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.
The Issue The Respondent seeks to cancel and/or rescind the continuing contract of the Petitioner based on the fact that she refused to report to work as requested. The issue to be resolved is whether the Respondent may refuse to grant an instructor who is the holder of a continuing contract a consecutive fifth year of personal leave and secondly whether or not the Respondent may properly dismiss its instructional employee who has requested and has been denied such leave and thereafter refuses to report to work as directed.
Findings Of Fact The testimony of Wilbur S. Franklin, Principal, and Armando Henriquez, Superintendent, District School Board of Monroe County and other documentary evidence reveals that the Petitioner was granted personal leave for four consecutive school years beginning with the 1971-72 school year. The Petitioner also requested personal leave for a fifth year (school year 1975-76) and the principal of the school to which she was last assigned and who was responsible for approving such requests denied it. Messr. Franklin, Principal, testified that his reason for denying the Petitioner a fifth year of personal leave was based on the fact that he needed to make permanent staffing recommendations and the situation in which the Petitioner presented posed a problem in that from year to year he did not know whether or not she would return to school or whether she would again request an additional year of personal leave. He testified that in making his staff recommendations, he sought the best instructors in order to have a sound overall educational program and in order to fulfill that goal, he sought to utilize the services of the most qualified instructors available. The Petitioner testified that during the four years of annual leave which she was granted, she obtained a masters degree in guidance and counseling and that she thought that her training and educational background was more attuned to that type position and that was the position in which she was seeking with the Respondent. She testified that she was certified and was holder of a continuing contract as a classroom teacher and that her employment with the Respondent was in the areas of elementary education, i.e., fourth grade and below. She further testified that she made application for part-time and full- time positions in the areas of guidance and counseling and while vacancies have occurred during those times in which she had an application pending, she was bypassed and she voiced her opinion that based on her education and tenure, she has been discriminated against. In this regard the undersigned asked her to point to specific instances which would substantiate her position and she was unable to do so during the course of the hearing. She testified that vacancies occurred and were filled but she did not know what the educational background of the person(s) who was selected to fill these positions. The Petitioner has been an instructor within the county for more than fifteen years and she, as earlier stated, is the holder of a continuing contract. During March, 1975, she requested by letter a fifth year of annual leave and the Respondent, through its Principal, Messr. Franklin, advised that a fifth year of annual leave would not be granted to her. The Petitioner appealed this denial up to the level of superintendent and he sustained the Principal's recommendation. Messrs. Arthur, Assistant Superintendent Monroe County School District, Armando Henriquez and Wilbur Franklin, Principal, all testified that when the school year 1975-76 began, the Petitioner did not report for duty and has not reported during the current school year. They all testified that while they had no direct conversations with the Petitioner, they have corresponded through written communiques. The Petitioner was given 10 days following the conclusion of the hearing to submit any supporting memoranda which would tend to substantiate her claim that her denial of a position in guidance and counseling was done for ulterior and other unlawful reasons. Respondent's counsel asked the undersigned to take official notice of Section 231.43,44, Florida Statutes, regarding absence without leave and school board rules and regulations 1.4.13 dealing with absence without leave and 1.4.14, personal leave without pay as to the discretion vested in the Respondent with regard to setting school policies. The Petitioner in accordance with her request for ten days leave to file a written statement and/or other documentary evidence supportive of her position, has submitted such and it has been duly considered. Section 231.43, F.S., states, in pertinent part, that the school board shall adopt regulations prescribing conditions under which the instructional staff shall be granted personal leave which when granted shall be approved by the superintendent. In keeping with this dictate, the Respondent promulgated certain guides for the granting of leave (See Board's Exhibit No. 9 received in evidence and made a part hereof). Section 231.44, F.S., dealing with "Absence without leave" states pertinently that any instructor who is willfully absent from duty without leave shall forfeit compensation...and his contract shall be subject to cancellation...(Emphasis added). It is true that the Petitioner has requested positions in areas which she was certified and the evidence indicates that, at least on one occasion, a vacancy existed and was filled by another applicant. However absent any evidence that the successful applicant was selected based on an arbitrary or capricious method or that the Petitioner was not selected due to some discriminatory or other unlawful means, it must be inferred that the Respondent employment selection process was fair. Nor was any evidence submitted which tends to show that the Respondent's attempt to dismiss the Petitioner was initiated for any reason other than the stated reason advanced by Messr. Franklin to the effect that he was desirous of establishing a stable and efficient complement of instructors. It is only logical that an administrator would seek to achieve this. Based on the above and the entire record, it is recommended that the Respondent be permitted to terminate the employment of the Petitioner, Betty Suarez Patterson for failing to report for work and continuing to do so at her assigned position at Truman Elementary School, Key West, Florida. DONE and ORDERED this 28th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1976. COPIES FURNISHED: Hilary U. Alberry, Esquire 310 Fleming Street Post Office Drawer 1430 Key West, Florida 33040 Betty Suarez Patterson 3712 Donald Avenue Key West, Florida 33040
Findings Of Fact Respondent, Otis Ward Carroll held a Florida Teacher's Certificate No. 169701, which was valid from July 1, 1972 until June 30, 1982. As a certificate holder Respondent was disciplined on August 7, 1979, when the State Board of Education entered an Order adopting a set of stipulated Findings of Fact and Conclusions of Law. The Board's Order suspended Mr. Carroll's license to teach for sixty (60) days beginning on June 15, 1979. This discipline resulted from Mr. Carroll's numerous absences from school due to his drinking alcohol. The stipulation recited several arrests and numerous admissions to the Detox (detoxication) Center for disorderly intoxication. These instances occurred between 1976 and 1978. According to the stipulation Mr. Carroll voluntarily entered an alcoholic treatment program on December 4, 1978 for a period of six (6) months. During all times pertinent to the Amended Administrative Complaint Mr. Carroll was employed as a full-time science teacher by the School Board of Duval County at Fletcher Senior High School. On May 18, 1979, the Assistant Superintendent for Personnel of the School Board of Duval County, Florida, sent a letter to Mr. Carroll informing him that he would be employed for the next school year, but he was warned that, Any further indiscretion, however, such as public drunkeness or drinking while on the job will be reported to the Professional Practices Council and could result in a recommendation for your dismissal in accor- dance with the Duval County Teacher Tenure Act. May 1980 Absence During the 1979-80 school year, Mr. Carroll was absent from his teaching duties without prior approval for approximately one week in May, 1980. Before and during his absence Mr. Carroll failed to give notice of his absence as required by school policy. Upon his failure to appear for teaching as scheduled his principal, Dr. Knight, became concerned about his welfare and sent Mr. Daugherty, his administrative assistant, to look for Mr. Carroll. Mr. Carroll could not be found during the school day, but after work Mr. Daugherty, who was going to the grocery store with his wife, saw Mr. Carroll walking down the street. He was "in real bad shape" and was redolent of alcohol. When Mr. Carroll was offered a ride home he declined stating, "No, I want to go to the lounge." Mr. Daugherty then took Mr. Carroll to the Jax Liquor Store Lounge and promptly found a police officer. Mr. Daugherty explained his concern about Mr. Carroll to the officer. The officer picked Mr. Carroll up from the lounge and transported him to the Detox Center. Mr. Daugherty, who is now a school principal in Okeechobee, Florida, would not, if requested, hire Mr. Carroll as a teacher in his school. He believes that due to Mr. Carroll's drinking problem he could not be relied upon to appear as scheduled for teaching his classes. Dr. Knight has the same opinion. April 14, 1981 Arrest During the afternoon of April 14, 1981, a passing motorist notified Officer Russell of the Duval County Sheriff's Department that a man was staggering down the middle of East Point Road in Jacksonville, Florida. The patrolman went to the location described, and observed Mr. Carroll walking down the centerline of the street. Mr. Carroll smelled of alcohol and was unsteady on his feet. Because of his condition he was transported by Officer Russell to the Detox Center where he was later arrested. July 21, 1981 Arrest At approximately 1:15 a.m. on July 21, 1981, Officer Nixon, a patrolman with the Duval County Sheriff's Department, received a complaint from Mr. Carroll's sister that he was creating a disturbance in her home. She reported that Mr. Carroll was drunk and she wanted him to remain in the house because she thought his condition was too dangerous for him to be out in public. Upon his arrival the police officer attempted to talk with Mr. Carroll but he refused to respond at all. He was quite intoxicated and had to be physically assisted out of the house and into the patrol car. Mr. Carroll was charged with disorderly intoxication and taken to the Detox Centers. Spring 1981 Absences According to Fletcher High School policy teachers were required to either give advance notice of their absences or if such notice was not possible to call the school secretary before 7:00 a.m. of the date on which they would be absent. This notice was required because substitute teachers needed to be obtained as rapidly as possible. If a teacher is too late in giving notice of his absence, it