance observed." The supervisor did not score any of Respondent's targeted areas as "Unacceptable level of performance observed." She scored five areas as "Inconsistently practiced," including categories labeled "Is punctual in attendance," "Follows written and oral work schedule," and "Exhibits dependability." On April 22, 2004, the school principal signed a form recommending Respondent for reemployment for the 2004-2005 school year. On April 29, 2004, Respondent counter-signed the form recommending reemployment. On the date of the proposed reemployment, Respondent had been absent from work 43 days, including 19 of the 20 contested late arrivals and one of the three contested days when Respondent left work early. On May 20, 2004, Respondent left work three hours early. On May 21, 2004, the supervisor issued a written reprimand to Respondent for being late to work, leaving work early, or being absent from work approximately 47 times between August 14, 2003, and May 20, 2004. The written reprimand did not provide a clear point of entry for Respondent to contest the factual basis for the reprimand in an administrative hearing. The reprimand merely informed Respondent that Respondent was entitled to prepare a response to the reprimand. Respondent and her union representative did not challenge the factual basis of the written reprimand in a grievance procedure authorized in Article 5 of the SPALC agreement. However, Section 5.102 prohibits the grievance procedure from being construed to deny any rights that are otherwise guaranteed to Respondent by law. On May 24, 2004, the first work day following Respondent's receipt of the written reprimand, Respondent began work five minutes late at 8:35 a.m. Neither the supervisor nor any other representative for Petitioner spoke with Respondent to inform her that Petitioner had determined the late arrival to be an unauthorized absence. On May 27, 2004, the supervisor recommended that Petitioner terminate Respondent's employment. This proceeding ensued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the petition, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits. DONE AND ORDERED this 1st day of February, 2005, 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 1st day of February, 2005. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Dr. James W. Browder, III, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street 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
Findings Of Fact Petitioner, Judith A. French (French), was employed full time by Respondent, Department of Health and Rehabilitative Services (Department), as a switchboard operator in Riveria Beach, Florida. On three consecutive workdays, to wit: July 7- 9, 1986, French was absent from her employment without authorized leave. By certified letter dated July 10, 1986, the Department advised French that her absence from work since July 7, 1986, was unauthorized and that, pursuant to Rule 22A-7.10(2), Florida Administrative Code, she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised French of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. French timely petitioned the Department of Administration for review. On August 13, 1986, the Department of Administration accepted French's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing. At hearing, French asserted that her absence was occasioned by a sudden and severe illness she contracted over the fourth of July weekend, which illness she averred rendered her totally incapacitated and unable to contact her employer the week of July 7, 1986. French offered no proof, however, of the cause or nature of her illness but merely testified that she was incapacitated, subject to profuse vomiting, and admitted to a hospital on July 14, 1906, where she was treated for a lack of potassium. While unable to do so personally, French contended that efforts were made on her behalf to advise the Department of her illness. According to Lester Smith (Smith), French's live-in-boyfriend and co-worker at the Department's Riviera Beach office, he made on attempt to call French's supervisor at noon, July 7, 1986, but no one answered the Department's telephone. Smith asserted that his efforts to contact the Department on July 1986, were frustrated by an epileptic seizure he suffered that morning, and the fact that he had to use a pay phone since their phone was out-of-order. Smith did not contend that he was incapacitated by his seizure of July 7, 1986, and offered no further excuse for his failure to notify the Department that he and French would be absent that day. On July 8, 1986, according to French and Smith, their friend Mr. Dudick offered to call the Department concerning their absence, and subsequently advised them that he had been unable to reach their supervisor but had left word with the Department that French and Smith were ill and their telephone out-of- order. Mr. Dudick did not testify at hearing, and there is no record of any such call having been received by the Department. On July 9, 1986, no effort was made to notify the Department that French would be absent from work. The proof established that French's absence from her employment on July 7-9, 1986, was not authorized, and that the Department was not notified that she would be absent due to illness. Consequently, on no less than three consecutive business days her employer was left without the benefit of her services or the notice needed to secure a replacement to perform her duties. While French may have been ill, she offered no proof that would excuse her failure to promptly notify her employer of her incapacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a final order finding that Petitioner, Judith A. French, abandoned her position and resigned from the Career Service. DONE AND ENTERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986 APPENDIX The Department's proposed findings of fact are addressed as follows Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraphs 2-7. COPIES FURNISHED: Judith A. French 2815 Broadway, Apartment #1 West Palm Beach, Florida 33407 K. Stuart Goldberg, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the Respondent, Kenneth M. Watson, abandoned his career service position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code, by being absent from work without authorization on November 4, 5 and 6, 1987?
