The Issue Whether Respondent should be dismissed from his employment by the Pinellas County School Board as a painter in the School Board’s Maintenance Department for any or all of the following: excessive absenteeism, failure to report absences according to established procedures, failure to provide required medical documentation for absences, tardiness, insubordination, driving under the influence of alcohol and criminal conviction of driving while intoxicated?
Findings Of Fact Petitioner, the School Board of Pinellas County, is the authority that operates, controls and supervises all free public schools in the Pinellas County School District. Dwayne Goodrow has been employed as a painter in the Maintenance Department for the Pinellas County School Board since April 18, 1989. His work has always been satisfactory and sometimes better than satisfactory. Over the years of his employment, however, he has had chronic and serious attendance problems. Absenteeism, Attendance and Other Performance Factors On August 2, 1990, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." The memorandum stated that since the beginning of the school year, Mr. Goodrow had been absent an excessive number of times, including 17 hours of leave without pay. It informed Mr. Goodrow that, "[t]his absenteeism is unacceptable and you must make an immediate and permanent correction of this behavior." (Petitioner's Ex. No. 1) It further advised him that the memorandum would be placed in his file as a record that he had been counseled about the matter and that he fully understood that any reoccurrence of excessive absenteeism would result in a letter of reprimand. The memorandum warns: In the event you receive a letter of reprimand and the excessive absenteeism continues, you will become subject to more severe disciplinary action, which could include suspension or dismissal. Id. The memorandum is signed first by Mr. Goodrow and then by school board personnel: Mr. Goodrow's foreman and general foreman as well as the Superintendent of the School District. On October 5, 1990, Mr. Goodrow received a letter of reprimand for excessive absenteeism. The letter informs Mr. Goodrow of his General Foreman's belief that he has not realized the seriousness of his problem with absenteeism because in the interim since the August 2 memorandum he had been absent 29 and ½ additional hours. The letter warns, "if your absenteeism continues, it will be cause to recommend you for suspension or dismissal." Petitioner's Ex. No.2. It concludes, "Your signature below will acknowledge that you have received and understand this letter of reprimand." Id. Just as the August 2, 1990 memorandum, the letter is signed by Mr. Goodrow and school board personnel. On a Supporting Services Personnel Performance Appraisal signed by Mr. Goodrow January 18, 1991, he received a rating of unsatisfactory in the area of attendance and "needs improvement" in the area of punctuality. The remarks section of the appraisal states with regard to attendance, "[h]as received letters warning him of this, must be corrected." Petitioner's Ex. No. 17. The appraisal also states, "Dwayne has good painting abilities and knowledge, can be trusted to complete any job given him." Id. On June 10, 1991, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." With the exception of stating that he had taken 15 hours of leave without pay, the memorandum is identical to the August 2, 1990 memorandum. On a supporting Services Personnel Performance Appraisal dated February 14, 1992, Mr. Goodrow was again rated unsatisfactory under the performance factor of attendance. The remarks section reflects that he received counseling on December 19, 1991, for frequent tardiness but also that "[j]ob knowledge is adequate," "[c]ompletes assigned work on time," "[h]as the ability to be a self-starter," and "[c]an be a good team worker." Petitioner's Ex. No. 16. On September 15, 1994, Mr. Goodrow received an Attendance Deficiency Notification Letter. The letter states "[y]ou are required to bring in doctor's documentation of your illness on all further sick leave absence requests." Petitioner's Ex. No. 4. Although there is a place on the letter for Mr. Goodrow's signature and a notation that signature by the employee does not imply agreement with statements in the letter, the letter reflects that Mr. Goodrow refused to sign it. On October 3, 1994, Mr. Goodrow received a Record of Counseling. It noted deficiencies in his performance in that, INSUBORDINATION - You were told to furnish doctors excuses for any sick leave taken as per letter dated 9/15/94. On 9/26/94 you used 2 hours sick leave and failed to provide Doctor's excuse upon request of your Foreman. Petitioner's Ex. No. 5. To bring his performance to the satisfactory level, Mr. Goodrow was advised he would have to supply a doctor's documentation of illness whenever he took sick leave in the future. On February 17, 1995, Mr. Goodrow was rated as "Needing Improvement," in the area of attendance on his performance appraisal by his supervisor. The remarks section of the appraisal reflects that he was counseled for not following leave policy but also that "Dwayne has shown a more positive attitude recently, he has the potential to progress." Petitioner's Ex. No. 15. Furthermore, Mr. Goodrow was rated "better than satisfactory, in the area of "job knowledge." Consistent with this rating, in the remarks section, the following appears, "Dwayne exhibits his job knowledge by identifying problems and solving them . . . ." Id. The potential for progress noted in February did not last long. On March 24, 1995, Mr. Goodrow received a letter of reprimand for insubordination for failing to provide a doctor's excuse for sick leave absences contrary to previous instructions. The letter warned that failure to provide doctor's excuses in the future to justify sick leave will result in "further disciplinary action up to and including termination of employment." Petitioner's Ex. No. 6. Over the next 6 months, Mr. Goodrow began again to show progress. By early September, 1995, his attendance had "improved considerably," Petitioner's Ex. No. 7, and the requirement for a doctor's excuse for every sick leave absence was lifted. The procedure for reporting absences in the School Board's Maintenance Department is for employees to call in at least one-half hour prior to their normal starting time. There is an answering machine upon which a message can be recorded when there is no person available to take the call. Shortly after the lifting of the requirement for a doctor's excuse to justify sick leave, Mr. Goodrow, on Wednesday, September 13, 1995, was absent from work. He did not call in consistent with the procedure for reporting absences. He was absent again two days later. In addition to the failure to call in on September 13, 1995, Mr. Goodrow was absent without calling in on three other days in the fall of 1995: October 18 and 26, and November 9. Each time he failed to call in, Mr. Goodrow was verbally warned by Trades Foreman Al Myers of the requirement for calling in and was given a review of proper procedure. On December 14, 1995, Mr. Goodrow received a letter of reprimand for failure to follow proper procedure with regard to the four absences in the fall of 1995. The letter was the result of an agreement with Mr. Goodrow that the letter was the appropriate response by the maintenance department for the absences and failure to follow procedure. A stipulation was added, however, to the agreement: "[A]nother attendance incident within one year will result in recommendation for 'Time off without pay' or possible 'Dismissal'.". Petitioner's Ex. No. 7. The letter concludes, "Also, as of this date you are again required to provide medical proof of your [inability to attend work] . . . and you are required to notify your supervisor prior to the start of work shift you are going to be absent." Id. The letter is signed by Mr. Goodrow. On February 26, 1996, Mr. Goodrow and the School Board entered a Stipulation Agreement. The agreement reviewed Mr. Goodrow's performance appraisals for unsatisfactory attendance, and insubordination for taking sick leave without doctor's excuses. Furthermore, it stated that Mr. Goodrow: On December 15, 1995, . . . left work early without proper notification or required medical documentation. On January 3, 1996, Mr. Goodrow failed to report his absence according to established procedures, and on January 17, 1996, he failed to report his absence according to established procedures and requested 3.5 hours of sick leave without providing required medical documentation. Petitioner's Ex. No. 8. As an expression of regret and to affirm his commitment to notify his supervisor in the future regarding absences, Mr. Goodrow agreed to a three day suspension without pay effective March 19, 20 and 21, 1996. The stipulation also states that Mr. Goodrow, once again, understands that further problems could result in more serious disciplinary action, including dismissal. On April 16, 1996, Mr. Goodrow received a performance review finding him to have continued to demonstrate unsatisfactory attendance and judgment in that on March 6, 1996, he was late 3 hours with no explanation, on March 28, 1996, he was late one-half hour with no explanation, on April 3, 1996 he took eight hours sick leave without doctor's justification, on April 9, 1996, he was arrested and charged with DUI, and on April 11, 1996, he took eight hours sick leave without a doctor's justification. Driving While Intoxicated The job description for a painter employed with the Pinellas County School Board includes the requirement that the employee possess a valid State of Florida Class B commercial driver's license ("CDL"), to include "air brake" qualifications, and any other license as may be required by law. On March 30, 1996, while driving a motor vehicle off- duty, Mr. Goodrow was stopped by a law enforcement officer for failing to maintain his vehicle in a single lane of traffic. Deputy Howard Skaggs, a member of the Sheriff Department's DUI unit, was summoned to the scene to conduct filed sobriety tests to determine whether Mr. Goodrow was driving while intoxicated or under the influence of alcohol. Deputy Skaggs smelled a strong odor of alcohol on the breath of Mr. Goodrow, who, in turn, admitted that he had consumed at least six beers at two different taverns. While at the roadside, three field sobriety tests were performed by Deputy Skaggs, all of which Mr. Goodrow failed. Deputy Skaggs concluded that Mr. Goodrow was without doubt impaired. At the jail, Mr. Goodrow was asked to submit to a breathalyzer. He refused with the statement that he had had too much to drink and the test would only incriminate him. Mr. Goodrow was arrested. On September 17, 1996, Mr. Goodrow entered a plea of nolo contendere to the criminal offense of driving under the influence of alcohol. He was adjudicated guilty, placed on probation for 12 months, required to enroll in DUI school, fined $1000.00, and his driver's license was revoked for one year. Without a driver's license and a CDL, Mr. Goodrow no longer meets the job description of a painter in the School Board's Maintenance Department. Notification of Dismissal On June 19, 1996, Mr. Goodrow was notified