is impossible to obtain a substitute. Other teachers are then required to cover for the absent teacher with the consequential disruption of their omen teaching schedules. During the months of February and March, 1981, there were numerous times when Mr. Carroll did not report his absence as required. He either gave no notice or the notice he gave came after 7:00 o'clock. As a result of his unauthorized absences it was discovered that Mr. Carroll left either inadequate lesson plans or no lesson plans at all for the substitutes who appeared to instruct his class. The failure of Mr. Carroll to timely submit his lesson plans substantially interfered with the ability of the substitutes to teach the appropriate subject material. During one of his absences due to drinking student grades for the third nine-week period were due. Mr. Carroll did not leave any grades with the school administration to be given in his absence. Initially, the administration was unable to obtain the grades from Mr. Carroll. When it appeared that no grades would be available, students were told that they would receive an "I" (Incomplete) grade. This possibility caused much confusion and consternation among the students' parents. It resulted in numerous explanations to them by Mr. Carroll's principal. At the very last moment Mr. Carroll's mother delivered his grade book to the school. The "I's" which were previously placed on the students' report cards had to be removed and the correct grades were then posted. Respondent's unauthorized absences were the result of his being an alcoholic. Frequently Mr. Carroll was unable to go to school because he was in the Detox Center. Finally Mr. Carroll was given a leave of absence beginning on April 21, 1981 in order to seek treatment for his problem. Effectiveness Mr. Carroll's effectiveness as a teacher has been seriously reduced by his alcoholism. He cannot be depended upon to appear at the required time for the instruction of his classes. In two instances he appeared at school with the odor of alcohol on his breath. 1/ Knowledge of and rumors about his alcoholism have reduced the respect accorded him by students at Fletcher High School. On March 12, 1981 Mr. Carroll received an official reprimand from his principal, Dr. Jim Ragans. The reprimand noted that Mr. Carroll had been delinquent in giving notice of his absences to the school administration. The reprimand also noted deficiencies in Mr. Carroll's lesson plans and his completion of the student attendance register. He was warned that any reoccurrences of the enumerated delinquencies would result in a recommendation for his dismissal from teaching.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission enter a Final Order revoking the teaching certificate 2/ of Otis Ward Carroll for a period of two years pursuant to Section 231.28, Florida Statutes, and that once the revocation period has expired he be recertified only upon an affirmative demonstration that he is rehabilitated from alcoholism. DONE and RECOMMENDED this 3rd day of September, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1982.
The Issue Whether Petitioner has sufficient just cause to terminate Respondent, Jacqueline Skinner ("Skinner"), for multiple unapproved absences from work.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following Findings of Fact: Parties' Stipulated Facts At all times pertinent, Respondent was employed by Petitioner as a bookkeeper at Central Elementary School. Respondent's supervisor during the 2016-17, 2017-18, and 2018-19 school years was Joseph G. Stanley, principal of Central Elementary School. Respondent's supervisor during the 2019-20 school year was Cynthia Kubit, principal of Central Elementary School. At all times pertinent, Christina Norman was an assistant principal at Central Elementary School. At all times pertinent, Ken Kenworthy was superintendent of Okeechobee County Schools. The annual noninstructional employee evaluations of Respondent from the 2017-18, 2018-19, and 2019-20 school years showed that Respondent needed improvement in attendance. Pet. Ex. 1. Respondent failed to report for work on June 7, 2019, without arranging for leave in advance and without notifying her immediate supervisor. Principal Joseph G. Stanley issued a letter to Respondent dated June 14, 2019, confirming a verbal reprimand; Respondent acknowledged receipt of said letter. Pet. Ex. 2. Respondent failed to report for work on October 29, 2019, without arranging for leave in advance and without notifying her immediate supervisor. Principal Cynthia Kubit issued a letter of reprimand to Respondent dated October 30, 2019; Respondent acknowledged receipt of said letter. Pet. Ex. 3. During February 2020, Respondent continued to have incidents regarding leave and, by letter dated February 20, 2020, Principal Cynthia Kubit recommended disciplinary action against Respondent; Respondent acknowledged receipt of said letter. Pet. Ex. 4. On May 15, 2020, Respondent failed to report to work without arranging for leave in advance and without notifying her immediate supervisor. Principal Cynthia Kubit, in the presence of Assistant Principal Christina Norman, called Respondent several times and issued a memorandum of the telephone conversations. Pet. Ex. 6. Principal Cynthia Kubit issued a letter to Superintendent Ken Kenworthy dated May 18, 2020, recommending that Respondent be terminated; Respondent acknowledged receipt of a copy of said letter. Pet. Ex. 7. By letter dated May 18, 2020, to Respondent, Superintendent Ken Kenworthy informed Respondent that he was recommending to the Board that Respondent's employment be terminated. The letter was hand delivered to Respondent by Assistant Principal Dylan Tedders and Respondent acknowledged receipt of a copy of said letter. Pet. Ex. 8. At all times pertinent, School Board Policy 6.213--Notification of Absence--was in effect. Pet. Ex. 9. At all times pertinent, School Board Policy 6.20--Leave of Absence-- was in full force and effect. Pet. Ex. 10. At all times pertinent, School Board Policy 6.52--Suspension and Dismissal--was in full force and effect. Pet. Ex. 11. At all times pertinent, School Board Policy 6.45--Alcohol and Drug Free Workplace--was in full force and effect. Other Facts Established by the Evidence Skinner was employed pursuant to the Okeechobee County School Board Classified Personnel Contract for the 2019-20 School Year on a continuing basis. Pet. Ex. 18. An employee who has completed the probationary period may be dismissed under the Classified Personnel Contract for just cause. Pet. Ex. 18, p. 15. Pursuant to the Classified Personnel Contract, under Public Employer Rights, "[i]t is the right of the Board to direct its employees, to take disciplinary action for proper cause, and relieve its employees from duty because of lack of work and other legitimate reasons…." Pet. Ex. 18, p. 5. Pursuant to the Classified Personnel Contract, the Board is required to follow progressive discipline, the progression of which is as follows: "documented verbal warning; written reprimand following a meeting; suspension; termination." Pet. Ex. 18, p. 13. It was largely undisputed, as acknowledged in the Joint Pre-hearing Statement-Amended, filed September 1, 2020, that Skinner had attendance problems the past several years of her employment, which escalated in the last year of her employment. According to her supervisor, Kubit, Skinner's attendance problems started immediately when Kubit became principal in July 2019 and continued throughout the last year of Skinner's employment. During her last year of employment, from the time period July 1, 2019, through May 14, 2020, Skinner accumulated numerous absences from work. During her last year of employment, Skinner used more leave than she had allocated. This put her leave bank in the negative. Pet. Ex. 19. This was not the first time Skinner used more leave than she had accrued. Her prior supervisor, Dr. Stanley, testified that Skinner would run out of available sick days and then would have to take unpaid leave. During her last year of employment, Skinner failed to attend work approximately ten days and failed to arrange for advance leave with her supervisor. Pet. Ex. 12. Providing advance notice of an absence could have been accomplished by Skinner by calling, texting, or e-mailing her supervisor any time prior to the start of the work day, even a few minutes before. On some of the days when Skinner failed to attend work, arrange for leave, or notify her supervisor, her supervisor, Kubit, nonetheless tried to assist Skinner by not disciplining her for failure to attend work without notice. For instance, Kubit sometimes allowed Skinner to use vacation days when she ran out of sick days even though employees are normally required to arrange for vacation leave days in advance. Kubit did so because she wanted Skinner to come back and work more regularly. Kubit thought it would help Skinner to do so. According to Kubit, Skinner did not provide legitimate excuses for her unauthorized absences. Instead, she just repeatedly apologized and promised to improve her attendance in the future. Skinner candidly acknowledged during her testimony that she had attendance problems and that she had received multiple disciplinary letters for her problems with attendance. Annual Performance Evaluations As part of her employment, Skinner received annual employee evaluations. Pet. Ex. 1. Her attendance problems over time were documented and verified in her annual employee evaluations. Pet. Ex. 1. More specifically, Skinner's last four annual employee evaluations evaluated her on six main categories of performance, one of which was Attendance. This category evaluated the following performance attribute: "Complies with policies and procedures regarding usage of time and leave; [m]aintains scheduled work and break times; [r]eports absences for emergencies and illnesses, and requests leave, in a timely manner." Pet. Ex. 1, pp. 1-4. In each of her last three annual employee evaluations, Skinner was rated as "Needs Improvement" for Attendance. Pet. Ex. 1, pp. 2-4. On each of the last four annual employee evaluations, Skinner also received written comments from her supervisor about her attendance. These comments were consistent and pointed out that Skinner needed to improve attendance and work to comply with attendance policies. Pet. Ex. 1, pp. 1-4. Each annual performance evaluation was discussed with Skinner and she signed each. Pet. Ex. 1, pp. 1-4. School Board Attendance Policies and Requirements The Board's policies established and outlined general guidelines and expectations for work attendance. Employees were generally expected to attend work as scheduled unless they had arranged for advance leave. See generally, Pet. Ex. 10. Employees who were absent from duty for any reason were required to notify their supervisor as early as possible. Notification of an absence had to be given in advance unless conditions beyond the control of the employee made advance notice impossible. Pet. Ex. 9. The Classified Personnel Contract governing Skinner and other employees similarly provided that employees were required to arrange for advance leave for