Findings Of Fact Mr. Watson was employed by the Department from June l2, 1985, until November 6, 1987. When Mr. Watson was first employed by the Department he was given a copy of the Florida Department of Transportation Employee Handbook. Mr. Watson was, therefore, informed of the following, which appears on page 43 of the Handbook (DOT exhibit 5-B): JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. The leave policy of the Department requires that employees "[g]et your supervisor's approval before taking leave." Page 21 of the Handbook (see DOT exhibit 5-A). In November, 1987, Mr. Watson was employed by the Department as a Highway Maintenance Technician II. He was a Career Service employee. In November, 1987, Mr. Watson worked under the direct supervision of Tommy Gay. Mr. Gay was a welder and had no authority over Mr. Watson other than to supervise work they performed together. Mr. Gay had no authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Elzie Mercer, a Highway Maintenance Supervisor IV. Mr. Mercer had authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Joseph Heath, the District Bridge Inspection Engineer. Mr. Heath also had the authority to approve personal absences from work for Mr. Watson. On November 3, 1987, Mr. Watson was absent from work. This absence had been approved by the Department. Mr. Watson was supposed to return to work on November 4, 1987. He was supposed to be at work on November 5 and 6, 1987, also. Mr. Watson did not report to work with the Department on November 4, 5 or 6, 1987. Neither Mr. Mercer or Mr. Heath approved Mr. Watson's absence for November 4, 5 or 6, 1987. Mr. Watson did not directly contact Messrs. Gay, Mercer and Heath, or anyone else at the Department about his absence on November 4, 5 or 6, 1987. Mr. Watson did not request approval for his absence on November 4, 5 or 6, 1987. A woman who identified herself as Mrs. Green called the Department on November 4, 1987, and spoke with the receptionist, Carol Ellis. Mrs. Green informed Ms. Ellis that "if Mr. Watson does not show up at his job in a couple of days he is probably in jail." Ms. Ellis informed Messrs. Gay and Mercer about this conversation. Mrs. Green called again on November 6, 1987, and spoke with Barbara Taylor, a secretary with the Department. Ms. Taylor informed Mr. Heath of this phone call. Mr. Heath had Mr. Gay call the Duval County Jail. Mr. Gay verified that Mr. Watson was in jail. Mr. Watson first spoke with Mr. Heath on November 10, 1987. Mr. Watson informed Mr. Heath that he was in jail. Mr. Watson requested approval of annual and sick leave for the period of his absence. Mr. Watson was told that he could not use sick leave for the absence. Mr. Heath also informed Mr. Watson that he was denying the request for annual leave and that Mr. Watson would be treated as having abandoned his position with the Department because of his unauthorized absence. Mr. Watson spoke with Mr. Heath by telephone again on November 13, 1987. Mr. Heath again denied Mr. Watson's request for leave. On November 17, 1987, Mr. Watson appeared at work for the first time since before his authorized absence on November 3, 1987. He was informed that he could not work and he left. Messrs. Mercer and Heath were not contacted by Mr. Watson and requested to approve his absence from work on November 4, 5 and 6, 1987, until November 10, 1987, or later. At no time did Mr. Watson obtain approval of his absence. Mr. Watson was informed by letter dated November 24, 1987, that he had abandoned his position with the Department. The Department received a letter on November 25, 1987, requesting a formal administrative hearing. Mr. Watson had sufficient annual leave to cover his absence from the Department on November 4, 5 and 6, 1987. He did not have sufficient annual leave to cover his absence through November 17, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued by the Department of Administration concluding that Kenneth M. Watson abandoned his career service position with the Department. DONE and ENTERED this 16th day of June, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989. APPENDIX Case Number 88-0798 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2-3 4. 4-5 5. 6 7. 7 11. 8 13. 9 11-15. 10 16. Hereby accepted. See 17. 13 13. 9. But see 16. Mr. Watson attempted to return to work on November 17, 1989. Hereby accepted. 16 18. 17-18 2. 19-20 Although generally true, the Department failed to present evidence sufficient to support these policies. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d 380 (Fla. 1st DCA 1985). The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-6. 