that Superintendent Hinesley would recommend to the School Board that he be dismissed due to excessive absenteeism and insubordination. The DUI conviction, not having yet occurred, was not, of course, a factor in the superintendent's decision. Comparison with Other Employees Brett Paul, a painter in the Maintenance Department like Mr. Goodrow, also had attendance problems very similar to Mr. Goodrow's. He was suspended for three days without pay on the very same dates as Mr. Goodrow. Since the March suspension, however, unlike Mr. Goodrow, Mr. Paul's attendance has improved with the exception on an isolated instance in which his absence was due to a "major life event," the purchase of a house. He has not been convicted of DUI. Tom Appold was arrested for DUI during a time that he was employed as a painter in the School Board's Maintenance Department. After his conviction for DUI, he requested that he be allowed to transfer to another department, presumably because he could no longer meet the job description requirement that he hold a CDL. The request was honored and he is now employed by the School Board in another section of the Maintenance Department for which a CDL is not required. Mr. Appold, however, unlike Mr. Goodrow, has never been reprimanded or suspended for attendance problems. His attendance has always been found by the School Board's Maintenance Department to be within acceptable limits. Alcoholism and a Change of Heart Mr. Goodrow is an alcoholic. His excessive absenteeism, refusal to follow proper procedures with regard to work absences, insubordination, driving while intoxicated, arrest and conviction for DUI, and virtually every other work problem he had experienced over his seven years of employment with the School Board's maintenance department stems from alcoholism. For example, many of the days he missed at work were days following dart tournaments the night before at local establishments that served alcohol. Until the aftermath of his DUI conviction, Mr. Goodrow was ashamed and embarrassed to admit he suffers alcoholism. Today, with the assistance of professional counseling required as condition of probation for the crime of which he has been convicted, Mr. Goodrow is able to admit and freely did so at hearing that he is an alcoholic. The ability to make this admission is a major step forward for Mr. Goodrow. It is unfortunate that Mr. Goodrow's ability to face up to his problem has come so late. Had he admitted the condition when he was encountering problems with attendance at work, there were a number of options available to him and the School Board short of poor performance appraisals, letters of reprimand and suspension. As Dr. Martha O'Howell , Administrator of the School Board's Office of Professional Standards testified, We would have talked to him about the extent of that drinking problem. We would have referred him to . . . Cigna, the health provider. At that time, there was no formalized EAP [Employee Assistance Program] in place that the employee could go directly to, but there was . . . substance abuse counselling (sic) through Cigna that was available. We would have referred him or put him in contact with our risk management department. We would have encouraged him to take a leave of absence while he was seeking treatment, (Tr. 78). depending on the nature of the treatment, the severity, the length and so forth. We would have worked with him to provide a medical leave of absence if that had become necessary. If Mr. Goodrow's suspension were lifted and his employment was reinstated, the School Board's Employee Assistance Program would be available now to help him cope with his alcoholism. School Board personnel are not willing to make such a recommendation, however, in light of all that has occurred in Mr. Goodrow's case. A supervisor in the Maintenance Department expressed concern over the precedent that would be set if Mr. Goodrow were allowed to return to work, particularly in the minds of employees who might think that conduct like Mr. Goodrow's resulted in no meaningful consequences on the part of the School Board. Contrary to the concern of the Maintenance Department, the action taken to date, a suspension without pay that has been in effect now for more than eight months, has resulted in very definite consequences to Mr. Goodrow. In the main, he has been unemployed. He has made reasonable efforts to gain employment. But the loss of his driver's license has held him back. At the time of hearing, what little money he had been able to earn from the time of his suspension was certainly far below what he would have earned had he not been suspended from the employment he had held for more than seven years.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the suspension of Dwayne Goodrow be sustained by the Pinellas County School Board but that he be reinstated without back pay if adequate conditions for his return to work can be agreed-to by the parties. If conditions of reinstatement cannot be agreed-to, Mr. Goodrow should be dismissed. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1997. COPIES FURNISHED: Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 4th Street Southwest Largo, Florida 33770-2942 Robert G. Walker, Jr., Esquire Pinellas County School Board Attorney 1421 Court Street, Suite F Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board Attorney 301 4th Street Southwest Largo, Florida 34649-2942 Elihu H. Berman, Esquire Berman & Hobgood, P.A. 1525 South Belcher Road Clearwater, Florida 34624
The Issue Whether respondent discriminated against petitioner, either on account of her age or on account of an alleged handicap, in violation of Section 760.10 et seq., Florida Statutes (1989), in terminating her employment?
Findings Of Fact Petitioner Doris Stephens, a woman now approximately 56 years of age, began working for respondent Tom's Foods, Inc., on June 30, 1981, sweeping floors at its plant in Perry, Florida. After various intervening assignments, she ended up as a packer on the potato chip line. Packers remove packages of potato chip bags from a conveyor belt and deposit them in cardboard boxes, which they form by folding. As a packer on the potato chip line, her duties included keeping a record of how many boxes she packed in the course of the shift, and cleaning up at the end of the shift. Headquartered in Columbus, Georgia, respondent Tom's Foods, Inc., employed 15 or more people in Florida for a period in excess of 20 weeks this year and last. On March 6, 1989, respondent fired Ms. Stephens, who has arthritis, for "excessive absenteeism." By all accounts, she was a good employee for her almost eight years with respondent, whenever she was at work. Petitioner's arthritis has not interfered in any way with her ability to perform her work when she was well enough to be at work. Petitioner attributes the absences on account of which she was discharged to visits to the doctor in Gainesville who treated her for arthritis, to certain side effects of medicine she took for arthritis, and to visits to a doctor in Perry, on account of the side effects. Company Policy People who work for Tom's Foods, Inc. as packers are paid nothing when sickness keeps them away from work for periods of up to four days. Without regard to the length of their service, moreover, they are discharged if illness (among other causes) occasions too many absences. The company's written attendance policy provides: 5. Definitions: A period of absence counts from the day an employee stops work until the day he/she returns to work. (This could include one day or three days, but would still count as one period.) If the employee is going to be absent beyond the seventh (7th) day (eight days or more), he/she must request and be granted a Leave of Absence and must provide a doctor's release before returning to work. The six-month period in which an employee's attendance is measured dates from the current date back six months, dropping off the oldest date and adding the newest date. Classification of absences: In order to define "excessive absenteeism" and deal with it in a fair and consistent manner, absences will be classified as either chargeable or non-chargeable: Non-chargeable absences are certain specifically identified absences which will not be charged against an employee's overall attendance record for the purpose of determining excessive absenteeism. These are absences due to: Jury duty. A death in the immediate family which qualifies the employee for funeral leave pay. (Absences due to other family deaths require prior approval from the plant manager.) An on-the-job injury. An official and formally-granted leave of absence (see Policy Statement A-204, Leave of Absence). Chargeable absences are all other absences for any reason; these will be charged against the employe's attendance record and will be used to determine excessive absenteeism. Excessive tardiness/early departure Because of production requirements, employees are expected to be present and at their work stations at the beginning and the end of their shifts. Failure to comply with these requirements will be a basis for disciplinary action in accordance with the provisions of this policy. Definition of tardiness: Any employee not present in his/her department and ready for work on his/her job scheduled starting time is considered "late for work" or tardy. . . . 3. Excessive tardiness/early departure. Excessive tardiness/early departure will be cause for discipline of the employee and may ultimately result in discharge. Tardies or early departures of less than three (3) hours are non-chargeable if prior notice is given to and approval obtained from the supervisor. Prior notice for a late start should be given at the end of the employee's previous shift. Prior notice for an early departure should be given four (4) hours before the end of the shift. Three (3) separate tardies and/or early departures will be counted as one (1) chargeable absence and will be applied in conjunction with all other chargeable absences as outlined in Sections B and D of this policy statement. Excessive absenteeism Excessive absenteeism is defined as six (6) chargeable periods of absence - or a maximum of eighteen (18) days of absence for chargeable reasons - within any six-month period. Excessive absenteeism cannot be tolerated and any employee guilty of such will be discharged under the following procedures: A verbal warning will be issued upon the fourth (4th) period of absence within any six-month period. A written warning will be issued upon the fifth (5th) periods of absence within any six-month period. Termination will occur upon the sixth (6th) period of absence within any six-month period. Respondent's Exhibit No. 12. This version of respondent's policies has been in effect since August 1, 1987, although similar policies have obtained at all pertinent times. An absence of less than five days, although for medical reasons, counts as a chargeable period of absence, if it lasts three hours or longer. A shorter absence, even a few minutes' tardiness, counts as one-third of a period of absence. In the event of a medical disability lasting five or more days, an employee is eligible for a formal leave of absence; and, when an employee obtains such leave, his