vacation and to notify their supervisor prior to the start of the work day if they were taking sick leave. Pet. Ex. 18, pp. 33 and 34. The School Bookkeeper Job Description, which applied to Skinner, required her to follow attendance, punctuality, and other qualities of an appropriate work ethic. Pet. Ex. 13, line 11. Skinner's significant and frequent attendance problems caused her to fall short of these policy, contract, and job description requirements. History of Attendance Problems The witnesses confirmed that Skinner violated the attendance policies on a frequent basis for several years. Regrettably, her attendance problems became most acute in her last year. This eventually lead to a recommendation for her termination in her last year of employment. The parties acknowledged in their Joint Pre-hearing Statement- Amended, that Skinner received all required stages of progressive discipline for her attendance problems. This included a verbal warning, a written reprimand, and a suspension, finally resulting in a recommendation by the Superintendent that her employment be terminated. Skinner's supervisors also discussed and counseled her on her attendance problems several times throughout the years, both informally and formally. In the disciplinary letters, Skinner was informed that, in the event of recurrence, she would be subjected to further discipline including a recommendation for termination. Pet. Exs. 2-3. More specifically, in the disciplinary letter from the Superintendent dated March 3, 2020, Skinner was informed that: "It is expected that there be no further occurrence of such behavior. If it continues, your position with the Okeechobee County School Board will be terminated." Pet. Ex. 5, p. 1. In this disciplinary letter, Skinner received numerous attachments including copies of the Board Policy 6.213, entitled "Notification of Absence and the Employee Assistance Plan." Skinner signed and acknowledged receiving the disciplinary letters for her attendance problems, and agreed that they put her on notice that her attendance shortcomings were a problem. Skinner also received negative employee evaluations on her attendance for the past three years, which were discussed and signed by her. Pet. Ex. 1, pp. 2-4. It was clear to the undersigned that Skinner received full, fair, and adequate notice of her attendance problem for several years. Unfortunately, she was unable to correct it after multiple warnings, corrective action, and progressive discipline. Termination Authority Superintendent Ken Kenworthy is responsible for determining and recommending whether an employee should be terminated for violation of Board policies or rules. Pet. Ex. 11. The Superintendent is only entitled to discipline and terminate the employment of an administrative employee on a continuing contract for "just cause." Pet. Ex. 18, p. 15. The Superintendent testified that he takes many factors into consideration when determining whether just cause exists for termination. He looks at the reasonableness of the Board's rules, whether the employee was informed of the rules, and whether the disciplinary action taken is proportionate to the infraction. The undersigned finds that this process is fair, and provides adequate due process to affected employees of the District. The Superintendent ensures that progressive discipline has been followed when taking an action against an employee's employment. See generally, Pet. Ex. 8. In this case, all the stages of progressive discipline from informal conversations and memoranda of conference through the formal disciplinary stages of verbal reprimand, written reprimand, suspension, and recommendation for termination were followed. The Board's rules on employee attendance are reasonable and necessary to ensure the proper functioning and operation of the school district. Several witnesses and the Superintendent testified that proper and regular attendance was a "critical" and "essential function" of an employee's job performance. Skinner's supervisors, Kubit and Dr. Stanley, both testified that notification of absences when an employee cannot attend work is "critical." Several Board witnesses provided testimony showing the hardship that Skinner's absences created for Central Elementary School. For instance, Dr. Stanley expressed his view that it was a hardship for Central Elementary School when Skinner was absent, especially at the last minute, because others had to cover her job. This left the school short staffed in other areas. Likewise, according to Kubit, it was especially difficult when Skinner was absent because other people had to perform her duties, but according to rules and regulations most people were not authorized to handle money. According to Assistant Principal Norman, when Skinner was absent from work, money would have to be kept at the school even though it is supposed to be promptly deposited. This was true because only Skinner could verify the money for a deposit. This violated bookkeeping rules about depositing money, and was unsafe when large sums of money were left undeposited at a school. Skinner was advised on numerous occasions and by different people that her repeated and unauthorized absences without notification were creating difficulty for the functioning of Central Elementary School. Not only did Skinner leave the school short staffed, but she had a tendency to do so when her presence was most needed. The witnesses concurred that Skinner's repeated absences tended to follow a pattern. For example, if Central Elementary School was at a busy time of year or an event occurred that required additional bookkeeping, like a fundraising event, Skinner often would not come to work and did not arrange for leave or call in. This left the school in a difficult predicament. Aside from her leaving the school short staffed, Skinner's work absences also had a negative effect on her job performance. Several Board witnesses testified, for example, that Skinner's work performance started to decline. This was caused by Skinner's work getting backed up and not completed on time because of her absences. This became particularly evident after her suspension when other employees came in to review her unfinished work and sort out the bookkeeping at Central Elementary School. During this review, several problems were noticed. Skinner acknowledged knowing that her problem with unauthorized absences was having a negative effect on Central Elementary School. During the hearing, Skinner admitted that her struggle with alcohol misuse caused or contributed to her attendance problems. According to her supervisor, Dr. Stanley, Skinner never provided alcoholism as an excuse for her absences. Instead, Skinner would make the excuse that she slept in or just did not get up to come to work. According to her supervisor, Kubit, Skinner did not offer or mention problems with alcohol as an excuse for her unauthorized absences. Instead, she regularly apologized and promised to improve her attendance in the future. Not only did Skinner not reveal to her supervisors that alcoholism was a reason for her absence problem, Skinner never sought assistance or accommodation for her struggle with alcohol prior to the Superintendent's recommendation for termination. The Board provides employees struggling with medical or other problems assistance through its Employee Assistance Program. It also provides leave for medical problems though the Family Medical Leave Act ("FMLA"). Pet. Ex. 18, p. 32. Skinner was provided a copy of the Employee Assistance Plan when she was suspended for three days in March 2020, prior to the Superintendent's recommendation for termination of her employment two months later. Pet. Ex. 5, p. 2. However, despite her awareness of the assistance offered in March 2020, Skinner never used the Employee Assistance Plan or FMLA leave to try and save her job or correct her underlying problem prior to being terminated. While the evidence revealed that an employee suffering from an alcohol problem had an opportunity to seek treatment while still employed, this treatment was permitted when their employment was active and in good stead--not after the employee was suspended and dismissal of employment was in progress. Further, Skinner testified that she had been an alcoholic her "whole life" and it had progressively gotten worse in the last four years. Regrettably, there was no medical documentation or other evidence provided in advance for the Board to verify her problem with alcohol. But, at the end of the day, and to be clear, this was Skinner's illness and it was her responsibility to seek help and take advantage of programs the Board offered.2 2 The undersigned reasonably infers from the evidence and record that Skinner knew or should have known about the Employee Assistance Plan many months, if not years, before her termination. Sadly, however, she did not take advantage of the program. Turning directly to the matter at hand, the allegations of the Superintendent's termination letter were limited to her attendance problems. While problems with alcohol may have existed or accounted for her absences, the crux of this case concerns Skinner's attendance problem. Other violations or performance deficiencies related to Skinner's problems with alcohol or related performance issues were not alleged as a basis to terminate her. Those related problems provide some background and context to the attendance issue at hand, but they are not being considered by the undersigned as directly affecting the outcome of this case. Added to that, despite later discovering Skinner's problems with alcohol and how this affected her attendance, the Superintendent did not amend his recommendation for termination of employment to include abuse of alcohol or other related work performance issues. Superintendent Kenworthy felt that Skinner's chronic and disruptive workplace absences alone merited termination of employment. In his view, no other violations needed to be cited since Skinner was not meeting his attendance expectations. Based on the greater weight of the evidence, the undersigned finds that the Board had sufficient just cause to terminate Skinner for repeated and chronic attendance problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Okeechobee County School Board enter a Final Order terminating Jacqueline Skinner's employment. DONE AND ENTERED this 22nd day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 22nd day of October, 2020. COPIES FURNISHED: Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Thomas L. Johnson, Esquire Law Office of Thomas Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed) Thomas W. Conely, Esquire Conely & Conely, P.A. Post Office Box 1367 Okeechobee, Florida 34973 (eServed) Molly Lauren Shaddock, Esquire Sniffen and Spellman 605 North Olive Avenue, 2nd Floor West Palm Beach, Florida 33401 (eServed) Ken Kenworthy, Superintendent Okeechobee School Board 700 Southwest 2nd Avenue Okeechobee, Florida 34974 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue for determination in this case is whether Respondent should be terminated from, or otherwise disciplined, in regard to his employment with the Sarasota County School Board.
