The Issue The issue is whether Petitioner had just cause to terminate Respondent's employment.
Findings Of Fact At all times relevant to this proceeding, Respondent worked for Petitioner as a custodian at Petitioner's Longleaf Elementary School (Longleaf) in Pensacola, Florida. Respondent worked as a custodian at Longleaf for at least four years. Longleaf provides instruction to students from kindergarten through the 5th grade. The school has approximately 750 students and 37 certified teachers. In total, approximately 75 employees work at the school, including administrative staff, support personnel such as clerk-typists, teacher assistants, bus drivers, kitchen staff, and custodians. Longleaf has 35 classrooms. Five classrooms are located in each of five pods. The other classrooms are freestanding self-contained portables. In addition to the classrooms, Longleaf has numerous offices, halls, buildings, or structures including restrooms, kitchen facilities, and a cafeteria. At all times relevant here, Longleaf's custodial staff consisted of five employees, including Respondent and Willie Walker, the custodial supervisor/head custodian. On a normal school day, the custodian designated as the day mate arrived at the school at 7:00 a.m., to work an eight-hour shift. Respondent, Mr. Walker, and one other custodian began their shift around noon every day. Edward Jones, the fifth custodian, began his eight-hour shift at 3:00 p.m. Regardless of the time that the custodians began their shifts, the custodial team was responsible for cleaning 18,000 square feet of space per day. At the beginning of each school year, the custodians received individual work assignments. Each custodian, including Mr. Walker, was assigned specific rooms and outside areas to keep clean on a daily basis. They were also given additional duties on a weekly, monthly, and annual basis. Each custodian had a full day of work everyday. Occasionally, Petitioner will furnish a school with a substitute custodian when a regular custodian is absent. However, most of the time, substitute custodians are not available unless at least one-third of the staff is absent. Therefore, when only one custodian is absent, the custodial team has to take on additional work to cover the work assignments of the absent colleague. If two custodians are absent at the same time and no substitute is available, the remaining employees have to almost double their work schedule. When one custodian is out of work for a number of successive days, other custodians will also take time off. When the custodians are required to take on additional work assignments for long periods of time, they need time off to recoup from the extra work. The principal and the head custodian at each school are the only employees that Petitioner hires for twelve months. The remaining custodians usually start to work about two weeks before the students begin a new school year. They work for two weeks after the students finish a school year. The school year begins in July of one year and ends in June of the next year. When a school custodian requests a leave of absence for any reason, the school's principal must first approve or disapprove the request. The request form is then sent to Petitioner's human resource department. Next, the human resource department sends the request form to the school superintendent, who must approve or disapprove the requested leave. Petitioner, sitting as a collegial body, makes the final decision whether to approve or disapprove a request for leave of absence, with or without pay. Dr. Joyce Payton has been principal of Longleaf since 1997. In March 1999, Dr. Payton had a counseling session with Respondent. During the meeting, Dr. Payton and Respondent discussed the following: (a) Respondent's failure to record the accurate sign-in time when he arrived at work; and (b) Respondent's excessive tardiness. In June 1999, Respondent expressed his desire to transfer to another school because he could not get along with Mr. Walker. However, Respondent never submitted a formal request for a transfer to posted openings at other schools. In the summer of 1999, Respondent was arrested and charged with domestic battery. Respondent was placed on one year of probation with a $45 per month supervision fee. He was also required to complete 24 domestic violence classes at the cost of $15 per class. On August 9, 1999, Dr. Payton informed Respondent that all annual leave had to be approved by her in advance. She also stated that she would not approve any more sick leave for Respondent unless he called before 12:30 p.m., or furnished a doctor's note. Respondent was absent for 10 of the first 33 working days for the 1999-2000 school year. These absences took place between July 19, 1999, and September 1, 1999. Dr. Payton did not approve Petitioner's sick leave request form for three of these days, August 10-12, 1999, because he did not have a note containing a doctor's signature. The emergency room discharge instructions dated August 10, 1999, which was attached to Respondent's sick leave request form, states that Respondent should rest and avoid strenuous activity for the balance of that day. This discharge notice was not signed by a doctor and did not explain Respondent's absence on August 11 and 12, 1999. On September 1, 1999, Respondent was in an automobile accident. Between September 2, 1999, and November 30, 1999, Petitioner was out of work on approved sick leave for a total of 52 workdays. The doctor released Respondent to return to work with no restrictions on December 1, 1999. On January 3, 2000, Respondent requested sick leave for two hours on January 3, 2000, and for all day on January 4 and 5, 2000. The record does not contain a doctor's note to explain this absence. Respondent was absent even though Dr. Payton did not approve this leave request. On May 22, 2000, Dr. Payton meet with Respondent to assess his performance for the 1999-2000 school year. The rating form indicates that Respondent met the requirements of his job. However, the form contains the following comment by Dr. Payton: Mr. Sinkfield was out a total of 97 days this year. Fifty-two of these days were a result of a car accident. We have talked about the significance of his time at work improving next year. Respondent signed this document, indicating that he had an opportunity to discuss the assessment with his employer. In July 2000, Respondent was arrested for violation of probation on grounds that he had not completed all of the required domestic violence classes. He was allowed five days to settle his affairs before turning himself in on July 14, 2000. For several days, Respondent visited Longleaf in an effort to notify Dr. Payton about his impending incarceration. No one was in the school office during these visits. On July 14, 2000, Respondent's mother drove him to Longleaf to see if Dr. Payton was there. Finding no one at the school, Respondent's mother drove him to Petitioner's headquarters where Respondent spoke to Ms. Ella Sims, Petitioner's Assistant Superintendent for Human Resources. Respondent explained to Ms. Sims that he was going to be incarcerated and needed to request a leave of absence. Ms. Sims informed Respondent that he needed Dr. Payton's approval for a leave of absence. She did not give Respondent a leave of absence request form. Respondent's mother then drove him to his probation officer so that he could turn himself in. He was jailed without bond. Inmates at the Escambia County Jail are permitted to make outside telephone calls. However, inmates may only call numbers that they write on a list at the time they are booked. Inmates may add telephone numbers to this list only once every six weeks. The inmate telephone system is a fully automated system. Each completed local call costs one dollar. A call is completed when a person, answering machine, or other electronic device answers the call. Inmates may attempt up to ten local calls per day. Indigent inmates are allowed to make one completed telephone call every seven days. Inmates may make telephone calls with the assistance of a counselor or chaplain in certain verifiable emergency situations such as the death of a family member. When taken into custody, Respondent listed the telephone numbers of his family. He also included the telephone number of Longleaf. While in custody, Respondent successfully made telephone calls to his family. He was unsuccessful in completing a call to Dr. Payton at Longleaf. He could not get the counselor or chaplain to help him call the school. During the summer of 2000, Longleaf changed its telephone number. A person dialing the old number would get a recording announcing the new number. For some unexplained reason, Longleaf's change-of-number recording did not play when Respondent called the school using the old number. Respondent was unable to complete a telephone call to the school even when he amended his telephone list to include the school's new number. Because he was incarcerated, Respondent did not report to work on July 17, 2000, as required for the 2000-2001 school year. Respondent's mother called Dr. Payton that day to inform her that Respondent was in jail and would not report to work until at least September 2, 2001. Dr. Payton told Respondent's mother to have Respondent call the school from jail. Dr. Payton did not receive a telephone call from Respondent. She did not authorize leave for Respondent from July 17, 2001, forward in time. Instead, Dr. Payton decided to seek termination of Respondent's job. Respondent's mother visited Longleaf early in August of 2000. While she was at the school, Respondent's mother told Dr. Payton that Respondent could not call the school from jail. After talking to Respondent's probation officer, Dr. Payton told Respondent's mother that Respondent could call the school from the jail and that he needed to do so personally. Dr. Payton sent Respondent a memorandum dated August 4, 2000. The memo advised Respondent that disciplinary action was being considered due to his unauthorized absence and/or his excessive absence. Specifically, the memo states as follows: You failed to return as scheduled for further employment July 17, 2000. You did not notify your employer