absence is not charged against him for purposes of the absenteeism policy. Three Minutes Late Ms. Stephens missed work on September 26 and 27, 1988, because she was ill; she attributed her illness to arthritis medication she took. She was absent on October 17, 1988, when she went to Gainesville to see the doctor who treats her for arthritis. She was absent three days running on December 16, 17 and 18, again on account of illness she claimed her arthritis medicine caused. On December 27, 1988, going to see a doctor, because she was ill, made her 2.5 hours late. She missed three hours' work on January 3, 1989, again on account of illness. The next day she was three minutes late to work. Because she did not obtain permission to miss work, either before she was too sick to work or before she was tardy, each incident counted as a third of a chargeable absence. In accordance with company policy, Don Cook, the supervisor who recorded petitioner's three-minute peccadillo on January 4, 1989, spoke to her two days later. He told her she had the equivalent of four periods of absence within less than a six-month period, and that "[t]wo additional chargeable POA before March 26, 1989, will warrant termination of employment." Respondent's Exhibit No. 5. The day Ms. Stephens returned from a two-day absence occasioned by her illness on February 13 and 14, 1989, she received a written warning that a single additional period of absence "before 3/27/89" would result in termination. Respondent's Exhibit No. 6. A final absence, this one also attributed to illness, lasted three days, March 1, 2 and 3, 1989, and resulted in her discharge. Respondent's Exhibit No. 7. Betty Davis, who "may be in her 50s," (T.92) and who may or may not have arthritis, filled the vacancy petitioner's discharge created. Because Ms. Davis, who had been doing similar work on another shift, was "the most senior person with that job classification," (T.91) company policy gave her the choice of taking petitioner's place. Consistent Application In the last two years, respondent has fired a number of other employees for violating its absenteeism policy. At the time of petitioner's discharge, no employee with six periods of absence in six months' time had been retained. Subsequently, however, two employees who had been absent six times in six months were not discharged, because supervisors had neglected to give warnings required by company policy after earlier absences. Although respondent had recently agreed to modify its absenteeism policy to accommodate an employee whose child suffers a "more than likely fatal" (T.98) illness, it was not shown that this employee had been absent six times in a six-month period. On more than one occasion, petitioner denied having any handicap, when asked on company forms. At no time before her discharge did petitioner seek accommodation on account of her arthritis, T.84, 135.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR deny the petition for relief from an unlawful employment practice. DONE and ENTERED this 31st day of December, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1990. COPIES FURNISHED: Dana Baird, Acting Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 William S. Myers, Esquire 3800 One Atlantic Center 1201 West Peachtree Street, N.W. Atlanta, GA 30309 Doris Stephens Route 4, Box 397 Perry, FL 32347
Findings Of Fact Respondent, Magda R. Cenal (Cenal) has been employed by Petitioner, School Board of Dade County (School Board) as a music teacher for primary grades since 1972. On November 19, 1986, the School Board suspended Cenal from her position, and sought her dismissal for excessive absenteeism for the school years 1975-76 through 1985-86. Cenal contests the School Board's action, and contends that she has a right to job protection under her contract of employment when on approved leave and that all her absences were duly approved. The proof is uncontroverted that during the school years 1975-76 through 1985-86 Cenal was absent from her employment for protracted periods of time, and that such absences impaired her effectiveness in the school system and deprived her pupils of a minimum educational experience. The proof is also uncontroverted that Cenal was repeatedly directed to improve her attendance, but failed to do so. Resolution of this case is, however, dependent on whether Cenal's absences were consistent with the terms of her contract of employment (approved). If consistent, she is entitled to employment protection, and the impact of her absences is not relevant. Article XIV of the contract between the School Board and the United Teachers of Dade, prescribes the leaves of absence available to teachers employed by the School Board, as well as the accrual and use of sick leave. If an employee's absence is in accordance with the provisions of this contract it is deemed approved, and their employment rights are protected. In the instant case Cenal avers that all her absences were approved. The School Board concedes that at no time was Cenal absent without approved leave and, notably, did not contest the propriety of a single absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Magda R. Cenal, be reinstated with back pay, and all other benefits to which she is rightfully entitled. DONE and ENTERED this 25th day of August, 1987, 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 25th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4804 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Not necessary to result reached. 3-6. Addressed in paragraph 2-4. 7-10. To the extent relevant, addressed in paragraph 2. Mr. Renuart's evaluation of Respondent during the 1978-79 school year and his recommendation that she be dismissed was not acted upon by the School Board. Other than her absence record, there is no competent proof that she suffered any deficiencies noted by Mr. Renuart in subsequent years. 11-17. Addressed in paragraphs 2-4. 18-19. Addressed in paragraph 2. 20-22. Not necessary to result reached. 23-24. Addressed in paragraph 2. 25. Not supported by competent proof. 26-32. Addressed in paragraph 2. 33. Not necessary to result reached. 34-37. To the extent relevant, addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraph 2. Not necessary to result reached. Also see paragraphs 1-4 of recommended order. Respondent's proposed findings of fact are addressed as follows: To the extent relevant, addressed in paragraph 1. Respondent's absenteeism is addressed in paragraph 2. The interrogatories filed in this case are not, however, probative since they were not introduced into evidence. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraph 3. Addressed in paragraph 2. Also see the address to petitioner's proposed findings of fact 7-10. COPIES FURNISHED: Johnny Brown, Esquire 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132 William DuFresne, Esquire 2929 Southwest Third Avenue Suite C Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132
The Issue The issues are whether subject matter jurisdiction exists in this proceeding, and, if so, whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Petitioner is the agency responsible for the School District of Hendry County, Florida (the District). Petitioner employed Respondent in the District as a custodian from July 8, 1997, until April 4, 2006. A custodian is an educational support employee as defined in Subsection 1012.40(1)(a), Florida Statutes (2005). The alleged grounds for the termination of Respondent's employment may be fairly summarized as involving two unauthorized absences during the workdays of March 15 and 16, 2006. On March 17, 2006, the principal met with Respondent in the principal's office. The assistant principal and head custodian were also present. Respondent declined the opportunity to have a union representative present. By letter dated April 24, 2006, the District superintendent provided Respondent with written notice that Petitioner had terminated Respondent's employment on April 4, 2006 (written notice of termination). By letter dated April 28, 2006, Respondent's counsel requested an administrative hearing (the request for hearing). Respondent challenges the subject matter jurisdiction in this proceeding.1 The facts relevant to Respondent's jurisdictional challenge are undisputed.2 Petitioner did not request the assignment of an ALJ within the statutorily prescribed 15-day time limit. When Petitioner did request DOAH to assign an ALJ, the 60-day time limit for commencing the hearing had already expired.3 Petitioner requested the assignment of an ALJ on August 7, 2006, approximately 101 days after receiving the request for hearing from Respondent.4 Subsection 120.569(2), Florida Statutes (2005), required Petitioner to request the assignment of an ALJ within 15 days of the date Petitioner received the request for hearing. The timeline for conducting the administrative hearing is prescribed in the Collective Bargaining Agreement 2004-2007 between the District School Board of Hendry County and the Hendry County Support Personnel Association (the CBA). Subsection 1012.40(2)(c), Florida Statutes (2005), provides, in relevant part: In the event a district school superintendent seeks termination of an employee, . . . [t]he appeals process shall be determined by the appropriate collective bargaining process . . . . Section 8.074 in the CBA prescribes the procedures for conducting a hearing if one is requested by a terminated employee. The procedures prescribed in the CBA are substantially the same as those in Subsections 1012.33(3)(f)4.a. and b. and 1012.33(6)(a)1. and 2., Florida Statutes (2005). In relevant part, the CBA provides: The Employee shall be entitled to a hearing at the Board's election in accordance with one of the following procedures: A direct hearing conducted by the Board within sixty (60) days of receipt of the Employee request. The hearing shall be conducted in accordance with the provisions of FS. 120.57(1)(a)1. A majority vote of the membership of the Board shall be required to sustain the Superintendent's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within sixty (60) days of receipt of the Employee's request in accordance with FS. Chapter 120. The recommendation of the hearing officer shall be made to the Board. A majority vote of the Board shall be required to sustain or change the hearing officer's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. This is the exclusive procedure for termination, except that the Employee shall have the right for Judicial Appeal under FS. 120.68. The Association shall be notified when any Association member is to be terminated. Petitioner's Exhibit 11. Petitioner elected to refer the request for hearing to DOAH in accordance with Section 8.074b. of the CBA. However, Petitioner did not refer the matter to DOAH until August 7, 2006, approximately 101 days after receiving the request for hearing. By waiting more than 60 days to refer the matter to DOAH, Petitioner prevented DOAH from conducting the hearing within the 60-day time limit prescribed in the CBA and incorporated by reference in Subsection 1012.40(2)(c), Florida Statutes (2005). Respondent did not raise his jurisdictional challenge until the administrative hearing was conducted on September 20, 2006. The sole issue