Findings Of Fact Petitioner, the SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA (SCHOOL BOARD), is a political subdivision of the State of Florida, and is the agency vested with the authority to operate, maintain, and control the public schools and school personnel in and for Sarasota County, Florida. Respondent, ANTHONY HARTLOVE, at all times material hereto, was employed by the SCHOOL BOARD as a custodian in the Facility Services Department. Respondent was first employed by the SCHOOL BOARD in this capacity in the late 1980's. Respondent is a member of the Sarasota Classified/Teacher Association which has entered into a collective bargaining agreement with the SCHOOL BOARD. As a SCHOOL BOARD employee, Respondent received a specified number of days for sick leave each year which under SCHOOL BOARD policy Respondent was entitled to use for personal or family illness. In Respondent's employment circumstances, he received one sick leave day per month. During the course of his employment with the SCHOOL BOARD, Respondent continually exhausted his accrued sick leave benefits. The parties have stipulated that Respondent was notified on numerous occasions, both verbally and in writing, of the SCHOOL BOARD's policy requiring an employee who has been absent to submit documentation from a physician excusing the absence if the employee had no sick leave remaining. The parties have further stipulated that Respondent submitted falsified physician's notes to his supervisors in an attempt to excuse several absences he took in excess of his earned leave time. Respondent's history of repeated absenteeism culminated on June 23, 1992, with a recommendation from Michael Will, Director of Facilities Services, to Robert Meyer, Assistant Supervisor, that Respondent's employment with the SCHOOL BOARD be terminated. This recommendation was based upon Respondent's disregard for SCHOOL BOARD policies, and noted that "Mr. Hartlove has been in an unauthorized leave status on numerous occasions and has not provided any justifiable reason for his absence." Prior to this recommendation, Respondent had on one occasion been given a five-day suspension in 1989 for reasons unrelated to absenteeism, and not the subject of these proceedings. On July 6, 1992, the Superintendent of Schools recommended to the SCHOOL BOARD that Respondent's employment be terminated. After discussions with Respondent and his wife's physician, the Superintendent withdrew the recommendation for Respondent's termination of employment, and on September 1, 1992, Respondent was given a written record of counseling and notified that he would be subject to disciplinary action if he failed to follow SCHOOL BOARD policy regarding sick leave. Despite the written notification of September 1, 1992, Respondent failed to adhere to SCHOOL BOARD sick leave policy during the next several years. Respondent received written counseling reports regarding sick leave policy on July 20, 1993, July 11, 1994, November 21, 1996, February 10, 1997, and February 27, 1997. In addition to the written counseling reports, on September 29, 1993, Respondent received a written confirmation of an oral reprimand for abuse of school equipment, failure to be in proper attire on duty, and lack of punctuality. On January 26, 1994, Respondent again received a written confirmation of oral reprimand for deficiencies in job performance due to excessive absenteeism. Respondent received another written reprimand on August 9, 1995, for failure to provide written documentation for absenteeism in a timely fashion. In May of 1996, Michael Will learned that Respondent had falsified several medical excuses as indicated above. Respondent acknowledged the submission of false medical excuses to his supervisors. By letter dated June 12, 1996, the Superintendent recommended to the SCHOOL BOARD that Respondent's employment be terminated. Thereafter, the Sarasota Classified/Teachers Association filed a grievance regarding Respondent's recommended termination of employment. The SCHOOL BOARD then withheld action in the recommendation pending completion of the grievance procedures. After the conclusion of the grievance procedures, the Superintendent again recommended to the SCHOOL BOARD the termination of Respondent's employment by letter dated January 27, 1997. While this recommendation was pending, Respondent continued to miss work without documentation, and another recommendation for termination was issued by the Superintendent on March 24, 1997. Respondent was terminated from employment with the SCHOOL BOARD on April 15, 1997. Respondent's history of absenteeism is primarily due to the chronic illness of his wife who suffers from the deleterious effects of lupus, a chronic and debilitating disease. In addition to suffering from lupus, Respondent's wife also suffers from clinical depression and has on at least two past occasions required extended hospitalization for treatment of mental distress. Respondent and his wife have two small children. When Respondent's wife is ill, he is responsible for their care, although he has assistance from family and friends. His wife's illnesses and the costs of child care have placed substantial financial hardship on the Respondent's family. In addition to his wife's health problems, Respondent also suffers from chronic bronchitis and ulcers and has been absent from work due to his own health problems. There is no indication that Respondent has missed work for reasons other than his or his wife's health problems. Respondent generally performs his duties as a custodial employee with SCHOOL BOARD in a competent manner; however, Respondent's repeated absenteeism taxes the personnel resources of the Facilities Services Department. Subsequent to the termination of his employment, Respondent and his wife have made specific arrangements for her care and the care of their children when Mrs. Hartlove is ill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA enter a final order suspending Respondent, ANTHONY HARTLOVE, from employment for a period not in excess of six months commencing on April 15, 1997. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. COPIES FURNISHED: Arthur S. Hardy, Esquire Matthews, Hutton and Eastmoore 1777 Main Street, 5th Floor Post Office Box 49377 Sarasota, Florida 34230 Charles L. Scalise, Esquire Law Offices of W. Russell Synder, P.A. 355 West Venice Avenue Venice, Florida 34285 Dr. Thomas H. Gaul Sarasota County Public School 1960 Landings Boulevard Sarasota, Florida 34231
The Issue The issue for determination is whether excessive absences constitute just cause to terminate Respondent's employment.