that you would not be at work as scheduled. You have been absent without authorization or approved leave since that date. You have previously been counseled regarding excessive absences. The memo gave Respondent the right to appear with a representative for a meeting in Dr. Payton's office on August 8, 2000. Petitioner hand-delivered the memo to Respondent. On or about August 10, 2000, Respondent sent Dr. Payton a letter. The letter states that Respondent expected to be in jail until he went back to court on September 1, 2000. Respondent requested Dr. Payton to keep his job if he could not get out of jail. Respondent did not request Dr. Payton to furnish him with leave-of-absence request forms. By letter dated August 29, 2000, Dr. Payton informed Respondent that a disciplinary action was being considered because of his unauthorized absence and/or his excessive absence. The letter reviewed the history of Respondent's absences for the 1999-2000 school year. The letter also stated that Respondent failed to notify Dr. Payton at home or at work that he would not be at work on July 17, 2000. Finally, the letter advised Respondent that there would be a meeting in Dr. Payton's office on September 1, 2000, and that Petitioner and his association representative had a right to attend the meeting. Petitioner hand-delivered this letter to Respondent. Petitioner sent Respondent a Notice of Disciplinary Action dated September 6, 2000, advising him of proposed action to dismiss him effective September 20, 2000. The proposed dismissal was based on the following: (a) excessive absences in the 1999-2000 school year; and (b) failing to report for work on July 17, 2000, and being absent without authorization since that time. On or about September 11, 2000, Respondent wrote a letter directed to Ms. Sims. In the letter, Respondent sought to postpone the consideration of his termination by Petitioner on September 19, 2000. On September 19, 2000, Petitioner approved Dr. Payton's recommendation to terminate Respondent's employment. Respondent was incarcerated until September 24, 2000. In extreme cases in which an employee is physically incapable of requesting a leave of absence in person, such as when an employee is in the hospital or in jail awaiting trial, Petitioner's department of human resources will, upon proper request, make accommodations to provide the employee with the necessary forms to request a leave of absence. In this case, Respondent was serving a sentence previously imposed; he was not awaiting trial. According to Petitioner's practice and procedure, being absent from work because of incarceration does not constitute an excused absence. If Respondent had asked Dr. Payton after he was incarcerated for a leave-of-absence form, she would have directed him to Petitioner's human resource department. She would have made this referral because she had already made the determination to seek termination of Respondent's employment. Under the facts here, Petitioner had just cause to terminate Respondent's employment even if he had timely applied for a leave of absence.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 13th day of June, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Mr. Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32597-1470 Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Mary F. Aspros, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that a Final Order be entered terminating respondent's employment with the Board. DONE AND ENTERED this 30th day of December, 1988, at Tallahassee, Florida. DONALD R. ALEXANDER, 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 30th day of December, 1988.
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent committed an unlawful employment practice by discharging the Petitioner from his position with the Respondent. Petitioner contends that he was discharged on account of his sex. Respondent contends that Petitioner was discharged on account of a severe attendance problem. Petitioner contends that female employees with similar or worse attendance problems were not terminated.
Findings Of Fact The Respondent is a corporation which does business in the State of Florida. The Respondent is a distribution warehouse for Seven-Eleven Stores. The Respondent is an employer within the meaning of the Florida Human Rights Act of 1977. Petitioner is a male citizen of the United States. He was employed in various capacities by the Respondent from January, 1974, until he was discharged on November 24, 1981. At the time of his discharge, he was employed as a receiving clerk in one of the Respondent's warehouse facilities. Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations concerning his discharge in a timely manner. A determination of reasonable cause was issued by the Commission, effort at conciliation failed, and Petitioner filed his Petition for Relief in a timely manner. From late in 1978 until the time that Petitioner was discharged, all of the Petitioner's supervisors at the Respondent experienced difficulties with Petitioner due to a poor attendance record. At the time, the Respondent followed a four-step disciplinary procedure. Step 1 was employee counseling. Step 2 involved issuance of what was called a "pink slip," or unsatisfactory employee report. At Step 3, a final letter of warning would be issued. Step 4 was discharge. The first formal record that Respondent entered Step 1 of the disciplinary procedure was an employee counseling record issued October 31, 1978. It was therein noted that Respondent had failed to call in prior to an absence from his work shift. The second employee counseling record was issued April 4, 1978. The Petitioner's supervisor discussed repeated tardiness and absences with him on that occasion. Additional counseling records were issued April 11, 1979, and April 30, 1979, and raised the same problems. While these were apparently the only formal records of employee counseling, the Petitioner had been counseled on numerous other occasions regarding excessive tardiness and absenteeism. Respondent entered Step 2 of the disciplinary procedure on November 28, 1979, when a "pink slip," or unsatisfactory performance report, was issued. It was therein noted that the Respondent had been counseled about excessive absenteeism and that his performance had not improved. Petitioner's record did not improve, and on March 19, 1980, a warning letter was issued, thus placing Petitioner in the third step of the disciplinary process. The Petitioner's record regarding excessive tardiness and absenteeism was set out in the warning letter, and it was stated that if Petitioner did not improve, it could lead to termination of his employment. Despite issuance of the warning letter, Petitioner's performance did not improve. He continued to be frequently absent or tardy. A second warning letter was issued January 28, 1981. It was therein stated: As indicated to you on your performance review January 14, 1981, you have shown little or no improvement in your attendance since the warning letter of March 19, 1980. Since several months have passed without action, you are being given this letter to serve as formal notice that you remain at the third step of our disciplinary policy. If immediate improvement in [sic] not shown it could lead to termination of your employment. Despite the second warning letter and continuing efforts by Respondent's supervisor to counsel Petitioner, Petitioner's record of excessive absenteeism and tardiness continued. On November 24, 1981, his employment was terminated. At the time of Petitioner's termination, the Respondent did not have an established policy regarding how many times an employee could be late or absent without being subjected to various stages of the Respondent's disciplinary process. The Respondent did, however, have good grounds for counseling, reprimanding, warning, and ultimately terminating Petitioner. The Respondent's supervisors were lenient with Petitioner. He was counseled continuously and warned twice, once more than usual, before he was terminated. Petitioner alleged that three specific female employees of the Respondent had absentee problems as severe or more severe than Petitioner's, but were not terminated. The evidence does not support this allegation. Each of the three female employees, Theresa Roberts, Lisa Watt, and Gloria Sanders, had attendance problems. Each was subjected to disciplinary action by the Respondent. Sanders had received a Step 3 warning in October, 1981. Roberts had received a Step 2 unsatisfactory performance report in November, 1981. Watt had been counseled respecting her problem. None of these three female employees had attendance problems as severe as Petitioner's. Furthermore, each showed some improvement following counseling, unsatisfactory performance reports, or warnings. Nothing in the treatment of these three women vis-a-vis the Respondent's treatment of Petitioner demonstrates any sex-based bias, or discriminatory action, on the part of Respondent. The Respondent now has a set policy that includes a point system regarding discipline based upon excessive absences. The policy was not in effect when Petitioner was terminated. Some people with absentee problems less severe than Petitioner's were terminated for excessive absences during the years 1977 through 1981. Other employees with attendance problems more severe than Petitioner's were not terminated. It does not appear that this disparity had any basis other than the fact that Respondent had no set policy regarding excessive absences and dealt with the issue through its individual supervisors subjectively on a case-by-case basis. In 1981, the Respondent had approximately 170 laborers or unskilled workers in its warehouse. Forty-four of them were females. During the period 1977 through 1981, 20 employees at the warehouse were terminated for excessive absences or tardinesses. Thirteen of them were male, and seven were female. Five of the seven women who were terminated had fewer absences or tardinesses than Petitioner after receipt of the Step 3 warning. Neither these statistics nor any specific evidence regarding disciplinary action taken by Respondent demonstrates any sex-based bias or discrimination.