that Respondent included in the Joint Pre-Hearing Stipulation filed with DOAH on September 19, 2006, is whether Petitioner had just cause to terminate the employment of Respondent. If the requirement to conduct the hearing within the 60-day time limit were jurisdictional, judicial authority discussed in the conclusions of law would make it unnecessary for Respondent to raise the issue before the hearing. If the requirement were procedural, judicial authority discussed in the conclusions of law would require Respondent to show that the failure to comply with the 60-day time limit prejudiced Respondent by impairing the fairness of the proceeding or the correctness of the agency action. For reasons stated in the conclusions of law, both the 15-day time limit for referring the matter to DOAH and the 60-day time limit for conducting the hearing are procedural rather than jurisdictional. The untimely referral and hearing did not prejudice Respondent. Petitioner had just cause to terminate the employment of Respondent. Respondent engaged in two unauthorized absences from work on March 15 and 16, 2006. The two absences exceeded 4.5 hours. Respondent worked at LaBelle High School (LaBelle) on March 15 and 16, 2006. Respondent worked during each day from 2:00 p.m. until 10:00 p.m. The workday included one unpaid meal break for 30 minutes and two 15-minute paid breaks. The breaks could be taken at any time during the workday and could be combined into a single one-hour break. Respondent was required to sign in and out on a form (sign-out sheet) when Respondent left campus during any period of his workday other than the unpaid 30-minute meal break. Respondent was absent from work on March 15, 2006, for a period in excess of three hours and was absent from work the next day for approximately one hour and fifty minutes. The absences were unauthorized because each exceeded one hour and because Respondent did not complete the sign out sheet when he left campus. Rather, Respondent made entries in the sign out sheet indicating he was present from 2:00 p.m. until 10:00 p.m. On March 15, 2006, Respondent left work for a period that exceeded three hours. Respondent borrowed a carpet cleaning machine from LaBelle in accordance with school policy. Respondent took the machine home, as he was authorized to do, but remained absent from work for a period that exceeded three hours. The second unauthorized absence occurred on March 16, 2006, when Respondent was absent from work from approximately 5:30 p.m. until about 7:20 p.m. The principal of LaBelle was attending a baseball game at school that evening and was unable to locate Respondent on campus during three separate searches. The searches included Respondent's work area and bathrooms. The work cart assigned to Respondent was not moved during the three searches. At approximately 7:45 p.m., the principal observed that Respondent's truck had been returned to its parking space. Respondent had a history of leaving campus during the workday. The principal had previously established the sign-out sheet protocol so that others would be able to locate Respondent during the workday. The head custodian also required each custodian to leave a note disclosing when a custodian leaves campus and the reasons for the absence. The head custodian would be able to read the note when he arrived at work the next morning and would be able to explain the circumstances of the absence if asked by a school administrator. Respondent did not comply with the required protocol on March 15 or 16, 2006.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as an educational support employee. DONE AND ENTERED this 11th day of December, 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 11th of December, 2006.
Findings Of Fact Respondent had been employed by Petitioner as a teacher's aide for approximately eight years, and was so employed at the beginning of the 1982-83 school year. She was terminated by Petitioner at its meeting on December 8 1982. Respondent had 34-1/2 days of absences without accrued leave during October, November, and December, 1982. Most of the early absences were authorized by Dr. Patrick Gray, a personnel official of Petitioner's. On November 3, 1982, Dr. Gray informed Respondent that she was at that time on unauthorized leave and gave her ten days to request leave or face charges of abandoning her position (Petitioner's Exhibit 1). Respondent's failure to comply with this ultimatum led to her discharge. Respondent had serious personal problems during this period. Petitioner attempted to obtain psychiatric assistance for her, which she rejected. Respondent conceded that she abandoned her position, citing low pay and Petitioner's failure to promote her. She voiced these and other grievances with the school system, all of which are beyond the scope of this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order affirming Respondent's discharge from its employment. DONE AND ENTERED this 6th day of May, 1983, at Tallahassee, Florida. R. T. CARPENTER, 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 6th day of May, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Ms. Mary A. Lilly 14990 Northeast 10 Court Miami, Florida 33161 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with operating, controlling, and supervising all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as a teacher in the Miami-Dade County Public Schools District pursuant to a professional services contract. In the 2011-2012 school year, Respondent was employed as a science teacher at Homestead Middle School. In the 2012-2013 school year, until she was suspended pending the outcome of this proceeding, Respondent was employed as a math teacher at the Alternative Outreach Program, 5000 Role Models location.1/ At all times relevant to these proceedings, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Events Giving Rise to these Proceedings The 2011-2012 School Year Respondent began teaching eighth grade science at Homestead Middle School ("HMS") in August 2011. The 2011-2012 school year for students began on August 22, 2011. The workday hours for teachers at HMS for the 2011-2012 school year were from 7:25 a.m. to 2:45 p.m., Monday through Friday. The persuasive evidence establishes that Respondent was informed of this schedule when she was interviewed for her teaching position, and again so informed during the first faculty meeting of the school year. Pursuant to the UTD contract, the teacher work hours per day in the Miami-Dade Public Schools consist of seven hours and 20 minutes, including a one-hour planning period. The UTD Contract provides that teachers may, with the approval of the work-site administrator (i.e., the principal) modify their workday schedule, such as adjusting the beginning time of the teacher's workday, provided that such modification does not interfere with the overall number of hours worked. This provision affords a principal the authority and discretion to modify a teacher's workday schedule. The student school day hours for HMS began at 7:35 a.m., when the first bell rang and students began entering their classrooms, and ended at 2:20 p.m. Students were to be in their classrooms by 7:40 a.m. for a homeroom period, immediately followed by the first instructional period consisting of a literacy block. The student school day schedule is set by the Miami-Dade County School Board and the school principal is not authorized to change it. Pursuant to HMS's established procedure, if a teacher was going to be absent, he or she must call the absence hotline at least 30 minutes prior to the start of the teacher workday. Shortly after the beginning of the 2011-2012 school year, Respondent began being tardy to work. HMS Principal Rachelle Surrancy or one of the HMS assistant principals would note Respondent's arrival time, either by being in the front of the school when she arrived2/ or by having to open the door to her classroom to let her homeroom class students in if she arrived after the late bell had rung. Surrancy verbally reminded Respondent of the school's starting time, then held an informal meeting with her on or about September 7, 2011, to remind her of the same. Respondent's young son suffers from a range of significant health conditions, including asthma, gastrointestinal reflux, apnea, pneumonia, lactose intolerance, allergic rhinitis, and eczema. He requires extensive care for these conditions, and Respondent was required to administer breathing treatments and other care on a daily basis. During flare-ups of her son's conditions, Respondent needed to take medical leave to provide that care. On or about September 20, 2011, Respondent submitted to Surrancy an Intermittent Leave Request Medical Certification form under the Family and Medical Leave Act ("FMLA") (hereafter "FMLA Form")3/ requesting approval for Respondent to periodically take leave due to the intermittent illness of her young son. The FMLA form was completed and signed by Respondent's son's physician. Based on the child's medical history, the physician estimated that Respondent would need to take FMLA leave every two to three months, for a period lasting two to three days. Notwithstanding Surrancy's admonitions, Respondent continued to be tardy to work. During the first 25 days of the school year, Respondent was tardy 16 of those days. Most of the tardies entailed an arrival time of between two and five minutes late, but some entailed arrival times as much as 25 to 35 minutes late. When Respondent arrived after 7:40 a.m. (15 minutes late), her colleagues in the science department were placed in the position of having to cover her class until she arrived. As a result of Respondent's continued tardiness, on September 28, 2011, Surrancy issued a Punctuality to Work Directive ("Directive") to Respondent regarding her punctuality and attendance.4/ The Directive reminded Respondent that punctuality and attendance were essential components of her teaching position, and that as a faculty member, she served as a role model to other employees and student. Respondent was apprised that she was to arrive at work on time and sign in daily by 7:25 a.m. If she was going to be tardy, she was to communicate that to an assistant principal or to Surrancy. Surrancy explained that compliance with these directives was necessary to prevent adverse impact to the students and their academic progress, to ensure continuity of the educational program, and to maintain effective worksite operations. The memo advised Respondent that she could obtain assistance to facilitate her punctuality. Respondent was notified that noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. Respondent told Surrancy that the reason she was tardy was that she had to take her son to his daycare center. The daycare center did not open until 7:00 a.m., making it difficult for her to arrive at HMS by 7:25 a.m. due to the commute in morning traffic. On October 5, 2011, Surrancy evaluated Respondent's instructional performance for the 2011-2012 school year pursuant to the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used in the Miami-Dade County Public School District to evaluate instructional personnel. Surrancy rated Respondent as "effective" for each IPEGS standard other than Performance