Findings Of Fact Petitioner employed Respondent at Skyline Elementary School in Lee County, Florida, from August 25, 1997, until May 22, 2006, when Petitioner suspended Respondent without pay and benefits. Respondent was a member of the food service defined in Subsection 1012.40(1)(a), Florida Statutes (2005), as an educational support employee. Petitioner proposes to terminate Respondent from her employment due to excessive absences during the 2004-2005 and 2005-2006 school years. Petitioner alleges that the absences affected Respondent's ability to carry out the essential functions of her position and that Respondent received two reprimands for excessive absences prior to the proposed termination. The term "excessive absence" is defined in Section 9.015 of the collective bargaining agreement (CBA) between Petitioner and the Support Personnel Association of Lee County1 to mean: three consecutive days of absence without medical verification in a case where abuse is suspected and/or three (3) unauthorized absences in a twelve (12) month period and/or a continued pattern of absence that affects an employee's ability to carry out the essential functions of his/her position. Art. 9, § 9.015, Petitioner's Exhibit 11 (P-11). Many of the material facts are undisputed. Respondent was absent for 47 days during the 2004-2005 school year and 35 days during the 2005-2006 school year. Petitioner does not suspect abuse in connection with any of the absences within the meaning of Article 9, Section 9.015.a. of the CBA. All of the absences were caused by medical conditions identified in the record as diverticulitis and gout. Respondent did not have three consecutive days of absence without medical verification. Whenever requested, Respondent consistently provided a doctor's note for her absence from work. The admitted absences that exceeded Respondent's accrued leave were unauthorized within the meaning of Article 9, Section 9.016. The relevant portion of the CBA defines the term "unauthorized absence" as: Failure of an employee to give notice of absence may be regarded as an unauthorized absence. . . . Absence in excess of accrued sick and personnel leave, when such absence is not specifically authorized in advance. . . . Art. 9, § 9.016, P-11. None of the absences were unauthorized within the meaning of Article 9, Section 9.016a. Respondent consistently provided notice of absence to her employer, frequently before her work shift began at 7:00 a.m., much to the displeasure of her supervisor. Respondent was absent for 28 days in excess of her leave during the 2005-2006 school year. The 28 absences were not authorized in advance, were unauthorized absences within the meaning of Article 9, Sections 9.015b. and 9.016b., and the excessive absences constitute grounds for "appropriate discipline" authorized in Article 9, Sections 9.011 and 9.014. Respondent disputes that any of her absences affected her ability to carry out the essential functions of her position within the meaning of Article 9, Section 9.015c. Respondent also disputes allegations that her absences during the 2004-2005 school year can be considered in this proceeding, that she has any prior discipline, and that termination is "appropriate discipline" within the meaning of Article 9, Sections 9.011 and 9.014. A preponderance of evidence does not support a finding that the 47 absences during the 2004-2005 school year are grounds for termination or that they affected Respondent's ability to carry out the essential functions of her job during that school year. During the 2004-2005 school year, Respondent's school principal recommended on March 24, 2005, that Respondent be rehired for the 2005-2006 school year. The principal signed Respondent's 2004-2005 Performance Assessment scoring Respondent at an "effective level" of performance in all 16 areas targeted for assessment. The Performance Assessment rated Respondent as "punctual in attendance" and "exhibits dependability." The area on the Performance Assessment reflecting "Attendance" and "Total hours absent" is blank. Petitioner employed Respondent for the 2005-2006 school year without conditions and without probation. A preponderance of evidence does not support a finding that the 28 unauthorized absences during the 2005-2006 school year affected Respondent's ability to carry out the essential functions of her position. The principal views Respondent's absences as a "health issue, it was not a work issue." He describes Respondent as a "good worker." The testimony of Petitioner's two witnesses that was intended to provide hearsay testimony of Respondent's peers at work was neither credible nor persuasive. A preponderance of evidence does not support a finding that two prior actions intended by Petitioner to be letters of reprimand evidence prior disciplinary action. Petitioner issued each purported letter of reprimand during the 2005-2006 school year,2 but neither letter included a notice of rights that provided Respondent with a clear point of entry into the administrative process. Article 7, Section 7.09 of the CBA defines the term "discipline" to include a reprimand and provides in relevant part: Employees subject to disciplinary action as specified in Articles 7.091-7.093 shall be entitled to appeal through the grievance process as set forth in Article 5 of the collective bargaining agreement. Article 5 of the CBA describes an extensive grievance process that may culminate in arbitration.3 However, arbitration is not the exclusive procedure of review for proposed discipline. None of the grievance procedures may be construed to deny rights otherwise guaranteed by law.4 Petitioner utilizes the administrative process available at DOAH in connection with challenges to proposed discipline. Neither of the alleged prior reprimands complied with material procedural protections in the CBA. Contrary to Article 7, Section 7.09, Petitioner's Department of Personnel Services never conducted an informal pre-determination conference to review the allegations against Respondent and to afford Respondent an opportunity to respond. Petitioner did not provide Respondent with two days' advance notice to have a representative accompany her to a pre-determination conference where she would have been permitted to present relevant information. The director of personnel did not make a recommendation of disciplinary action to the superintendent. Respondent was sick and not at work on February 21, 2006, and Petitioner never delivered the letter to Respondent. Respondent's supervisor submitted the matter to the executive director of human resources initiating the process for this proposed termination of employment. However, Respondent never had an opportunity to grieve the second "Letter of Reprimand," and Petitioner submits the second "Letter of Reprimand" as evidence of prior discipline that supports the proposed termination of employment. The CBA does not prescribe termination of employment as required discipline for unauthorized absences. The "appropriate discipline" in this proceeding is properly determined by reference to the severity of Respondent's misconduct and any aggravating or mitigating circumstances. Evidence of aggravating circumstances is limited to the excessive frequency of absences. The purported prior "Letters of Reprimand" were issued without a clear point of entry, in violation of relevant procedural protections in the CBA, and the trier of fact does not consider the purported letters of reprimand for the purpose of determining the appropriate discipline. Several mitigating factors are relevant to a determination of "appropriate discipline." Petitioner employed Respondent for nine years. Respondent has been a good worker during that time. The unauthorized absences are attributable to medical conditions rather than misconduct. Respondent has been successfully treated for her medical condition, her present health is good, and there is no evidence that the unauthorized absences will persist after her current suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order suspending Respondent's employment from May 22, 2006, through the date of this Recommended Order. DONE AND ENTERED this 6th day of November, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th of November, 2006.
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 16, 2000, and, if so, the discipline that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. Mr. Navarro began working for the School Board as a custodian in July 1996. He was assigned full-time to the custodial staff at C.O. Taylor/Kirklane Elementary School ("Taylor/Kirklane Elementary") during the 1998-1999 and 1999- 2000 school years. The terms of Mr. Navarro's employment are governed by the provisions of the Agreement between The School District of Palm Beach County, Florida, and National Conference of Firemen & Oilers, Local 1227, July 1, 1999 - June 30, 2002 ("Union Contract"). On January 22, 1999, Mr. Navarro suffered an injury to his back while he was lifting several tables to put them on the stage in the school cafeteria; the tables slipped, and Mr. Navarro fell. Mr. Navarro experienced a sharp pain in his back that almost kept him from walking, but he finished his shift that night, which was a Friday night.2 Because of the pain in his back, Mr. Navarro could not get out of bed on Saturday or Sunday, and, on Monday, he went to see his personal doctor, J.J. Bogani, M.D. Dr. Bogani examined Mr. Navarro and prescribed pain medication. Dr. Bogani advised Mr. Navarro to file a workers' compensation claim with the School Board, which he did. As a result of his workers' compensation claim, Mr. Navarro was referred to a Dr. Goldberg, who examined and treated him on February 1, 1999. At the times material to this proceeding, Dr. Goldberg was one of the physicians who acted as a primary physician, or "gatekeeper," for employees of the School Board who were injured on the job and whose care was covered by workers' compensation insurance. Dr. Goldberg diagnosed Mr. Navarro's injury as lumbar strain. Mr. Navarro saw Dr. Goldberg again on February 3, 1999, and Dr. Goldberg prescribed a back belt for Mr. Navarro. On Mr. Navarro's third visit on February 8, 1999, Dr. Goldberg