The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
The Issue The issue is whether Respondent is guilty of willful absence from duty, in violation of Section 1012.67, Florida Statutes; willful neglect of duty, in violation of Sections 447.209, 1012.22(1)(f), and 1012.40, Florida Statutes; gross insubordination, in violation of Sections 447.209, 1012.22(1)(f), and 1012.40, Florida Statutes; and incompetence, in violation of Sections 447.209, 1012.22(1)(f), and 1012.40, Florida Statutes.
Findings Of Fact During the 2001-02 school year, Petitioner employed Respondent as a part-time cafeteria worker at Ludlam Elementary School. Except for the manager, all food workers at the school are part-time employees. The absence of any of these workers, especially without notice on the morning of the nonappearance, places a considerable burden on the other cafeteria workers and jeopardizes the provision of what may be the first meal of the day for many students. By January 24, 2002, Respondent had been absent 16 days, including the four consecutive days preceding Christmas vacation, four of five days in mid-January, and January 22-24, 2002. Responding to this problem, the school principal sent Respondent a memorandum dated January 24 and ordering her to notify the principal of when Respondent intended to return to work and use leave procedures in the future. On the same date, the principal sent another memorandum to Respondent ordering her to communicate directly to the principal when Respondent intended to be absent and document future absences with medical excuses. Respondent signed this memorandum, indicating receipt. On Sunday, January 27, 2002, Respondent telephoned the principal and told her that Respondent would be returning to work the following day. The next day, when Respondent appeared at work, the principal talked to her about Respondent's professional responsibilities and offered to refer her to the Employee Assistance Program for help with a problem with alcohol that Respondent said that she had. Respondent declined the offer and said she would follow the principal's orders. The next day, Respondent arrived to work late. The following day, Respondent did not report to work or call in to notify the school of her absence. The two succeeding days, Respondent did not report to work, but she called the principal to say that she was in the hospital. However, on the last day of the week, Respondent did not report to work and did not call in. On February 11, 2002, the principal conducted a conference-for-the-record (CFR) with Respondent. Respondent said that she had been a recovering alcoholic for 15 years and had been encountering problems with alcohol since October. The principal again offered a referral to the Employee Assistance Program, but Respondent said that she was already in counseling. The principal warned Respondent that further noncompliance with her order would be gross insubordination. On February 19 and 20, 2002, Respondent was again absent and again failed to notify anyone at school of her absence. On the next day, the principal sent another warning memorandum to Respondent. On February 26 and March 11, 2002, Respondent again missed work and again failed to call anyone at the school. Respondent never provided medical documentation for these absences. Also, on March 5 and 8, 2002, Respondent was tardy without calling in to say that she would be late. On March 11, Respondent also failed to attend an appointment that the principal had scheduled for her with the Employee Assistance Program. Respondent told the principal that she would reschedule the appointment, but later failed to appear at this appointment. On September 20, 2002, the district office conducted a CFR. Out of 18 workdays in the new 2002-03 school year, Respondent had already missed four. For the prior school year, Respondent had been absent 47 times and late 11 times. Of the 47 absences, Respondent never called the principal 23 times and never even called the school 11 times. Respondent at first claimed that she had only been absence once that school year, but later admitted to four absences. She then explained that two of the absences were due to a job interview and an accident at the train station. On January 16, 2003, Petitioner advised Respondent that it had suspended her and initiated dismissal proceedings for the reasons set forth above. Petitioner has proved that Respondent is guilty of willful absence from duty without leave by repeated absences without leave and without notification on the day of the absence; willful neglect of duty by repeated absences, repeated failures to advise the school of absences, and repeated failures to provide medical documentation for absences; gross insubordination for the repeated disregard of the principal's order to call in before absences and document absences; and incompetence for the failure to perform her job duties adequately.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2003. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Denise Wallace Legal Department The School Board of Miami-Dade County 1452 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carleen Braddy 1884 Northwest 53rd Street Miami, Florida 33142
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 the Respondent should be disciplined as alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, Respondent, Willie Vance, was employed as a lead custodian at Ponce de Leon Middle School in Dade County, Florida. Over the course of several years, starting as early as 1986, Respondent was counseled regarding the personnel rules and employment requirements for continued employment with the School Board. More specifically, Respondent was advised that absenteeism presented a hardship in the workplace and that he would not be permitted to adversely affect the normal operation of the school. In this regard, Respondent was referred to the Petitioner's Employee Assistance Program on at least two occasions. In May 1990, Respondent was cited for excessive absenteeism and reminded of the collective bargaining agreement provisions which outline when absences may be grounds for termination. In the years that followed, Respondent continued to have difficulty complying with the regulations regarding absences. He was cited for failing to adhere to the procedures for reporting absences. As lead custodian Respondent was responsible for opening the school at the beginning of each school day. On several occasions, school staff were left to wait for Respondent to arrive to open the school or turn off security alarm systems. Respondent's attendance problem increased and in 1995 he received verbal and written directives regarding his attendance and work performance. By January 1996, Respondent's conduct had not improved. Instead, his continued failure to abide by the directives regarding attendance and work performance led to an incident wherein Respondent used profane and vulgar language and threatened a member of the school staff with bodily harm. These acts occurred in the presence of students and staff members. On February 9, 1996, Respondent was directed to refrain from threatening and/or verbally abusing other staff members. More important, Respondent was advised that continued behavior would result in further disciplinary action. On February 29, 1996, Respondent was absent from work, failed to timely alert school staff that he would not be at work, and, as a result, the school did not open on time. On March 18, 1996, Respondent was absent from work without prior authorization and did not report his absence to school administrators. On March 19, 1996, Respondent failed to sign out on the payroll sheet as all employees had been directed. On March 20, 1996, Respondent failed to report to work without prior authorization from the school principal. On March 26, 1996, Respondent was issued a written warning that his continued failure to perform