Standard ("PS") 7, "Professionalism."5/ For that standard, she rated Respondent's performance as "unsatisfactory" on the basis that due to her tardies, Respondent violated the School Board's Code of Ethics and Standards of Ethical Conduct policies.6/ After the September 28 meeting, Respondent continued to be tardy, so on October 10, 2011, Surrancy again met with her. Respondent explained that each day, her son required a breathing treatment regimen that she had to administer and that she had to take her son to daycare. Respondent told Surrancy that she planned to enlist the assistance of a friend to take her son to daycare so that may assist her to arrive on time.7/ Surrancy offered to adjust Respondent's workday schedule to allow her to arrive five minutes later to accommodate her travel time from her son's daycare to HMS, contingent on Respondent arriving at work by 7:30 a.m. However, Respondent continued to be tardy, at times arriving later than 7:30 a.m. Surrancy held a follow-up meeting with Respondent on October 25, 2011, at which she notified Respondent that the adjusted workday schedule no longer was in effect and that she was again required to arrive at 7:25 a.m.8/ In the meantime, Respondent sought to transfer to a school having a workday schedule with which she could more easily comply, given her son's daycare start time and her travel time. She was offered, but declined, a position at Redland Middle School, which entailed a teaching assignment that was out of her field of certification. Respondent declined the position because it did not meet the condition of her loan forgiveness program that the assignment be in a critical subject area——such as science and math——and because she did not believe she would be as proficient a teacher in teaching out of her subject area. Following the October 25 meeting, Respondent continued to be tardy. Several of these tardies necessitated coverage for her homeroom class. On December 14, 2011, Surrancy held a Conference-for- the-Record ("CFR") with Respondent to address her continued tardiness. By that time, Respondent had been tardy 45 days since the beginning of the school year, and several of these tardies necessitated coverage of her homeroom class by her colleagues. Surrancy informed Respondent that her tardies had adversely affected the educational program and services provided to students. Respondent was again directed to be punctual and in regular attendance, to communicate any intent to be tardy before 7:00 a.m. by calling the assistant principals or her, and to provide physician documentation and/or recertification of her FMLA form as needed if she was going to use FMLA leave to cover her tardies. Respondent was provided copies of Petitioner's policies on Standards of Ethical Conduct, Code of Ethics, and Leaves of Absence; Department of Education rules 6B-1.001 and 6B- 1.006; another copy of the FMLA for recertification by her physician; and other documents to inform and assist Respondent in addressing her tardiness problem. Respondent was informed that noncompliance with the directives would constitute insubordination and compel district disciplinary action. Respondent continued to be tardy. Again, several of these tardies necessitated coverage of her homeroom class. On February 13, 2012, Surrancy conducted another CFR with Respondent. As of that date, Respondent had been tardy 69 days since the beginning of the 2011-2012 school year. Surrancy issued Respondent the same directives previously given and again furnished Respondent copies of pertinent School Board policies, applicable Department of Education rules, and other informational documents. Surrancy informed Respondent that failure to comply with these directives would constitute gross insubordination and necessitate further disciplinary action. Respondent explained that her tardiness was due to a variety of factors, including having to perform breathing and other medical treatments on her son and taking him to daycare. She expressed concern at having to call in by 7:00 a.m. if she was going to be tardy because, for unforeseen reasons such as her son's daycare being late in opening, she may not know whether she was going to be tardy until after 7:00 a.m. Surrancy informed Respondent that under any circumstances, calling in did not excuse tardiness. Respondent requested that Surrancy assign her homeroom to another teacher and allow her to report at 7:45 a.m., when her science classes commenced. Surrancy refused. As a result of Respondent's continued tardies, Surrancy determined that her conduct constituted insubordination and noncompliance with applicable School Board policies. Surrancy issued a written Reprimand to Respondent on March 5, 2012. The Reprimand directed Respondent to adhere to school board policies, be punctual, and call Surrancy or an assistant principal before 7:00 a.m. if she were going to be tardy. Respondent nonetheless continued to be tardy, necessitating another CFR, which was held on March 29, 2012. By this time, Respondent had been tardy 86 days and absent 8.5 days in the 2011-2012 school year. During the CFR, Respondent provided two FMLA leave request forms completed by her son's treating physicians certifying the frequency and duration of her son's flare-ups that necessitated leave. One of these, dated March 6, 2012, stated that flare-ups occurred at a frequency of every one to two months for a duration of two to three days, while the other, dated February 20, 2012, stated that the flare-ups occurred approximately once a month and did not specify a duration. Under any circumstances, Respondent was tardy more frequently than the number of days of leave documented as necessary by either of these FMLA forms. Respondent again was given directives, which included those previously provided regarding punctuality and attendance, calling in by 7:00 a.m. if tardiness was anticipated, physician documentation for leave requests, performance of her teaching duties, comporting herself in a manner that reflected credit on herself and Miami-Dade County Public Schools, and adherence to School Board policies and applicable Department of Education rules. Respondent was again provided copies of the policies, rules, and other documents previously given to her. Respondent was offered the option of resigning her position but declined. Surrancy recommended that Respondent be suspended from her teaching position. However, Respondent was not suspended during the 2011-2012 school year.9/ Although Respondent's tardiness during the 2011-2012 school year required coverage of her homeroom class by colleagues on several occasions, she did not miss any classroom instructional time.10/ 2012-2013 School Year For the 2012-2013 school year, Respondent was hired as a math and science teacher in the Educational Alternative Outreach Program's ("EAO") credit recovery program. She was assigned to the EAO's 5000 Role Models location. In this assignment, Respondent taught between 12 and 15 students in grades six through eight. The 5000 Role Models facility was located between 35 and 40 miles from Respondent's home. She had a commute of between one hour ten minutes and two hours one way from her home to 5000 Role Models. The teacher workday hours for this location were 8:20 a.m. to 3:40 p.m. Respondent was informed of this schedule when she was interviewed by EAO Principal Claire Warren, and by letter from Warren regarding her projected teaching assignment for the 2012-2013 school year. Warren credibly testified that at the time she was interviewed, Respondent did not express any concerns regarding this schedule. The student school day at 5000 Role Models started at 9:00 a.m. Shortly after the school year commenced, Respondent began being tardy. During the first week of the students' school year, Respondent was tardy twice, approximately 20 minutes each time. On August 31, 2012, Warren issued Respondent a written memorandum reminding her of the directives that were issued the previous school year and directing her to be punctual and in regular attendance; call before 8:00 a.m. to notify either Warren or the assistant principal if she was going to be absent or tardy; provide physician documentation for absences and tardies due to illness; timely submit updated FMLA forms if anticipated illness or tardies covered under the FMLA are anticipated; adhere to all School Board policies; and perform her job responsibilities. Respondent was placed on notice that noncompliance with these directives would constitute gross insubordination and would necessitate notification of the Office of Professional Standards for the imposition of discipline. Respondent continued to be tardy. As of October 1, 2012, Respondent had been tardy eight times11/ and absent three days.12/ On some of the days she was tardy, Respondent did not call to notify the administration, as she had been directed to do; on other days, she sent text messages but did not call. Warren conducted another conference with Respondent on October 1, 2012. She issued another memorandum documenting Respondent's tardies since the beginning of the 2012-2013 school year, reiterating the directives previously issued on August 31, and notifying Respondent that failure to comply with the directives would constitute gross insubordination. Warren also provided a letter to Respondent regarding FMLA coverage of her tardies and absences. The letter informed Respondent that only absences, i.e., time away from the worksite, and not tardies were covered by the FMLA, and that it was her responsibility to notify the school if she were going to be absent pursuant to an FMLA-certified illness event. Attached to the letter was an FMLA Form to enable Respondent to update her FMLA-covered illness certification as necessary. Respondent's tardies continued. She was tardy on October 2, 5, 8, and 9——on some of these days as much as 45 to 70 minutes late. On the days when she was tardy by 40 or more minutes, she missed classroom instructional time and her students had to be placed in another teacher's classroom. On October 10, 2012, Petitioner took action to suspend Respondent for 30 workdays without pay,13/ for gross insubordination and for violating School Board policies regarding the Code of Ethics (policy 3210), Standards of Ethical Conduct (policy 3210.01), and Leaves of Absence (policy 3430), and rules 6B-1.001, 6B-1.006, and 6B-4.009.14/ Respondent served her suspension and returned to work on November 26, 2012. On that day, she was 11 minutes tardy; the following day, she was 40 minutes tardy. On November 29, 2012, Warren issued another memorandum to Respondent reiterating the directives previously given on August 31 and October 1. Respondent was informed that her failure to comply with the directives would constitute gross insubordination and would necessitate referral to the Office of Professional Standards for further discipline. Respondent continued to be tardy. In December 2012 and January 2013, Respondent was tardy 13 days, two of which required coverage of her class. Respondent did not call in to the school to notify them of her anticipated tardiness but she did notify the school by text message on some of these occasions. On February 1, 2013, Respondent was notified of a CFR scheduled for February 5, 2013. On February 