found that Mr. Navarro had reached maximum medical improvement with respect to the lumbar strain and that the lumbar strain had been resolved. Dr. Goldberg released Mr. Navarro to full-duty work, with an impairment rating of zero percent. Dr. Goldberg examined Mr. Navarro again on March 2, 1999, and Dr. Goldberg reaffirmed his diagnosis of lumbar strain, prescribed physical therapy for Mr. Navarro three times per week for two weeks and returned Mr. Navarro to full-duty work as of March 3, 1999. Dr. Goldberg did not examine Mr. Navarro subsequent to March 2, 1999. In early April 1999, Miguel Mendez, an attorney specializing in workers' compensation, contacted the company that administers the School Board's workers' compensation program on Mr. Navarro's behalf and requested that Mr. Navarro be evaluated by an orthopedist, Dr. Merrill Reuter. The administrator responded in a letter dated April 7, 1999, that Dr. Goldberg declined to recommend an orthopedic evaluation. Mr. Mendez was advised that Mr. Navarro could request a new gatekeeper physician, and a list of approved gatekeeper physicians was included with the letter. Mr. Navarro did not select a new gatekeeper physician until June 2000, even though he continued to have severe back pain. Dr. Bogani, Mr. Navarro's personal physician, treated him for his back problems from March 1999 until June 2000. Agartha Gragg was appointed principal at Taylor/Kirklane Elementary in July 1999, and she was apparently suspicious of Mr. Navarro's work attendance from the beginning of her tenure.3 One of the first changes she made as principal was moving the custodians' sign-in/sign-out log to her office so she could keep track of the comings and goings of the custodial staff. The School Board's personnel records show that Mr. Navarro was absent on annual leave, sick leave, sick leave charged to annual leave, or sick leave charged to "without pay,"4 on January 5 through 14, 18 through 21, and 27 and 28, 2000.5 On January 27, 2000, Dr. Bogani wrote a note on a page of his prescription pad certifying that Mr. Navarro was not able to return to work until January 31, 2000, and that Mr. Navarro needed to be restricted for two weeks, with no heavy lifting or bending. The School Board's records reflect that Mr. Navarro was absent on leave "without pay," sick leave charged to annual leave, or sick leave charged to "without pay" on February 4, 7, through 18, and 21, 2000. Dr. Bogani gave Mr. Navarro a certification dated February 7, 2000, indicating that he could return to work on February 8, 2000. In February 2000, Ms. Gragg received several complaints about Mr. Navarro's job performance from members of the teaching staff. The complaints involved Mr. Navarro's failure to keep his assigned areas clean, especially his failure to keep the floors clean. At the time, Mr. Navarro was working in the area that included the kindergarten classrooms, and one kindergarten teacher wrote Ms. Gragg a note praising the substitute custodian and advising Ms. Gragg that her area was much cleaner when Mr. Navarro was absent. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, or sick leave charged to "without pay" on March 6, 7, and 13 through 17, 2000, except for one hour on March 13, 2000. Dr. Bogani gave Mr. Navarro a certification dated March 7, 2000, indicating that he could return to work on March 8, 2000. On March 13, 2000, Dr. Bogani gave Mr. Navarro a certification stating that Mr. Navarro would not be able to work during the week of March 13, 2000 and that he would be unable to lift more than 15 pounds on his return to work. In a letter dated March 7, 2000, Ms. Gragg directed Mr. Navarro to attend a meeting with her on March 13, 2000, to discuss his excessive absences and his unsatisfactory job performance. Ms. Gragg advised Mr. Navarro in the letter that he could bring a representative with him and that the meeting could result in disciplinary action. A note at the bottom of the letter states that Ms. Gragg's secretary, Rosa McIntyre, read the letter to Mr. Navarro in Spanish. Mr. Navarro attended the meeting with Lourdes Martinez, a paralegal employed in Mr. Mendez's office, as his representative; the other attendees were Ms. Gragg and Ms. McIntyre. The meeting was summarized in a letter to Mr. Navarro dated March 13, 2000, entitled "Verbal Reprimand With a Written Notation," in which Ms. Gragg noted that Mr. Navarro explained that both his absences and his poor job performance were due to medical reasons. The letter reflects that, at the meeting, Ms. Gragg directed Mr. Navarro to provide medical certification from his doctor for any future absences; directed Mr. Navarro to review cleaning procedures with the Interim Head Custodian at Taylor/Kirklane Elementary; recommended that Mr. Navarro contact Ernie Camerino's6 office to discuss leave options for which he might be eligible; recommended that Mr. Navarro contact the School Board's Employee Benefits and Risk Management office to discuss medical disability options that might be available to him; advised Mr. Navarro that his job performance would be reviewed on April 18, 2000; and, finally, advised Mr. Navarro that, if he failed to follow the directives and recommendations set forth in the letter, he would be subject to further discipline, including termination of his employment. The March 13, 2000, letter was prepared in both an English and a Spanish version and was sent to Mr. Navarro by certified mail. Ms. Gragg also noted in the March 13, 2000, reprimand letter that she might change the area Mr. Navarro was assigned to clean. Ms. Gragg did change Mr. Navarro's assignment, but, according to Mr. Navarro, the change was for the worse because he was required to carry a vacuum cleaner on his back and to vacuum carpeted floors, both of which put a lot of strain on his back. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, and sick leave charged to "without pay" on April 5 through 7 and 28, 2000, and for four hours on April 27. On May 1, 2000, Dr. Bogani certified that Mr. Navarro was under his care from April 28 through May 2, 2000, and noted that his office should be called if there were any questions. On April 17, 2000, Ms. Gragg received a complaint from a member of the teaching staff that Mr. Navarro had not vacuumed the carpet in her classroom the previous week. A copy of the complaint was provided to Mr. Navarro, and he went to Ms. Gragg's office on April 17, 2000, to discuss the complaint. In a letter dated April 17, 2000, Ms. Gragg requested that Mr. Navarro meet with her to discuss his job performance and any concerns he might have regarding his job. This letter was prepared in both an English version and a Spanish version, and Mr. Navarro signed the acknowledgement that he had received the letter on April 17. Mr. Navarro did not, however, meet with Ms. Gragg during the month of April 2000.7 The School Board's records reflect that Mr. Navarro was absent on sick leave charged to annual leave or sick leave charged to "without pay" on May 1, 2, 11, 12, 15 through 19, 26, and 30, 2000; Mr. Navarro was also absent for five hours on both May 22 and 25, 2000. On May 11, 2000, Dr. Bogani provided certification that Mr. Navarro would be out of work on May 11 and 12, 2000, "for health reasons," noting that his office should be called if there were any questions. On May 15, 2000, Dr. Bogani provided certification that Mr. Navarro would not be able to work on May 15 through 19, 2000, because of "severe muscle spasm in lumbar spine," noting that Mr. Navarro would not be able to vacuum for at least a month. On May 26, 2000, Dr. Bogani provided certification that Mr. Navarro had been under his care for back problems and that Mr. Navarro would be under his care from May 26 through 30, 2000. In a letter dated May 11, 2000, Ms. Gragg notified Mr. Navarro that he was to attend a meeting on May 17, 2000, to discuss allegations of excessive absences and to review his job performance, that he could bring a representative to the meeting, and that the meeting could result in disciplinary action being taken against him. The letter was prepared in both an English and a Spanish version. Meanwhile, Ms. Gragg completed Mr. Navarro's annual evaluation in which she gave him an overall unsatisfactory rating and rated his performance unsatisfactory in several categories, including attendance. Ms. Gragg set forth Mr. Navarro's deficiencies on a separate sheet attached to the annual evaluation, as follows: Job Knowledge You failed to effectively clean the "gang" bathrooms in the main building May 15- May 23, 2000. [Correct dates are April 15- April 23, 2000][8] You failed to effectively clean the floors in Bldg 200 on March 23, April 17-May 25, 2000. [Correct dates are April 17-April 25, 2000, see endnote 9.] Self Management/Self Motivation You did not complete assigned duties in a timely manner. Restrooms in the main building were not cleaned on May 15-23, 2000. [Correct dates are April 15-April 23, 2000, see endnote 9.] Interpersonal effectiveness You failed to complete your assigned duties, thus causing your co-workers to assume extra responsibilities. Mr. Angel Rivera, Head Custodian, was required to clean you assigned areas on March 23, April 17-May 25, 2000. [Correct dates are April 15-April 25, 2000, see endnote 9]. Ms. Gragg also noted on the annual evaluation form that Mr. Navarro had been absent 53 days during the 1999-2000 school year and that she had previously recommended that Mr. Navarro inquire about his eligibility for appropriate leave. The evaluation form was signed by Ms. Gragg and dated May 18, 2000, and, at some point, Ms. Gragg discussed the evaluation and the specific deficiencies and improvement strategies with Mr. Navarro. A note dated May 19, 2000, signed by Ms. McIntyre, indicates that the evaluation was translated into Spanish for Mr. Navarro and that Mr. Navarro refused to sign the form. In a letter dated May 23, 2000, Ms. Gragg issued Mr. Navarro a written reprimand for his failure "to report to work in accordance with published rules and the duties and responsibilities" of his job. Specifically, Ms. Gragg noted that Mr. Navarro had been put on notice on March 20, 2000, that he was to report to work on a regular