his assigned duties and repeated indifference to the directives regarding attendance would result in further disciplinary measures. On April 2, 1996, Respondent was advised that continued failure to follow directives would be considered insubordination. On April 11, 1996, Respondent failed to report for work, failed to give notice of his absence, and failed to open the school timely. Since no one knew Respondent would be absent, no administrator could cover for Respondent. As a result, on this date the school mail was not delivered (including employees' paychecks). On April 24, 1996, Respondent was notified that if his performance did not improve by the end of the 1995-96 school year, that a recommendation for disciplinary action would be made to the School Board by the principal. In May 1996, the principal was notified that Respondent had failed to follow through with the Employee Assistance Program's recommendations. Subsequently, Respondent's conduct deteriorated. On May 31, 1996, he made a threat to another staff member; on June 4, 1996, he had a verbal altercation with another custodian; on June 7, 1996, he was absent without prior approval; on July 9, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 17, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 22, 1996, he was absent from work without prior authorization; and on July 23, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time. On July 24, 1996, Respondent was issued a written warning again advising him that his continued failure to comply with procedures could not be tolerated. He was advised that his performance was unacceptable, that it was having a detrimental effect on his co-workers, and that continued failure would be considered neglect of duty and gross insubordination. On September 11, 1996, in the presence of students, Respondent was verbally abusive and threatening to an assistant principal. On September 25, 1996, Respondent had another altercation with a co-worker. Respondent threatened the employee by holding a gasoline container and suggesting he would pour gasoline over the worker and light a match. Despite additional warnings and conferences with Respondent, Respondent failed to abide by the directives from school administrators. The directives were reasonable in nature and related to the offensive and inappropriate behavior exhibited by Respondent. Nevertheless, Respondent did not improve. From October 1996 through January 6, 1997, Respondent continued to exhibit an indifference to the directives from school personnel. He continued to fail to report to work and, on January 6, 1997, did not report his absence. On February 5, 1997, the School Board took action to suspend Respondent from his employment with the school district and to initiate dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a Final Order sustaining the suspension without pay previously entered, and dismissing Respondent from his employment with the School Board. DONE AND ENTERED this 31st day of March, 1998, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1998. COPIES FURNISHED: Dr. Roger C. Cuevas Superintendent Dade County Public Schools 1450 Northeast Second Avenue Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Luis M. Garcia, Esquire School Board of Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Willie Vance, pro se 3682 Grand Avenue, No. 3 Miami, Florida 33133
The Issue The issues in this case are whether just cause exists to discipline Respondent based on allegations that he used inappropriate language when talking to students, in violation of the Principles of Professional Conduct, and, if so, what discipline should be imposed.
Findings Of Fact Woodard has worked in the Duval County public school system since 2002. There was no evidence presented of any prior incidents of inappropriate behavior, or of discipline being imposed upon Woodard by the School Board. During the 2014-2015 school year, Woodard was employed by Petitioner as an In-School Suspension (“ISSP”) teacher at Northwestern. The ISSP teacher is an instructional and leadership position, and the ISSP teacher is supposed to set an example for students and help them modify their behavior. The ISSP class was created to allow students who engage in disciplinary misconduct to remain in school rather than being removed from the classroom environment. The referral of students to ISSP can come from administrators, teachers, or any other employee who observes student misconduct. Although Woodard taught the ISSP class, he did not discipline students or assign them to ISSP, and he did not give students grades. During the 2014-2015 school year at Northwestern, Woodard was assigned to the gym in the mornings, where sixth- graders were directed to go after eating breakfast in the cafeteria, to wait for their teachers to pick them up and take them to class. On January 23, 2014, the Duval County School District’s (“District”) Office of Professional Standards opened an investigation of allegations that Woodard used inappropriate communications with and/or in the presence of students. The investigation, which was conducted by Investigator Reginald Johnson in the District’s Office of Professional Standards, sustained the allegations. On September 29, 2015, Woodard received a Step III Progressive Discipline – Reprimand and Suspension Without Pay (Revised 9/29/15) for conduct the District alleged violated the Florida Code of Ethics, rules 6A-10.080(2) and 6A-10.080(3) and the Principles of Professional Conduct, rule 6A-10.081(3)(a). The Step III Progressive Discipline alleged that Woodard used the term D.A.N. or DAN when talking to or referring to students at Northwestern, which the District alleged was an acronym for “dumb ass niggers.” In his defense, Woodard testified that in mentoring students, he shared stories from his childhood and his own life in order to be more relatable to students. According to Woodard, he used the story of his childhood friend Dan to impress upon students that it is not where you start, it is where you end up. Woodard’s friend Dan used to skip school, get to school late, fight, and disrespect authority, and Woodard urged his students not to be a Dan. As discussed below, Woodard’s testimony in this regard is not credible. Student D.M. testified that Woodard called students D.A.N.s in the gym and in ISSP class when the students were either acting up or in trouble. D.M. also testified Woodard wrote the word D.A.N. on the board in ISSP class with periods in the word, and the word stayed on the board in ISSP class. D.M. never heard Woodard tell a story about a friend named Dan. Student H.N.J. was in ISSP class with about seven other students when Woodard told them that D.A.N. meant “dumb ass niggers.” H.N.J. said Woodard called students D.A.N.s when they were acting up and disrespectful, and that Woodard gave two meanings of the word D.A.N.