4, 2013, Respondent notified Warren by electronic mail that she would not be at school that day or the following day. On February 6, 2013, Respondent notified Warren by electronic mail that she was taking a leave of absence "for at least the next few weeks." She also informed Warren that her absences the previous two days had been due to her own illness. Respondent did not submit a leave request form to Warren prior to taking sick leave. Respondent did submit a Leave of Absence Medical Documentation Form to the Miami-Dade County Public Schools Office of Retirement/Leave/Unemployment Compensation ("Leave Office") on February 5, 2013, containing her physician's certification that she was ill and recommending a leave of absence from February 4, 2013, to March 1, 2013. Because she was requesting approval of leave for less than 30 days' duration, under the UTD Contract, Respondent should have filed her leave request with Warren rather than with the Leave Office. UTD Contract Article XIV, section 2, paragraph A., governing notification in the event of teacher absence, states in pertinent part: When a teacher, for whom an emergency temporary instructor is employed, will be absent from work, due to illness or injury or due to personal reasons, he/she shall notify the supervising administrator (or designee), as soon as possible, but no later than one hour before the start of his/her scheduled workday, in order that an emergency temporary instructor can be employed or other arrangements made. If said absence/leave is for a specified period of time, no further notice is necessary. In the event of a change in this specified period of absence, the employee will proceed, pursuant to the stipulations herein. Where an absent teacher does not notify his/her supervising administrator, as stipulated herein, and where there are not extenuating circumstances, as determined by the supervising administrator, such teacher will have the option to utilize personal leave or leave without pay. However, such determination by the supervising administrator shall not be made arbitrarily. UTD Contract, art. XIV, § 2.A. (emphasis added). Article XIV, section 10, governs sick leave without pay for illness. Paragraph C. of that section states: "[e]mployees whose illness requires an absence of over 30 days must file an application for extended sick leave indicating the anticipated length of such absence and supported by a statement from competent medical authority." This leave request would be filed with the Leave Office. However, because Respondent did not request sick leave for a period exceeding 30 days, this provision was not applicable to her leave request. Notwithstanding, Respondent's leave request was reviewed by a medical consultant for Miami-Dade County Public Schools and ultimately was denied. Apparently, some time elapsed before the Leave Office forwarded Respondent's leave request and denial decision to Warren. Warren testified: "I didn't get the request until much afterwards, you know, after she had been out several days " Even after Warren received Respondent's leave request form and denial from the Leave Office, more time passed before she notified Respondent. It was not until March 1, 2013, that Warren sent Respondent a letter informing her that her leave request had been denied and that her absences for the entire month of February were unauthorized, thus warranting her dismissal on the basis of job abandonment. At approximately the same time Warren notified Respondent that her leave request was denied, Warren also notified Respondent, by separate email, that she had incorrectly submitted her leave request to the Leave Office, instead of submitting it to her (Warren). On the same day that Warren notified Respondent that her leave request had been denied, Respondent submitted another leave request form and a medical documentation form to Warren, retroactively requesting approval of her sick leave taken between February 4 to March 18, 2013, due to her own illness. Warren denied the request that same day, citing the medical consultant's determination as the basis for the denial. Warren's letter did not cite an independent basis for the denial. Petitioner did not present any competent evidence regarding the specific basis for the medical consultant's determination to deny the request. Respondent returned to work on March 4, 2013. She was tardy that day and the following day. On March 6, 2013, a CFR was held. The CFR originally had been scheduled for February 5, 2013, but when Respondent took leave, it was rescheduled. At the meeting, Respondent was apprised that her tardies and absences were excessive and that they, along with her failure to adhere to the other previously issued directives, constituted gross insubordination. On March 13, 2013, Petitioner took action to suspend Respondent without pay and terminate her employment as a teacher. Respondent's Criminal History Petitioner presented evidence that in August 2012, a records check for Respondent was generated after information was received from Petitioner's Fingerprinting Office indicating that Respondent had been arrested in January 2011 for violation of a protective injunction and in July 2011 for battery. However, this evidence consisted solely of hearsay. Petitioner did not present any non-hearsay evidence establishing that these arrests occurred. Respondent denied that she was arrested in January 2011. She acknowledged that she was arrested for battery in July 2011. She testified, credibly, that the arrest occurred over the July 4th holiday and that she timely reported this arrest by calling Petitioner's instructional staffing office. Respondent credibly testified that the charge was not prosecuted and ultimately was dismissed. Petitioner did not present any competent or credible evidence to refute Respondent's testimony on these points. Respondent's Defenses Respondent asserts that she was not tardy as frequently in the 2011-2012 school year as Petitioner asserts. She questions the accuracy of Surrancy's and others' recordkeeping regarding her tardiness. However, she did not present any specific evidence to show that Petitioner's records of her tardiness in the 2011-2012 were inaccurate; thus, her position on that point is essentially speculative. She also claims that Surrancy did not treat her fairly or equitably during the 2011-2012 school year. Specifically, she asserts that Surrancy had the authority and flexibility to adjust her workday schedule so that she did not have to cover a homeroom class, thus allowing her to arrive at work later, but that Surrancy unfairly chose not to do so. Respondent further asserts that Surrancy had provided such accommodation to another teacher in a previous school year. Thus, Respondent claims that Surrancy treated her unfairly.15/ However, Surrancy testified, persuasively, that she could not have relieved Respondent of having a homeroom in order to enable her to arrive later in the workday because instructional personnel, other than coaches and co-teachers, were assigned homeroom or other professional duties that required them to be at school during regular workday hours. Thus, there was no one else available to assume Respondent's homeroom class responsibilities.16/ Respondent also asserts that Surrancy treated her disparately and unfairly by singling her out for discipline for her tardies, while not disciplining others who also were often tardy. However, even if that were the case, it does not excuse Respondent's tardies or provide a basis for Surrancy to decline to enforce school policies with respect to Respondent. Respondent also asserts that she was not afforded the FMLA leave to which she was legally and contractually entitled. Specifically, she argues that she filed FMLA leave forms stating the need for intermittent leave to care for her son, so that for the days on which she was tardy, the number of minutes by which she was tardy should have been counted as leave under the FMLA. Respondent testified, credibly, that she did not purposely refuse to follow the directives given her by Surrancy, Warren, and the Office of Professional Standards, and that her tardies during both school years were the result of her having to provide medical care for her young son and take him to daycare, then commute in heavy traffic to the worksites. Moreover, to the extent Petitioner claimed that Respondent was insubordinate because she did not adhere to directives to call the school if she was going to be tardy, Respondent credibly countered that she often would call in, only to be put on hold for some time and then told that the administrator she was attempting to reach was not available; thus, she started sending text messages instead to ensure that her message was received. Regarding the arrest reporting issue, Respondent denied that she was arrested in January 2011, and testified that she timely reported her July 2011 arrest to the appropriate authority. Findings of Ultimate Fact In these consolidated proceedings, Petitioner seeks to suspend Respondent without pay and terminate her employment17/ as a teacher on the basis of just cause——specifically, gross insubordination and misconduct in office.18/ As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.33 and rules 6A-5.056; and 6B-1.001 and 6A-10.080; and 6B-1.006 and 6A-10.081. Gross Insubordination Pursuant to the foregoing findings of fact, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent's conduct in accruing an extensive number of tardies during the 2011-2012 and 2012-2013 school years constituted gross insubordination. Although Respondent did submit leave request forms estimating the frequency and duration of FMLA-covered leave she would need in order to care for her son, the evidence shows that she was tardy far more frequently than supported by any of the forms she submitted. In order to accommodate an employee's FMLA request, Petitioner must be able to rely on the information the employee provides on the FMLA leave form. If the information provided on the form is inaccurate, Petitioner is neither required nor authorized to consider undocumented time away from the work site as leave covered under the FMLA.19/ While it is admittedly difficult to precisely predict when illness will occur, under any circumstances, the forms Respondent submitted did not cover the frequency of her tardies incurred in the 2011- 2012 and 2012-2013 school years.20/ As addressed above, it appears that Respondent was the victim of a coalescence of unfortunate personal circumstances that interfered with her employment. Nonetheless, the fact remains that she was repeatedly put on notice by Surrancy, Warren, and the Office of Professional Standards that her continued tardiness would constitute gross insubordination. Any measures that Respondent purportedly took to rectify the circumstances, such as enlisting the help of a friend to take her son to daycare, apparently were unsuccessful. Respondent had the option in the 2011-2012 school year to transfer to another school to address the morning commute issues, but she chose not to. Although she had legitimate personal and professional reasons for choosing to remain at HMS, the fact remains that she elected not to pursue a course of action that may have addressed the problematic