basis; that he had been absent 14.5 days since March 20, 2000; that he had been absent a total of 53 days during the school year; and that he was absent on May 18 and 19, 2000, but did not call to inform her office of his absence. Mr. Gragg advised Mr. Navarro in this letter that, if he engaged in similar conduct in the future, he would be subject to further discipline, including termination of his employment. The letter was prepared in both an English and a Spanish version. It is not clear from the letter whether Ms. Gragg was reprimanding Mr. Navarro for excessive absences or for failing to call to inform her office of his absences on May 18 and 19, 2000. Ms. Gragg was advised in a letter from a teacher dated May 25, 2000, that Mr. Navarro had failed to empty the garbage can in her classroom on May 24, 2000, and Ms. Gragg provided a copy of the letter to Mr. Navarro. Throughout March, April, and May 2000, Mr. Navarro was experiencing problems with his back, and he was able to work only when he took pain medication, which made him feel drowsy and lethargic. Mr. Navarro visited Dr. Bogani often as a result of the pain, and he always provided to Ms. Gragg Dr. Bogani's medical certifications for his absences.9 Mr. Navarro was also becoming increasingly distraught because of what he considered Ms. Gragg's unfair criticisms of his job performance and her apparent inability to understand the extent of his medical problems. He was particularly affected by his unsatisfactory annual evaluation because he had received satisfactory evaluations since he began working for the School Board. On June 5, 2000, Mr. Mendez, the attorney handling Mr. Navarro's workers' compensation claim, contacted the School Board's workers' compensation administrator on Mr. Navarro's behalf and requested that Dr. James B. Phillips be assigned as Mr. Navarro's gatekeeper. An appointment was arranged for Mr. Navarro with Dr. Phillips for June 8, 2000. Mr. Navarro advised Ms. McIntyre that he would be absent on June 8, 2000, for a doctor's appointment.10 Ms. McIntyre asked that Mr. Navarro complete a "Leave/Temporary Duty Elsewhere" form requesting leave for June 8, 2000, and he refused; this form is a School Board form that must be completed before an employee can be approved for any type of leave. Ms. Gragg sent Mr. Navarro a memorandum dated June 7, 2000, in which she directed him to submit a completed leave form to her "today" and advised him that failure to do so would be considered insubordination and would subject him to discipline. Mr. Navarro submitted a leave form dated June 7, 2000, but he did not indicate on the form the type of leave he requested or the amount of time he would be absent. Ms. Gragg disapproved the request on June 7, 2000, with the notation "Incomplete TDE." Mr. Navarro gave no explanation for his failure to fill out the leave request form completely. Dr. Phillips first saw Mr. Navarro on June 8, 2000, and Mr. Navarro explained to Dr. Phillips that he had injured his back on the job on January 22, 1999. Dr. Phillips did several tests and diagnosed Mr. Navarro as having a "lumbosacral sprain, chronic," but also noted that Mr. Navarro most likely magnified the symptoms of his back injury. Dr. Phillips also recommended that Mr. Navarro have a MRI. Dr. Phillips completed a Workers' Compensation Work Status Report in which he indicated that Mr. Navarro could do light-duty work with the restrictions that he was not to use a vacuum cleaner or to lift more than 15 pounds. Dr. Phillips directed Mr. Navarro to give the form to his supervisor at work. On June 9, 2000, Mr. Navarro took this form to Ms. Gragg's office at Taylor/Kirklane Elementary. At approximately 10:15 a.m., Ms. McIntyre called Linda Meyer, a claims technician for the School Board's workers' compensation program, and advised her that Dr. Phillips had placed Mr. Navarro on light-duty restrictions and that there were no such assignments available at the school. One of Ms. Meyer's responsibilities is to find light-duty placements for School Board employees injured on the job who cannot return to their jobs because of work restrictions imposed by a doctor participating in the School Board's workers' compensation program. Ms. Meyer told Ms. McIntyre to send Mr. Navarro to her office immediately, and Ms. Meyer asked Ms. McIntyre to send Mr. Navarro's work restrictions to her by facsimile. Ms. Meyer found a light duty job for Mr. Navarro that met his work restrictions. Mr. Navarro was to work with the medical records clerk in the School Board's Risk Management office, Sheila Rick; the job required Mr. Navarro to sit at a table, take medical records out of files, count the documents, and return them to the files. Ms. Riczko speaks fluent Spanish, and it would not have been necessary for Mr. Navarro to speak or read English to do this job. Dr. Phillips is of the opinion that Mr. Navarro would have had no physical problem doing this work. When Mr. Navarro had not reported to her office by noon on June 9, 2000, Ms. Meyer telephoned Ms. McIntyre to confirm that Mr. Navarro had been told where to report for his assignment; Ms. McIntyre told Ms. Meyer that Mr. Navarro had left Taylor/Kirklane Elementary at approximately 10:45 a.m. Shortly after noon, Ms. Meyer received a telephone call from Carolyn Killings, Mr. Navarro's union representative, asking about Mr. Navarro's light-duty work assignment. Ms. Killings told Ms. Meyer that Mr. Navarro was in her office; Ms. Meyer told Ms. Killings to tell Mr. Navarro that she had a light-duty work assignment for him and that he was to report to her office. Mr. Navarro did not report to Ms. Meyer's office on June 9, 2000. Ms. Meyer prepared a letter advising Mr. Navarro that he was to report for his temporary light-duty work assignment, and the letter was prepared in both an English version and a Spanish version. In the letter, Ms. Meyer told Mr. Navarro where to report and confirmed that the assignment satisfied the restrictions imposed by Dr. Phillips on June 8, 2000, that he not lift anything weighing more that 15 pounds and that he do no vacuuming. Ms. Meyer further advised Mr. Navarro in this letter that failure to report for this assignment might result in termination of his workers' compensation benefits and in disciplinary action by the School Board, including termination of employment. Ms. Meyer also attached a light-duty sign-in sheet and directed Mr. Navarro to complete the sheet each day. Also on June 9, 2000, after Mr. Navarro had presented to Ms. McIntyre the work restrictions imposed on June 8, 2000, by Dr. Phillips, Ms. Gragg prepared a Written Letter of Reprimand for actions involving repeated insubordination. Specifically, Ms. Gragg reprimanded Mr. Navarro because he left campus at his regular break time of 10:00 a.m. but did not return until 10:45 a.m., with a sandwich.11 Ms. Gragg noted in the letter that she had questioned Mr. Navarro as to why he returned to campus past the end of his break time and how he intended to eat and do his work at the same time. According to the letter, Mr. Navarro explained that he was hungry and had to eat. Ms. Gragg referred in the letter to Mr. Navarro's failure to heed her warning on June 8, 2000, to correct his actions, and she advised Mr. Navarro that she was referring the matter for a "District review" with respect to the next step in the disciplinary process.12 A handwritten note at the bottom of the letter states that Ms. McIntyre "verbally interpreted" the letter into Spanish for Mr. Navarro. Ms. Gragg followed up her June 9, 2000, Written Reprimand with a letter dated June 12, 2000, to the Director of the School Board's Employee Relations Department. In the letter, Ms. Gragg stated: "I have issued a Written Reprimand and the employee has repeated the misconduct. Therefore, I am requesting a District review for the purpose of determining the next step in the discipline process." Ms. Gragg also noted in the June 12, 2000, letter that Mr. Navarro had not reported to the Risk Management office for light duty or to Taylor/Kirklane Elementary for regular duty. Ms. Gragg also telephoned a complaint regarding Mr. Navarro to the School Board's Office of Professional Standards on June 13, 2000. Ms. Gragg charged Mr. Navarro with unauthorized absence and insubordination, based specifically on his refusal on June 7, 2000, to complete a leave form for his doctor's appointment on June 8, 2000, and on Mr. Navarro's failure to respond to her directive on June 9, 2000, that he report to Ms. Meyer's office for a light-duty work assignment. In a letter dated June 15, 2000, Ms. Gragg advised Mr. Navarro that she was concerned that he had not reported to Ms. Meyer's office for his light-duty work assignment or to Taylor/Kirklane Elementary. She asked that Mr. Navarro call her office regarding these absences. This letter was prepared in both an English version and a Spanish version. On June 15, 2000, Ms. Meyer asked Ms. Riczko to telephone Mr. Navarro's home to ask why he had not reported for his light-duty assignment. Ms. Riczko spoke with Mrs. Navarro, who said that Mr. Navarro would be in on Monday, June 19, 2000. On June 19, 2000, Mrs. Navarro telephoned Ms. Riczko and told here that Mr. Navarro had an appointment with his attorney and would not be reporting for his work assignment that day. Mr. Navarro did, however, report to Ms. Meyer's office late in the day on June 19, 2000. Mr. Navarro told Ms. Meyer that he could not work because of the medication he was taking. Ms. Meyer advised Mr. Navarro that he was to have reported for his light-duty work assignment on June 9, 2000, and that, by refusing the light-duty work, he was jeopardizing his workers' compensation benefits. Ms. Meyer suggested that Mr. Navarro talk to someone in Ernie Camerino's office about taking an extended medical leave. Mr. Camerino's office is responsible for processing retirements and leaves of absence for the School Board. Mr. Navarro picked up a set of leave forms from Mr. Camerino's office on June 19, 2000. On June 20, 1999, Mr. Navarro visited Dr. Phillips' office and requested that Dr. Phillips authorize him to take two weeks off of work. Dr. Phillips refused and again advised Mr. Navarro that he