-–“dumb and nobody” and “dumb ass niggers.” H.N.J. does not remember Woodard relating a story about a friend named Dan. Woodard’s use of the word D.A.N. toward students made H.N.J. feel put down and “sad and mad at the same time,” and the fact that Woodard was a teacher made this worse. Student B.S. stated Woodard yelled at students and called them D.A.N.s in the gym whenever they were talking loud or would not listen. B.S. does not recall Woodard telling a story about a friend named Dan. B.S. learned that D.A.N. means “dumb ass niggers” from A.W., another student. Woodard’s reference to students as D.A.N.s made B.S. feel “sorry and mad,” and she began crying on the witness stand. Student K.H. testified that Woodard called her a D.A.N. when she stepped out of line in the gym and that he called other students D.A.N.s when they were misbehaving, fighting, or being loud. K.H.’s friend told her that D.A.N. means “dumb ass nigger.” K.H. never heard Woodard tell a story about a friend named Dan. K.H. and her brother, student D.H., complained to their mother about Woodard calling students D.A.N.s. The mother of K.H. and D.H. contacted Northwestern and later the media after the school did not do anything about the complaint. Woodard’s use of the term D.A.N. made K.H. “feel disrespected and low life because it’s not supposed to be used towards children” and because Woodard is a teacher and the same race as K.H. During the 2014-2015 school year, student D.H., was in the seventh grade at Northwestern. D.H. heard his friends in math class calling each other D.A.N.s. So he asked one of his friends what D.A.N. meant. D.H.’s friend (a student named “J”) told D.H. that D.A.N. meant “dumb ass niggers” and that Woodard called kids that word. D.H. was bothered that someone of his own race was calling him that, and also that it came from a teacher. The students’ descriptions of Woodard’s comments and behavior were fairly consistent. The things they reported hearing and observing were very similar to contemporaneously written statements from them and other students. The alleged remarks were similar in nature to one another but not exactly the same, so the comments did not seem rehearsed or planned. The students were very direct and unwavering when testifying at final hearing. The testimony of H.N.J. was particularly persuasive and clearly established that Woodard intended to use the term D.A.N. as a derogatory epithet: either “dumb and nobody”; or “dumb ass niggers.” Significantly, none of the students who appeared at hearing would have had a motive to testify falsely. As noted, Woodard did not assign grades to any of these students or assign them to ISSP, so none would have had an axe to grind with Woodard. The testimony of the students is credible. Teacher Linda Raggins testified that she heard Woodard tell students in the gym “to not act like Dan.” Toward the end of the school year, Raggins asked Woodard “who is Dan?” Woodard gave Raggins two explanations, the first of which she did not recall. The second explanation Woodard gave Raggins was that “some people use Dan to mean dumb ass niggers, but that’s not how I – that’s not what I’m talking about.” Raggins did not recall Woodard providing any other meaning for the word D.A.N. Raggins is a union representative and first agreed to provide a written statement, but then declined to provide a statement on the advice of counsel. Raggins did not tell Investigator Johnson that Woodard told a story about someone named Dan. Former teacher Jason Ludban heard Woodard use the term D.A.N. a handful of times. Ludban said that Woodard used the term D.A.N. “openly and loudly for all to hear,” which made Ludban believe it was acceptable. Ludban learned from a student that D.A.N. meant “dumb ass niggers.” Ludban never heard Woodard tell a story about a friend named Dan. If Ludban believed that Woodard was using the term D.A.N. to mean “dumb ass niggers,” Ludban would have had a duty to report it. Woodard gave Investigator Johnson the names of three additional student witnesses, whom Johnson interviewed. One of the students confirmed that Woodard wrote the word “D.A.N.” with periods on the board in ISSP class. Two of the students told Johnson that Woodard told them the story of a friend named Dan, but this occurred about two weeks prior to the date Johnson interviewed them, after the allegations were reported in the media and when Woodard was already facing discipline. Despite Woodard’s claim that Dan was a real person, Investigator Johnson does not recall Woodard telling him the last name of Dan or giving him any contact information for “Dan.” Johnson would have interviewed Dan if Woodard had provided that information. Woodard also did not provide Investigator Johnson with the names of any adults at Northwestern to whom Woodard told the Dan story. None of the witnesses Investigator Johnson interviewed--students or adults-- stated that Woodard told them a story about a friend named Dan. It is within management’s discretion to skip a step of progressive discipline if the conduct is severe. Assistant Superintendent Sonita Young recommended Step III discipline against Woodard because he was in a position of authority and his role was to provide support to students in terms of behavior modification, but Woodard used derogatory language that was offensive toward students. In deciding whether discipline is warranted, the District looks at the totality of the circumstances, including the number of times an incident occurred, how many witnesses there were to the incident, the severity of the incident, whether harm occurred to the child’s physical or mental well-being, whether the employee has been previously disciplined for the same conduct, and whether the employee acknowledged his behavior and is willing to modify his behavior. According to Assistant Superintendent Young, the factors supporting the Step III discipline were that Woodard said the derogatory word D.A.N. to multiple students, the students were middle school students, the student population was fragile and of very low socioeconomic status, and the conduct was repeated over a period of time rather than a singular incident. The fact that this language was used by a teacher, a person in a position of authority whom students have the right to feel “safe” around, were additional factors supporting the discipline. Young believes that Woodard’s use of the word D.A.N. toward or around students showed poor judgment and was damaging to them. Respondent called various character and fact witnesses (Jasmine Daniels, Tiffany Thomas, Tabitha Johnson, Pastor Fredrick Newbill, Niger Lambey, Ricky Stanford, and Daniel Drayton) who testified that Woodard told the story of his friend Dan at a church youth group, in his sermons, or that they knew the story from growing up with Woodard. However, none of the witnesses testified that they heard Woodard tell the Dan story to District students or in a District classroom. Pastor Newbill testified that in his community, D.A.N. has been used as a racial epithet for “dumb ass niggers” for at least the last 25 years. Dr. Arvin Johnson, the former principal of Northwestern, received a complaint about Woodard from a parent in May 2015, near the end of the 2014-2015 school year. Dr. Johnson, who is a friend of Woodard, heard Woodard use the term D.A.N. with students once or twice, but he never heard Woodard tell students a story about a friend named Dan. Although Dr. Johnson has known or worked with Woodard for approximately 12 years, the first time Woodard told Dr. Johnson the story of a friend named Dan was in connection with the parent’s complaint against Woodard in May 2015. Although Woodard has been employed with the District since 2002, he admitted that he did not tell the Dan story to students during the first 12 years of his employment. Woodard did not begin telling the Dan story to District students until the 2014-2015 school year. After not speaking to Daniel Drayton for several years, Woodard called Drayton in 2015 to remind him of the Dan story. Woodard stated that if he knew there was a negative interpretation of D.A.N. he would not have used the term, but his explanation to Ms. Raggins shows that he knew that a racially derogatory meaning of the word D.A.N. existed. Woodard claims that the students lied about him using D.A.N. as an acronym for “dumb ass niggers,” but he could not offer an explanation as to why students, whom he claims “loved” him, and were excited to attend his class, would lie about him. The greater weight of the evidence supports the contention that Woodard used the term D.A.N. in the presence of his ISSP students as a derogatory racial epithet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board, rescinding its suspension of the employment of Ernest Woodard and, instead, issuing a written reprimand. DONE AND ENTERED this 30th day of November, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 30th day of November, 2016.