circumstances she found herself in. Under these circumstances, the undersigned concludes, albeit reluctantly, that Respondent's conduct——which took place over a period of two school years, after frequent admonitions, and after she had been placed on notice several times that her continued conduct would constitute gross insubordination——does, in fact, constitute gross insubordination. With respect to Respondent's absences in February 2013, the evidence indicates that Petitioner's Leave Office and Principal Warren unnecessarily delayed notifying Respondent that her leave request for February 2013 had been denied. The evidence gives rise to the inference that Respondent may have cut her leave short and returned to the work site had she been timely informed that her request had been denied. Moreover, Petitioner presented no competent evidence regarding the specific basis for the Leave Office's denial of Respondent's request, or for Warren's denial of Respondent's retroactive request on the same basis. Under these circumstances, the undersigned determines that Respondent's absences for the month of February 2013 should not be considered unexcused. However, even without considering these absences, Respondent's repeated tardiness over an extended period of time without proper leave documentation and after extensive prior notice of the consequences, is sufficient to establish gross insubordination. Misconduct in Office As more fully discussed below, Petitioner proved, by a preponderance of the evidence, that Respondent committed misconduct in office under both versions of rule 6A-5.056 in effect in the 2011-2012 and 2012-2013 school years, respectively. Specifically, Respondent's frequent and repeated tardiness during the 2011-2012 school year violated the Code of Ethics in the Education Profession because her conduct caused her to lose the respect and confidence of her colleagues. In particular, Respondent's frequent tardiness substantially undermined Surrancy's confidence in her reliability, and, thus, impaired her effectiveness in the school system. Respondent's frequent and repeated tardiness over the course of the 2012-2013 school year also constituted misconduct in office. Again, she violated the Code of Ethics in the Education Profession by failing to maintain the respect and confidence of her colleagues. Respondent's frequent tardiness adversely affected Warren's confidence in her reliability. Additionally, on the days when Respondent's tardiness necessitated her students being moved to another teacher's classroom, her students' learning environment was disrupted, and her own ability and that of her colleagues to effectively perform their duties was reduced. As a result, Respondent's effectiveness in the school system was impaired. Petitioner also charged Respondent with violating Policy 3210, Standards of Ethical Conduct, which provides that all employees are representatives of the Miami-Dade County School District and requires employees to conduct themselves in a manner that will reflect credit upon themselves and the school system. Respondent's frequent tardies over an extended period of time gave the appearance of disregard for school policies and did not reflect credit on her or on the school district. Moreover, Respondent did not protect her students from conditions harmful to learning on the days when they had to be moved to another teacher's classroom due to her tardiness.21/ Accordingly, Respondent violated Policy 3210. Respondent also violated Policy 3210.01, Petitioner's Code of Ethics. As found above, she did not protect her students from conditions harmful to learning on the days when she was so tardy that they had to be moved to another classroom. However, Respondent did not violate Policy 3430, Leaves of Absence. For the reasons discussed above, Respondent's absences in February 2013 should not have been determined unexcused; thus, she did not violate Policy 3430. Respondent also did not violate Policy 3121.01, Employment Standards and Fingerprinting of Employees. To the extent Petitioner argues that Respondent lacks good moral character based on having been arrested, Petitioner did not present any competent evidence regarding her arrests or failure to timely report them as required by school board policy. Respondent acknowledged that she had been arrested in July 2011 but testified that she had timely reported it, and that the charge ultimately was dismissed. Petitioner did not offer any competent evidence22/ to counter Respondent's testimony, which is deemed credible and persuasive. Factual Basis for Recommended Sanction The persuasive evidence establishes that Respondent did not purposely set out to violate school policies and Department of Education rules, but that circumstances coalesced such that Respondent found herself in the extremely difficult position of having to care for her very ill son and take him to daycare, then undertake a lengthy commute in morning traffic, without enough time to accomplish both. As unfortunate and trying as those circumstances were, they do not excuse Respondent from complying with the crucial and reasonable requirement that employees arrive to work on time.23/ Nonetheless, the evidence establishes that Respondent is an innovative, proficient teacher in the critical subject areas of science and math, and that she cares about performing her job well——to the extent that she declined an out-of-field teaching assignment, in part due to concern that she would not perform effectively in that assignment. As such, it is reasonable to infer that under less demanding circumstances, such as having a shorter commute or a later workday starting time, Respondent would perform her teaching duties proficiently and professionally. The circumstances in this case warrant upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013- 2014 school year, and denying back pay for the full period of her suspension. However, given the very trying circumstances Respondent faced in the 2011-2012 and 2012-2013 school years, and because the evidence indicates that under less oppressive circumstances Respondent likely would be an innovative, proficient, and professional teacher, the undersigned believes that terminating Respondent's employment would be excessively harsh and that Petitioner would lose a good teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013-2014 school year; denying back pay for the full period of her suspension; and reinstating Respondent's employment as a teacher at the start of the 2014- 2015 school year. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 31st day of March, 2014
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.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Ms. Williams has been employed by the School Board for 15 years and is currently a 12-month custodian at Longwood Elementary School (School), located in Seminole County, Florida. As a 12-month custodian, Ms. Williams is allowed sick and annual leave. Ms. Williams requested leave beginning July 7, 2010, to September 29, 2010, for back surgery. On August 10, 2010, the School received a letter dated July 8, 2010, from Ms. Williams's physician, advising that Ms. Williams had undergone surgery for a spinal disorder on July 7, 2010, and would need 12 weeks to recover prior to returning to work. On October 1, 2010, Ms. Williams called the School and advised that she was not able to return to work and requested leave from September 30, 2010, through October 28, 2010. Her physician sent a letter dated September 30, 2010, to the School, advising that Ms. Williams would need an additional four weeks for recovery. By this time, Ms. Williams had exhausted all her paid leave and was on leave without pay. Ms. Williams was unable to come to the School to sign the application for leave; however, the leave was approved by the principal of the School, Virginia Fisher (Ms. Fisher), who was Ms. Williams's direct supervisor. By November 2, 2010, Ms. Williams was still unable to return to work, and her physician sent another letter to the School, advising that Ms. Williams would need an additional four weeks for recovery. Ms. Williams requested leave from November 2, 2010, to November 30, 2010. Again, Ms. Williams was unable to come to the School to sign the application for leave, but it was approved by Ms. Fisher. By December 1, 2010, Ms. Williams was still unable to return to work and requested leave from December 1, 2010, through January 3, 2011. Her physician sent a letter to the School, stating that Ms. Williams needed an additional four weeks for recovery. Ms. Williams was unable to come to the School to sign the application, and the leave request was approved by Ms. Fisher. Ms. Williams's physician sent a letter dated December 27, 2010, to the School, stating that Ms. Williams had not quite reached maximum medical improvement with respect to her recovery and that he would need to see her in four weeks for reevaluation. Ms. Williams signed and submitted an application for leave for January 4, 2011, through January 24, 2011. The leave was approved. Ms. Williams's physician submitted a Return to Work/School Certificate dated January 21, 2011, to the School, stating that Ms. Williams would be able to return to work on January 24, 2011, with the following restrictions: "light duty with no repetitive lifting over her head, lifting restriction of = 30 lbs." Ms. Williams discussed the issue of light duty with Steve Bouzianis (Mr. Bouzianis), director of Human Resources, Staffing and Operations for the School Board. She told him that she had been advised by staff at the School that she needed to come back to work or submit a request for additional leave. Mr. Bouzianis informed her that she could not do the custodial job with the restrictions set by her physician. Ms. Williams was advised to submit a request for leave and was told that it would be approved. By February 18, 2011, Ms. Williams had not submitted a request for leave or submitted a letter from her physician stating that she needed to be absent from work due to an illness. By letter dated February 18, 2011, Ms. Fisher enclosed a leave request form and directed Ms. Williams to complete the form and return it to her, along with a physician's statement substantiating Ms. Williams's need for her absences no later than February 23, 2011. Ms. Fisher further advised that, if Ms. Williams could not obtain a physician's statement, Ms. Fisher would approve the leave for the remainder of the year as personal leave without pay. Ms. Fisher advised in the letter of the consequences for failure to request leave and stated: Should you fail to return to me your signed request for leave form and the supporting physician's statement (if applicable) by the date identified above [February 23, 2011], you will be considered as absent from duty without approved leave, and in violation of adopted School Board policy. In that event, the Superintendent of Schools will recommend to the School Board that you be suspended from your duties and further that your employment with the School Board of Seminole County, Florida[,] be terminated. The School received a letter dated February 22, 2011, from Ms. Williams's physician, who stated that Ms. Williams could return to work on January 24, 2011, with