2 7. 3 9. 4 11. 5 12. Except for the last three sentences, these proposed findings of fact are not supported by the weight of the evidence. The last three sentences are accepted in findings of fact 14-16. Hereby accepted. Not supported by the weight of the evidence or irrelevant in this de novo proceeding. Not supported by the weight of the evidence or argument. See 20. Not supported by the weight of the evidence. Hereby accepted. Irrelevant in this de novo proceeding. COPIES FURNISHED: Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Larry D. Scott Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS #58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Janet Truett was a former vocational rehabilitation client due to a hearing problem. After successfully completing the program, she was employed as a secretary by the Office of Vocational Rehabilitation in Tampa, a position which she retained for approximately five years. In 1983, petitioner often took annual leave, sick leave and leave without pay, usually calling in at the last minute. On October 13, 1985, her immediate supervisor advised her that "in the future, all leave must be approved in advance except for emergency sick leave." (HRS Exhibit 1). Due to an automobile accident and gall bladder surgery, Mrs. Truett was absent from work approximately one-fourth of the time from mid-November of 1984 through mid-April of 1985. On April 22, 1985, petitioner and her supervising counselor had a conference and discussed her continued use of leave without pay. Petitioner was advised that her absence put undue stress on the rest of the unit and that her physician was being consulted to determine if she was able to return to work on a full-time basis. Another conference was to be scheduled after receiving her doctor's response. By letter dated April 30, 1985, Dr. Michael J. Wiley advised petitioner's supervisor that petitioner had been discharged from care after recovering from her surgery on March 18, 1985, but had come back to his office on April 3, 1985, complaining of abdominal pain. She was instructed to stay home and return for a follow-up visit the following week. She did not return to Dr. Wiley's office after April 3, 1985. Petitioner received her annual performance evaluation on May 2, 1985, with an overall rating of "conditional". The areas of deficiency included dependability, quality of work and quantity of work. Petitioner was advised that her attendance at work would be monitored over the next sixty days and that she would "not be given any approved leave whether sick leave, annual leave or leave without pay without a written explanation. If she falls ill during the 60 days she must provide me with a doctor's report indicating her problem. If she is to take any other type of leave she must provide me with a written explanation. I will then make a determination as to whether or not I will approve this leave." (HRS Exhibit 3). On May 17, 1985, petitioner called her supervisor and indicated she had car problems. She did not come in to work for the entire day. A counseling session was held on May 20, 1985, and petitioner was advised by her supervisor that she was expected to take the city bus or arrange for other transportation should she experience further car trouble. On May 24, 1985, petitioner called her supervisor at 9:45 A.M. and requested leave because of an alleged family problem. She was told that her story would be verified and was reminded that she had been instructed to call in to request leave before 8:30 A.M. The stated reason for her absence on May 24, 1985 was not truthful. On May 28, 1985, petitioner called in at 8:20 A.M. and requested leave, stating that her car had broken down and that she had numerous family problems. She was told that the leave for May 24 and May 28, 1985, would not be approved. On May 29, 1985, she arrived to work late at 8:15 A.M. Also on that date, she received a written reprimand from her supervisor for taking unauthorized leave on May 24 and May 28, 1985. She was instructed to be honest and to call in by 8:30 A.M. if she was going to be out for any reason. On May 31, 1985, petitioner was granted approval for three hours leave in order to get her electricity turned on. On June 3, 1985, she called in requesting leave stating that she still had no electricity, that she had been up late the night before due to family problems and that she had no way to get to work anyway. Her daughter picked up some checks for her around 1:10 P.M. On June 4, she came to work but requested leave. This request