The Issue The issue is whether Petitioner has just cause to place Respondent, a classroom teacher, on administrative leave without pay from November 20, 2013, through the remainder of the 2013- 2014 school year due to Respondent’s excessive absenteeism, as alleged in the December 19, 2013, Statement of Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at PSLHS, a public school in St. Lucie County, Florida. Respondent has been employed by the District for approximately 20 years. Respondent has a professional services contract pursuant to section 1012.33. As a classroom teacher, Respondent is charged with instructing high school students. Regular attendance is considered by Petitioner to be an essential function of the position of classroom teacher. Pursuant to Board Policy 6.549(1)(a), Respondent was entitled to four days of sick leave as of the first day of employment of each school year and thereafter earned one sick day for each month of employment, for a maximum of ten sick days per school year. 2012-2013 School Year During the 2012-2013 fiscal year, Respondent was assigned to teach intensive math classes to students who struggle to pass required state exams required for graduation. Hargadine, in coordination with Petitioner’s Human Resources Department, directed Assistant Principal April Rogers (Rogers) to meet with Respondent on October 2, 2012, to address Respondent’s pattern of absenteeism and the impact it was having on students, and to explore the possibility of accommodations if his frequent absences were caused by a health condition. At least one student asked to be removed from Respondent’s class due to the frequency of Respondent’s absences. As directed, on October 2, 2012, Rogers met with Respondent and discussed Petitioner’s concerns that Respondent’s absences resulted in his students missing math instruction for 39 percent of their scheduled classes. Respondent was notified that he had already exhausted his available sick leave and he had not properly filled out leave requests in a timely manner. During this meeting, Respondent acknowledged that his absences had a negative impact on students. This conference was memorialized in a Summary of Conference dated October 2, 2012, issued to Respondent from Rogers. After the October 2, 2012, meeting, Respondent was also absent on October 16 through 19, 2012. On October 23, 2012, Rogers issued a Letter of Concern to Respondent detailing his continued excessive absenteeism and failure to timely request leave. The letter advised that Respondent’s absenteeism amounted to 17 of 42 instructional days and equated to 40 percent of lost instructional time for Respondent’s students. This letter reiterated that Respondent’s absences directly affect his students’ educational success. In addition to Respondent disrupting the continuity of the classroom by failing to attend work, Respondent also failed to supply adequate lesson plans and/or provide for student instruction while he took unapproved leave. On several occasions, Hargadine or her assistant principal had to create or add to the lesson plans to enable a substitute to teach Respondent’s classes. Respondent’s absenteeism and lack of proper notice of his absences resulted in his students being “taught” by individuals who did not have a college degree in mathematics, or even education, as some of these individuals were substitutes (who only need a high school diploma), para-educators, and even clerical workers. When staff members were required to provide coverage for Respondent’s classes, it negatively impacted both students and co-workers. For example, if a clerical worker or para-educator was called to provide coverage for Respondent’s classes, their own work would have to wait and they would not be able to complete their own specific job duties in order to ensure coverage for Respondent’s students. After receiving the October 23, 2012, Letter of Concern, Respondent was also absent on October 31, November 1, November 2, November 5, and November 6, 2012. As the assistant superintendent for Human Resources, Ranew assists site-based administrators (principals and assistant principals) concerning staff discipline and adherence to policies and procedures. Rogers requested Ranew’s assistance in addressing Respondent’s absenteeism. On November 6, 2012, Ranew issued a letter to Respondent regarding his excessive absenteeism. This letter from Ranew reminded Respondent of the importance of him submitting leave requests because his school would not know of his absence even if he properly requested a substitute teacher using the AESOP (computerized) system. By this letter, Ranew also attempted to initiate the “interactive process” required by the Americans with Disabilities Act (ADA). Although Respondent had not identified himself as a “qualified individual with a disability” within the meaning of the ADA, his excessive absenteeism suggested that he might need an accommodation if his absenteeism was being caused by a medical condition. The November 6 letter stated, “to the extent that your absenteeism is being caused by medical condition, the District may be agreeable to allowing you to take a leave [of absence] to accommodate such a condition, if that would help. In the event you realize that you are unable to regularly be at work due to a medical condition, you should consider promptly requesting an extended leave of absence (e.g., for this semester or the school year), and the District would be willing to consider such a request.” To determine Respondent’s potential eligibility for an accommodation pursuant to the ADA, Ranew specifically requested that Respondent’s doctor provide documentation clarifying: “a) any specific condition/impairment that Respondent has, as well as the cause; b) any restrictions/limitations on Respondent’s work duties as a teacher; c) the expected duration for each limitation or whether it is permanent; d) whether the condition is controllable with the use of medication, and if yes: what is the mitigating effect of this medication; and whether Respondent could fully perform his job duties, with the aid of such medication.” In response to Ranew’s letter, Respondent provided the District with a doctor’s note from Dr. Kenneth Palestrant dated November 7, 2012, stating that the majority of Respondent’s visits to the clinics occur between the months of January through May and September through December (effectively during the calendar school year) and speculated that Respondent “may” be exposed to allergens in the school building or in his classroom. Dr. Palestrant explained that Respondent was being treated with antibiotics and allergy medications and recommended Respondent receive an allergy test from an allergist to identify the specific allergens. Dr. Palestrant found that other than the potential environmental exposure to an allergen, he found “no reason [Respondent] cannot perform his full duties as a school teacher as he has no impairment and the medications he has been given have no mitigating effect upon his performance.” After receiving Dr. Palestrant’s November 7, 2012, note, and after receiving an e-mail from Respondent in which he wondered if something in his classroom might be causing his medical condition, Ranew asked Sanders to inspect Respondent’s classroom. Sanders’ job duties would require him to facilitate any remedial action with regard to Respondent’s classroom, should one be needed. In response to this request, Respondent’s classroom was inspected but nothing of concern was discovered within the room. Nonetheless, the classroom was sanitized using two methods: with an ozone machine to kill bacteria and other germs, including mold, and also with a fogger using disinfectant that kills microorganisms, bacteria, and mold, as a precaution. On November 15, 2012, Respondent sent an e-mail to Ranew, informing her that he was “being evaluated by an Allergist, and will be setting up a colonoscopy per doctor’s orders Tuesday, [November 20, 2012].” On November 15, 2012, Ranew sent an e-mail to Respondent requesting that he provide her with an allergist report when complete. On November 16, 2012, Respondent sent an e-mail to Ranew in which he discussed beginning to take a new allergy medicine, and promised to fax the allergist report to her. Ranew issued a letter to Respondent dated December 21, 2012, advising him that she had yet to receive an allergist report, again requesting such a report or medical clarification. Ranew’s December 21, 2012, letter also reminded Respondent that regular, consistent, punctual attendance, and working a full assigned workday are essential functions of his position as a classroom teacher. Although Respondent did not request leave under the Family and Medical Leave Act (FMLA), when he failed to provide the requested allergist report five weeks after Ranew requested it, and Respondent continued his pattern of excessive absenteeism, the District advised that it intended to designate his absences as FMLA-qualifying. Ranew’s December 21, 2012, letter to Respondent again requested clarification from Respondent’s doctor/allergist, with a focus on “whether there is a modification or adjustment to the work environment that will enable you to perform the essential functions of [your] position (classroom teacher).” Respondent was told, “[i]n the event that you believe that something such as trees, grass, or something else near your current classroom/school may be causing your condition, which has resulted in many absences, the [School] District is willing to consider a request to transfer you to another location.” Notably, Respondent did not provide any information from a health care provider which suggested any work modification would enable