the same restrictions previously listed on the Return to Work/School Certificate. On February 23, 2011, Cynthia Frye (Ms. Frye), who is Ms. Fisher's assistant, attempted to call Ms. Williams at her sister's telephone number, which is the number that Ms. Williams had given the School to contact in case of an emergency. At the time, Ms. Williams was living with her sister and staying some of the time with her son. Ms. Frye called at 2:37 p.m., and got no answer, and called again at 3:15 p.m., at which time she spoke to Ms. Williams's sister. Ms. Frye told the sister that it was important that Ms. Williams call Ms. Frye. Ms. Williams had not called Ms. Frye by the morning of February 24, 2011. Ms. Frye attempted to call Ms. Williams twice during the morning of February 24, 2011, and three times during the afternoon. On the last call, she left a message with Ms. Williams's sister that it was imperative that Ms. Williams call Ms. Frye that night or Ms. Frye could not help Ms. Williams. By March 4, 2011, the School still had not heard from Ms. Williams. Ms. Fisher sent Ms. Williams a letter dated March 4, 2011, stating that, because Ms. Williams had not contacted the School to request leave, Ms. Williams's absences since January 25, 2011, were considered as absences from duty without approved leave. Ms. Fisher advised Ms. Williams that, based on Ms. Williams's third and continuing absences, Ms. Fisher would recommend to the superintendent of schools that Ms. Williams's employment with the Seminole County Public Schools be terminated. When questioned at the final hearing concerning her reasoning for not requesting leave, Ms. Williams indicated that she wanted to work, but the School would not let her come back to work with light duty restrictions. She contacted her attorney and, based on his advice, did not request leave. Ms. Williams's employment is governed by the Official Agreement between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc., and the School Board (Agreement). Article VII of the Agreement provides: Section 4. * * * B. A regular employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. * * * Section 5. A. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following provided that just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employees leaves the work site after the equipment, if applicable, has been checked in Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools, or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. * * * Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. * * * Section 15. Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension without pay. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommendation for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Ms. Williams's employment with the School Board. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 28th day of July, 2011.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of her national origin in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Petitioner's national origin is Spanish. At all times material hereto, Petitioner was employed by Respondent as a Customer Service Representative (CSR) at its West Palm Beach-Okeechobee branch (Branch Office) and was the only CSR at the Branch Office whose national origin was Spanish. A CSR is commonly known as a teller. At all times material hereto, Petitioner was a single parent. At all times material hereto, Respondent was an employer as defined by the Florida Civil Rights Act of 1992, as amended. In December 1994, Fran Bessent became the branch manager at the Branch Office. At that time and before she became branch manager, the Branch Office was extremely busy on Saturdays, and on a per-hour basis, Saturday was the busiest time of the week. Five to seven CSRs were employed at the Branch Office. In January 1995, Ms. Bessent met with the entire staff of the Branch Office. The meeting was mandatory. At the meeting, she informed the CSRs that, among other things, they would be required to work each and every Saturday and that, in return for working on Saturdays, the CSRs would be given a day off during the week. Petitioner was present during this meeting. At the mandatory meeting, Ms. Bessent also informed the CSRs that, if any one of them had a problem with working on Saturdays, he or she could seek a vacant position at and transfer to another branch office that was not as busy. She further informed the CSRs that, if any of them wanted a transfer, they had the responsibility of applying for the position and requesting the transfer. As branch manager, Ms. Bessent was responsible for preparing the work schedule for all employees. She prepared the work schedule between the tenth and the 15th of each month. Before making the change in the work schedule, reflecting CSRs working all Saturdays, she waited 30 to 45 days before implementing the change. Petitioner had a problem with coming to work each Saturday. She had a child and had problems getting a babysitter each and every Saturday. At all times material hereto, Petitioner had two supervisors, Namrata Gupta and Richard Danca,2 who were assistant branch managers at the Branch Office. The undersigned finds Petitioner's testimony credible that, after the mandatory meeting, she informed a supervisor as to her problem with reporting to work on Saturdays. Petitioner did not inform Ms. Gupta as to the problem with reporting to work on Saturdays. However, an inference is made that she informed Mr. Danca. Even though Petitioner had a problem with coming to work on Saturdays, the responsibility was still upon Petitioner to apply for a position at a branch not as busy and to seek a transfer. At no time did Petitioner apply for a position at another branch or seek a transfer. One CSR, Wendy Morgan, expressed difficulty with working on Saturdays and actively sought a position at another branch office. She was eventually transferred. Prior to her transfer, Ms. Morgan had no unexcused absences. Ms. Bessent made the work schedule available one month in advance. This advance notice provided employees an opportunity to make appropriate arrangements to accommodate the work schedule. Any employee who was not able to work on a particular Saturday in a month was required to notify Ms. Bessent in writing no later than the tenth day of the prior month. Shortly after the new Saturday schedule was implemented, Petitioner failed to report to work on three Saturdays, for which she was scheduled to work, in less than one month. Those Saturdays were March 31, 1995 and April 15 and 29, 1995. She was unable to obtain the services of a babysitter on those Saturdays. Petitioner did not notify Ms. Bessent in advance of her inability to work on those Saturdays. If an employee, including a CSR, at the Branch Office was going to be absent from work, the employee was required to contact his/her supervisor. Petitioner maintains that she contacted her supervisor or “somebody” on the day of the absences in March and April 1995 and informed the person that she was not reporting to work. Even though Petitioner called the Branch Office on the day of her absences, she was unsure as to whether she spoke with one of her supervisors, which was the required procedure. The undersigned finds Petitioner’s testimony credible, and the testimony of Ms. Gupta credible that Petitioner did not contact her regarding the absences. An inference is made that Petitioner spoke with "somebody" who was not one of her supervisors. Petitioner's absence on the aforementioned Saturdays placed a hardship on the Branch Office. The assistant branch managers and the remaining CSRs were forced to cover Petitioner’s position and their own positions and to accommodate the customers. Branch managers had the authority to discipline employees for excessive absences. In making such a determination, the branch managers looked for a pattern of absences, focusing on how the absences impacted a branch office and customer service. The decision was made that Petitioner’s absences were excessive and to verbally counsel Petitioner regarding her absences. On May 11, 1995, the assistant branch managers verbally counseled Petitioner about her excessive absences. The branch managers questioned Petitioner at the counseling session as to whether she had an explanation for her absences. Petitioner failed to provide an explanation. After only two days following the verbal counseling, Petitioner again failed to report to work on Saturday, May 13, 1995. Petitioner called the Branch Office on the same day and indicated that she was not reporting to work. The undersigned again finds Petitioner's testimony credible that, when she called, she spoke with her supervisor or somebody. However, Petitioner did not speak to Ms. Gupta. The absence on May 13, 1995, was Petitioner's fourth absence. The decision was made by Petitioner's supervisors to give her a written warning and place her on a 90-day probation. On May 26, 1995, in a document entitled "Formal Performance Documentation" (FPD), Petitioner's supervisors gave her the written warning and placed her on the probation. In the FPD, the supervisors stated, among other things, that "Improvement is expected immediately" and that "any further incidents involving absences may result in further disciplinary action up to and including termination". Petitioner's supervisors discussed the FPD with her. Petitioner was informed that she could make any comments that she desired to make. The FPD contained a section for Petitioner to make comments, but she did not make any comments on it. Petitioner also refused to sign the FPD. After having been counseled, given a written warning, and placed on probation, Petitioner again failed to report to work. Petitioner was absent on June 16 and 17, 1995. Petitioner admits that she was absent on June 17th but does not recall being absent on June 16th. The undersigned again finds Petitioner's testimony credible that she called the Branch Office on the day of the absence acknowledged by her, and spoke with her supervisor or "somebody." Petitioner did not speak to Ms. Gupta, and an inference is made that Petitioner spoke with "somebody" who was not one of her supervisors. Petitioner violated the terms of her probation. Even if Petitioner was absent only on June 17th, she violated her probation. After the June absences, Petitioner's supervisors discussed the absences with Ms. Bessent. They decided that Petitioner exhibited a pattern of absences in March through June 1995, which constituted excessive absences. They further decided that Petitioner should be terminated. On June 21, 1995, Petitioner's supervisors terminated her employment with Respondent for excessive absences. The termination was memorialized in a document entitled "Termination of Employment and Exit Interview" (TEEI). In addition to the TEEI, Petitioner was verbally informed of the reason for her termination. The TEEI contained a section for Petitioner to make comments, but she did not write any comments. Further, Petitioner refused to sign the TEEI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Chiara T. Spradlin against Washington Mutual Bank, f/k/a Great Western. DONE AND ENTERED this 22nd day of March, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 22nd day of March, 2001.