was not approved and she received a second written reprimand for taking unauthorized leave on June 3, 1985. In this second reprimand dated June 4 but signed June 11, 1985, petitioner was advised that "further occurrences of unauthorized leave could result in a suspension or dismissal." (HRS Exhibit 5) A counseling session was held with petitioner on June 4, 1985, to review her job performance since the time of her conditional performance rating. She was advised that her attendance problem had not improved. She was referred to the Employee Assistance Program and was advised that the only way she could obtain future approved sick leave was to provide her supervisor with a doctor's statement. On June 14, 1985, a Friday, petitioner called in and requested sick leave. Her supervisor told her that in order for him to approve her sick leave, she must provide him with a doctor's report. On June 17 and 18, 1985, petitioner failed to report to work and failed to request additional leave. On June 19, 1985, she called in and said she was "too upset" to come to work. When asked if she had seen a doctor, she replied that she had not. Petitioner was then advised by her supervisor that he would not approve her leave for June 14, 17 or 18, 1985. When petitioner was absent from work, other secretaries in the office were required to perform her duties, as well as their own. This created a hardship on the other secretaries, and petitioner's frequent absences impaired both the quantity and the quality of her own work. By letter dated June 21, 1985, petitioner was advised that the Office of Vocational Rehabilitation was processing her resignation from her position as a secretary effective June 13, 1985 at 5:00 P.M. Citing Rule 22A-7.10, F1orida Administrative Code, it was assumed that petitioner had abandoned her position and resigned from the Career Service since she had been on unapproved leave for three consecutive work days.
Conclusions Rule 22A-7.10(2t(a), Florida Administrative Code, provides that "An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service." The evidence clearly demonstrates that petitioner's absence on June 14, 17 and 18, 1985, was not authorized. Petitioner does not even contend that it was authorized, but merely urges that it was not "reasonable" for her supervisor not to grant her retroactive approval for these absences. Given the numerous amount of leave time utilized by the petitioner and the repeated warnings, both oral and written, concerning future absences, HRS's action can hardly be termed "unreasonable." Petitioner's supervisors and co-workers were aware that petitioner had medical and personal problems and attempted to work around those problems and provide help and counseling to her. Her absences were both disruptive to the operation of the office as a whole and affected the quality and quantity of her own performance. Petitioner was repeatedly advised and counseled concerning the problems her absences were causing and was instructed and warned of the proper procedure to follow should future absences be necessary. It is difficult to envision any further steps HRS could have taken to solve petitioner's problems with continued absences. She was fully aware of the consequences which would ensue should she fail to report to work without authorized leave. Nevertheless, she chose to do so in the face of two written reprimands within a one-week period, and the passage of less than ten days between the second written reprimand and June 14, the first of her three days of absence without authorized leave. Rule 22A-7.10(2)(a), Florida Administrative Code; is clear and mandates the action to be taken when an employee is absent without authorized leave for three consecutive work days. A review of the facts of this case clearly supports the conclusion that petitioner abandoned her position with HRS and must be deemed to have resigned from the Career Service.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner Janet E. Truett be deemed to have abandoned her position with HRS and to have resigned from the Career Service. Respectfully submitted and entered this 19th day of November, 1985, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1985. COPIES FURNISHED: Janet Truett 1605 East Kirby Apartment B Tampa, Florida 33610 Robert Cox Regional Director, ASCME 4404 Westmoreland Court New Port Richey, Florida 33552 Claudia Isom-Rickert District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 Richard L. Kopel Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 ================================================================ =