him to perform the essential functions of his job, nor did he take advantage of Petitioner’s offer of a transfer to another location. In response, Respondent emailed Ranew on December 29, 2012, advising that his allergy test would be conducted on January 3, 2013, and he would provide the results to her as soon as he received them. Respondent also expressed interest in obtaining information regarding short-term disability leave. On January 8, 2013, Ranew advised Respondent that if he desired to take leave in connection with his private insurance company’s short-term disability policy, she requested that he advise her “as soon as possible as the [School] District may be able to accommodate you with an extended leave.” There is no evidence that Respondent pursued Ranew’s offer for an accommodation in connection with short-term disability. By letter dated January 8, 2013, Ranew advised Respondent that she still had not received a copy of his allergist’s report, and she “had been trying to accommodate [Respondent], but it is difficult to do when the information [the School District] need[s] is still not provided.” Ranew again reminded Respondent that his students needed continuity in the classroom and, if he was unable to provide that, other arrangements would need to be made for the upcoming semester. Respondent provided Ranew with an allergist report dated January 18, 2013. The report explained that Respondent tested positive for multiple allergens, and recommended treatments, including immunotherapy (allergy injections), prescribed medications (nasal sprays), and surgery (balloon sinuplasty). Respondent’s allergist identified Respondent being allergic to 42 antigens, including cats, dogs, various grasses, weeds, trees, dust mites and cockroaches, and mold. Respondent’s allergist recommended Respondent undergo surgery, and Petitioner permitted Respondent to take FMLA leave for such surgery. Respondent was also permitted to intermittently use all remaining FMLA leave available to him, which he exhausted and which expired on March 28, 2013, due to the conclusion of his FMLA designated 12-month period. In addition to utilizing all FMLA leave available, the District also provided an additional 21 days of unpaid leave during the remainder of the 2012-2013 school year to Respondent, which was above and beyond his allotted sick leave, as well as above and beyond the 60 days of FMLA leave to which he was entitled. During the 2012-2013 school year, Respondent was absent 89 out of 191 possible work days, which accounts for an absenteeism rate of 48 percent. During the 2012-2013 school year, Respondent only worked 772.50 hours. Although Petitioner designated additional unpaid days as FMLA, Respondent was not eligible for additional FMLA leave beginning in March 2013 through March 2014 because he had not worked the requisite number of hours in the preceding 12- month period to be eligible for FMLA leave. 2013-2014 School Year On August 9, 2013, prior to the beginning of the 2013- 2014 school year, Ranew sent a letter to Respondent regarding his excessive absenteeism; explaining that his regular attendance was expected during the upcoming 2013-2014 school year; that his students need continuity in the classroom and if he was unable to provide that continuity, that other arrangements needed to be made for the next school year; that he should not expect to be automatically extended any additional unpaid leave during the 2013-2014 school year; and he would only receive the sick leave to which he was already entitled. Ranew advised Respondent that when he returned for work at the beginning of the 2013-2014 school year he would have four days of permitted sick leave advanced to him, and would accrue one additional day at the end of each month from August through February. In this letter, Ranew also told Respondent that it was her understanding that the sinus surgery that he underwent was part of his treatment plan to resolve the sinus and allergy issues which seriously impacted his attendance (during the 2012- 2013 school year) and that his chronic sinusitis was expected to improve post operatively. Respondent did not challenge or correct Ranew’s understanding on these issues and did not indicate that additional absences were anticipated. Ranew had serious concerns about the lack of consistent instruction for Respondent’s students due to Respondent’s absenteeism. Only 11 of Respondent’s 94 students passed the standardized math examination required for graduation in the 2012-2013 school year, which is approximately a 12 percent pass rate. This was significantly lower than the 50 percent pass rate of Respondent’s colleagues who also taught the same type of “struggling” math students. In order to minimize the potential disruption to students caused by excessive absenteeism, Respondent was assigned to teach accounting classes for the new school year which are not courses required for graduation. Respondent was also assigned to a different classroom, in a different building, for the 2013-2014 school year. As of October 3, 2013, Respondent was absent on August 27, 28, 29, 30, and September 5, 9, 20, 23, 25, 26, and October 2, 2013, well in excess of the sick leave that he was permitted to take in accordance with Board policy. By letter dated October 3, 2013, Ms. Ranew wrote to Respondent advising him that his pattern of absenteeism has a direct negative impact on an orderly learning environment and referring to her August 9 correspondence wherein she directed Respondent to advise the District if he needed leave above and beyond the sick days that he was permitted to take. Ranew advised Respondent that he had not provided the requested medical documentation that would support that he had a medical condition necessitating leave from his job, but that the District was continuing its attempt to engage Respondent in an interactive process concerning his medical condition, and again requested documentation from Respondent’s doctor addressing his recent absences and his current condition. In response to Ranew’s October 3, 2013, letter, Respondent submitted a doctor’s note dated October 9, 2013, which advised that Respondent’s condition “can be treated with nasal sprays and intermittent antibiotics” but raised the potential for future treatment to include additional surgical procedure(s). Importantly, the doctor’s note clearly explained that Respondent “can perform as a teacher with [his medical conditions], though he may notice hearing loss changes whenever he has middle ear fluid.” The October 9, 2013, doctor’s note Respondent submitted accounted for four of his absences in August and two of his absences in September, but failed to address the other eight absences which he incurred during September and October 2013. Even after receiving Ms. Ranew’s October 3, 2013, letter, Respondent was absent on October 9, 21, and 22, 2013. As of October 24, 2013, Respondent was absent 14 days out of 46 instructional days for the 2013-2014 school year. Ranew worked with Yost in the decision to recommend to the Board that Respondent be placed on administrative leave without pay. The basis for that recommendation was Respondent’s excessive absenteeism and failure to follow protocol for sick leave. By letter dated October 24, 2013, Yost advised Respondent that she was recommending his placement on a leave of absence specifically because of his continual excessive absenteeism, which had been a constant disruption to the classroom and directly impacted an orderly, continuous learning environment for his students. Yost believed that recommending Respondent be placed on leave without pay was not disciplinary in nature, but rather done to provide him an accommodation to resolve any issues which had caused his excessive absenteeism. On October 24, 2013, Yost placed Respondent on “home assignment” with pay through November 19, 2013, at which time the Board voted to accept Yost’s recommendation to place Respondent on leave without pay for the remainder of the school year. The Charges Against Respondent In its Statement of Charges in Support of the Placement on Administrative Leave Without Pay filed on December 19, 2013, the District advanced four theories for Respondent’s leave without pay: incompetency, gross insubordination, willful neglect of duty, and misconduct in office. “Incompetency” is defined in Florida Administrative Code Rule 6A-5.056(3) as, “the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.” “Gross insubordination” is defined in rule 6A-5.056(4) as “the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties.” See Fla. Admin. Code R. 6A-5.056(2)(c). “Willful neglect of duty” is defined in rule 6A-5.056(5) as the “intentional or reckless failure to carry out required duties.” “Misconduct in Office,” according to rule 6A-5.056(2), is satisfied by a showing of one or more of the following: a violation of the adopted school board rules, a violation of the Code of Ethics of the Education Profession in Florida (as adopted in Florida Administrative Code Rule 6B-1.001), or behavior that disrupts the student’s learning environment. The Board’s Policy 6.301(3)(b) identifies a variety of terminable offenses including: Insubordination * * * (x) Failure to follow a direct order in normal performance of employee’s job * * * Failure to notify supervisor and receive permission for one or more consecutive workdays’ absence Unsatisfactory work performance Excessive absences or tardiness Neglect of duty Unauthorized absences * * * (xix) Violation of any rule, policy, regulation, or established procedure * * * (xxix) Any violation of the Code of Ethics of the Education Profession, the Principles of Professional Conduct for the Education Profession, the Standards of Competent and Professional Performance, or the Code of Ethics for Public Officers and Employees * * * (xxxiv) Failure to correct performance deficiencies The finding that Respondent violated one and/or multiple Board policies relating to his excessive absenteeism necessarily shows that he is guilty of “misconduct in office.” Respondent’s Defenses Reason for Absences Respondent does not dispute his record of absenteeism or the District’s record of communicating its concern regarding his chronic absenteeism and its effect on his students. Rather, Respondent asserts that his absenteeism was related to the environmental conditions at PSLHS. Respondent believes that he suffered from chronic sinus problems, headaches, and repeated scratchy throats due to possible exposure to mold or other allergens at the school which caused many of his absences. According to Respondent, PSLHS suffered storm damage in 2008 that resulted in mold growing around his classroom door. After school authorities were notified by Respondent of the mold issue, the door and mold was removed. Respondent has not worked in that classroom in more than three years. Respondent admitted that some of his absences during the 2012-2013 and 2013-2014 school years were not related to sinus problems. For example, Respondent missed work when he stayed up late with a new puppy. Respondent also missed work to get massage therapy on several occasions. Several of Respondent’s absences were attributed to stomach issues. None of Respondent’s doctors identified any need for Respondent to be extensively absent from work due to any medical condition, other than his recommended sinus surgery which occurred in early 2013 and was covered by FMLA. No evidence was introduced at the hearing that any of Respondent’s doctors actually determined that anything either at PSLHS or within Respondent’s classroom caused Respondent’s excessive absenteeism, or that Respondent could not work at PSLHS due any medical reason. To the contrary, during the 2012-2013 school year, Respondent provided 30 doctor’s notes returning him to work with no restrictions. During the 2013-2014 school year, Respondent provided four doctor’s notes returning him to work with no restrictions. Respondent admitted he was allergic to various grasses and trees common to Florida, and even admitted he was allergic to the grass in his own yard. When Respondent was asked if anything changed in his home environment between the 2011-2012 and 2012- 2013 school years where his absences skyrocketed, he testified that he had just gotten a puppy. During the relevant time period, approximately 70 percent of Respondent’s absences occurred on days when the proceeding day was not a school day, which suggests it was unlikely that Respondent’s absences were due to the environment at his work site. Although Respondent claimed his school environment exacerbated his allergies, his absences at issue are full-day absences where he called in sick for the entire day rather than leaving work during the workday. At no time did Respondent or his healthcare providers suggest that PSLHS or Respondent’s classroom should have air quality testing. Respondent admitted, on the days he was absent, he felt worse when he woke up at home than when he was at work in his classroom and when he was too sick to come to work he would wake up “hacking.” Further, while on administrative leave without pay, Respondent showed up to PSLHS in January 2014 to oversee a wrestling tournament that he previously helped organize. It is illogical that Respondent would voluntarily return to the very place which he now suggests made him so sick that he needed to continuously take days off without available leave or sick time. No credible evidence was presented to suggest that Respondent’s chronic absenteeism was as a result of the District’s failure “to provide a suitable working environment,” as alleged by Respondent.1/ Use of Administrative Leave Rather Than Discipline The Board asserts that Respondent’s chronic pattern of absences during the 2012-2013 school year and the first few months of the 2013-2014 school year resulted in “just cause” for termination. However, in lieu of termination, Ranew proposed, and the Board accepted, her recommendation for administrative leave without pay. Ranew credibly testified that she believed this would give Respondent the opportunity to take care of any problems that were causing his absenteeism and allow him to successfully return to the classroom in the 2014-2015 school year. There is no provision under any statute, rule, or policy specifically providing the Board with the authority to place an employee on administrative leave without pay instead of a suspension without pay or termination.2/ Because of this, Respondent argues that he was deprived of due process by the Board and that the Board’s action constitutes the improper use of an unpromulgated rule. A “rule” is defined in the Administrative Procedure Act (APA) as an: agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of rule. § 120.52(16), Fla. Stat. No evidence was presented regarding any alleged Board “statement of general applicability” regarding the use of administrative leave without pay as a substitute for disciplinary action. Further, it is clear from the record that Respondent received all the process to which he was entitled--notice and an opportunity to be heard prior to the implementation of the leave without pay. Respondent was provided a letter by hand delivery on October 24, 2013, from Yost in which he was advised that he was being placed on temporary duty assignment until the next Board meeting and that she intended to recommend he be placed on administrative leave without pay through the remainder of the school year due to his excessive absenteeism. He was notified that he had exhausted all paid leave yet continued to be absent. It was also noted that Respondent’s physician indicated he could perform as a teacher but may have a hearing loss when middle ear fluid is present. Notably, his physician’s letter accounted for four of his absences in August and two of his absences in September 2013, but did not address the other eight absences which he incurred during September and October 2013. This letter advised Respondent that if he had any information to provide regarding why this action should not be taken, he could do so in a meeting or in writing. Accordingly, Respondent had notice and an opportunity to be heard prior to the implementation of the leave without pay. Additionally, the Statement of Charges issued on December 19, 2013, and the formal administrative hearing before DOAH constituted notice and an evidentiary hearing-–the post adverse employment action due process to which Respondent was entitled. The undersigned has no doubt about the sincerity of the Board’s desire to see Respondent take time to address whatever was resulting in his absences and return to work successfully. However, to call Respondent’s “administrative leave without pay” a non-disciplinary action is an exercise in form over substance. While on leave, Respondent was not receiving his normal wages for teaching. He was not allowed to return to the school to teach for the balance of the school year.3/ Understandably, Respondent does not perceive his leave as beneficent. For all intents and purposes it is, in fact, a “suspension” without pay which, pursuant to the Board’s policies, applicable rules, and statutes, can only be imposed for “just cause.”4/ Determinations of Ultimate Fact The greater weight of the evidence establishes that Respondent engaged in a pattern of excessive and chronic unexcused absenteeism during the 2012-2013 and 2013-2014 school years, despite the District’s repeated reminders regarding the disruption caused by Respondent’s absences and its multiple attempts to accommodate any medical condition that might have been causing the absences.5/ This pattern resulted in a variety of terminable offenses as described in Board Policy 6.301(3)(b). It is determined, as a matter of ultimate fact, that Respondent is guilty of incompetency, as defined by rule 6A- 5.056(3)(a)5. by virtue of his excessive absenteeism--a pattern which was not resolved after FMLA leave, 21 additional days of leave without pay during the 2012-2013 school year, and which continued into the new school year of 2013-2014. It is determined, as a matter of ultimate fact, that Respondent is guilty of gross insubordination by virtue of his failure to perform his required duties, excessive absenteeism despite having no paid leave available, and failing to return to work on a consistent and regular basis after repeated and extensive counseling by the District regarding the consequences of his actions. It is determined, as a matter of ultimate fact, that Respondent engaged in willful neglect of duty by failing to regularly report to work or to properly request time off from work or make arrangements to have lesson plans available for substitute teachers. It is determined, as a matter of ultimate fact, that Respondent engaged in misconduct in office by virtue of his violation of School Board policies and disrupting his students’ learning environment by his chronic absenteeism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, St. Lucie County School Board, enter a final order upholding Respondent’s suspension without pay from November 20, 2013, through the end of the 2013- 2014 school year; denying back pay for the full period of his suspension; and reinstating Respondent’s employment as a teacher at the start of the 2014-2015 school year. DONE AND ENTERED this 12th day of June, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 12th day of June, 2014.