could return to light-duty work. Mr. Navarro submitted a Request for Leave of Absence Without Pay to Ms. Gragg on June 22, 2000, in which he asked for personal leave from June 9, 2000, to July 9, 2000. Ms. Gragg denied Mr. Navarro's request in a letter dated June 22, 2000, which was prepared in both an English and a Spanish version. The reasons given by Ms. Gragg for her refusal to approve Mr. Navarro's leave request were as follows: (1) Mr. Navarro did not request the leave in advance; (2) the leave request form was submitted on June 22, 2000, for leave extending from June 9, 2000, to July 9, 2000, and she could not backdate a personal leave request; and (3) Mr. Navarro did not discuss or provide proper documentation on his leave form. Finally, in the June 22, 2000, letter, Ms. Gragg directed Mr. Navarro to report for work on June 26, 2000. Mr. Navarro wrote a letter to Ms. Gragg dated July 26, 2000, in which he explained that he requested personal leave because he did not feel emotionally stable as a result of his problems and that his personal doctor, Dr. Bogani, had given him documents that showed he approved the leave. Mr. Navarro also advised Ms. Gragg that he was scheduled to have an MRI on June 28, 2000,13 and would receive treatment for his back, depending on the results of the test. Mr. Navarro reminded Ms. Gragg that she had prohibited him from bringing his medication to school and that it was the only medication he took, and that it helped him work "almost normal." The contents of this letter had no effect on Ms. Gragg's decision to deny Mr. Navarro's request for leave without pay. Mr. Navarro's MRI was completed on July 9, 2000, and, on July 10, 2000, Dr. Phillips went over the results with Mr. Navarro. The MRI showed that Mr. Navarro had a disc herniation at L5-S1, which displaced the S1 nerve posteriorally, with severe right foraminal narrowing. In Dr. Phillips' opinion, Mr. Navarro had a serious problem with his back, and he modified Mr. Navarro's work restrictions to provide that he could not lift anything weighing more than 10 pounds. In a letter dated July 10, 2000, sent to Mr. Navarro by certified mail and in both an English and a Spanish version, Ms. Meyer noted that he had not yet reported for his light-duty work assignment, and she reiterated the penalties that could be imposed for his failure to report. On July 14, 2000, Ms. Meyer sent another letter to Mr. Navarro, by certified mail and in both an English version and a Spanish version, advising him that he had been scheduled to report for his light-duty work assignment on June 9, 2000, that he had not done so, and that the missed days would not be approved as related to his workers' compensation claim. Ms. Meyer again urged Mr. Navarro to report for work immediately. Mrs. Navarro telephoned Ms. Meyer's office on July 19, 2000, and spoke with Ms. Riczko about Mr. Navarro's light-duty work assignment. Ms. Riczko told Mrs. Navarro that Mr. Navarro must report to Ms. Meyer's office the next morning at 8:00 a.m. to start his work assignment. Mrs. Navarro said that she would tell her husband. Mr. Navarro reported to Ms. Meyer's office at 8:45 a.m. on July 20, 2000; his wife accompanied him. Mr. Navarro told Ms. Meyer and Ms. Riczko, who was acting as interpreter, that he was not able to work because he was taking pills that made him very lethargic and sleepy. He said that he intended to call Dr. Phillips and ask for a different type of pain medication. Ms. Meyer advised Mr. Navarro that it might be best for him to ask for a leave of absence; Ms. Meyer reiterated that he must report for his light-duty assignment if he did not get approved for a leave of absence. Mr. Navarro was told to report at 8:00 a.m. on July 24, 2000, for his light-duty work assignment. He telephoned at 8:45 a.m. and advised Ms. Riczko that he had taken his wife to the hospital emergency room and needed to stay with her. Ms. Riczko heard nothing further from Mr. Navarro, and he never reported to her office for the light-duty work assignment. After reviewing the results of Mr. Navarro's MRI, Dr. Phillips had requested that Mr. Navarro be examined by a neurosurgeon, and, on August 16, 2000, Dr. Brodner examined Mr. Navarro. Dr. Brodner advised Mr. Navarro that he needed surgery on his back and that there was a 20-percent chance that the surgery would cause paralysis in his legs. As of the date of the hearing, Mr. Navarro had refused the surgery because of this risk. Meanwhile, School Board personnel investigated the allegations made by Ms. Gragg in her telephoned complaint of June 13, 2000, and a report of the investigation was submitted to the School Board's Case Management Review Committee for a determination of probable cause. The committee found probable cause at a meeting held on July 23, 2000, and recommended that Mr. Navarro be terminated from his employment with the School Board. Paul LaChance, the Director of the School Board's Office of Professional Standards, arranged to meet with Mr. Navarro on August 15, 2000, in order to go over the investigation report and the committee's recommendation and to allow Mr. Navarro the opportunity to respond to the charges against him. Mr. Navarro presented Mr. LaChance with a letter written in Spanish, which was later translated into English for Mr. LaChance, in which he offered his explanation for his absences and his version of the events leading up to Ms. Gragg's complaint and the events relating to his failure to report for his light-duty work assignment. Mr. LaChance reviewed Mr. Navarro's letter and requested that Ms. Gragg respond to certain allegations against her that Mr. Navarro had included in the letter. After reviewing Ms. Gragg's response to Mr. Navarro's letter, Mr. LaChance recommended that Mr. Navarro be suspended without pay and that his employment with the School Board be terminated. In a document entitled "Notice of Suspension and Recommendation for Termination of Employment," dated September 8, 2000, and signed by Dr. Marlin, Mr. Navarro was notified that Dr. Marlin would recommend to the School Board that it terminate Mr. Navarro's employment at its September 20, 2000, meeting. The School Board approved Dr. Marlin's recommendation and immediately suspended Mr. Navarro without pay. Mr. Navarro believed that he was not physically or emotionally able to do even light-duty work, and the School Board's records show that Mr. Navarro did not report for either regular work or his light-duty work assignment from June 9, 2000, through September 20, 2000, when he was suspended from his employment. Summary The evidence presented by the School Board is not sufficient to establish with the requisite degree of certainty that Mr. Navarro abused his sick leave privileges. The School Board did not present any evidence to establish that Mr. Navarro was absent for reasons other than medical reasons, and, indeed, the School Board classified Mr. Navarro's absences almost exclusively as sick leave, sick leave charged to annual leave, or sick leave charged to "without pay." There is no question that Mr. Navarro used his sick leave as he earned it, and Ms. Gragg was justified when she directed Mr. Navarro in the March 13, 2000, Verbal Reprimand With a Written Notation to provide medical certifications for any future absences. Mr. Navarro submitted such certifications from Dr. Bogani for most of his absences subsequent to March 13, 2000, although he did not provide medical certifications for his absences on April 5, 6, and 7, 2000; for 4 hours on April 27, 2000; or for five hours on May 22 and May 25, 2000. These lapses are not sufficient to support a finding that Mr. Navarro abused his sick leave privileges, and there is no evidence to establish that Ms. Gragg advised Mr. Navarro that the certifications were insufficient or advised him that he had failed to provide the certifications timely. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Navarro was willfully absent from duty without leave from June 9, 2000, until September 20, 2000, when the School Board suspended him and termination proceedings were initiated. Ms. Meyer advised Mr. Navarro of his obligation to report or face possible disciplinary action in her letter dated June 9, 2000, which was sent to Mr. Navarro in both an English and a Spanish version. Mr. Navarro was repeatedly directed to report for work by Ms. Gragg and Ms. Meyer, both verbally and in writing, and he advised that his failure to report for his light-duty work assignment would jeopardize both his workers' compensation benefits and his employment with the School Board. Credence is given to Mr. Navarro's belief that he was emotionally and physically unable to work subsequent to June 8, 2000, but he failed to explain why he did not apply for a leave of absence until June 22, 2000. Ms. Gragg had advised him to inquire about his eligibility for leave in her reprimand letter of March 13, 2000, and Ms. Meyer urged him to talk with Mr. Camerino's office regarding a leave of absence on several occasions. Mr. Navarro did not apply for personal leave without pay until June 22, 2000, and he requested leave from June 9, 2000, through July 9, 2000. When Ms. Gragg denied the leave, Mr. Navarro did not file a grievance pursuant to the Union Contract, he simply did not report for work. Mr. Navarro was aware of the consequences of his failure to pursue his leave request or to report for work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension without pay of Miguel Navarro and terminating his employment with the School Board. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2001.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of race and national origin, for the reasons stated in the Charge of Discrimination and Petition for Relief, in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner is a member of a protected class. Petitioner is Haitian and African-American. Respondent employed Petitioner up to the time of the alleged discrimination. On January 30, 1995, Respondent conducted a plant-wide meeting to introduce, distribute, and explain a new edition of Respondent's employee handbook (the "handbook"). The policies and procedures contained in the handbook, including a new attendance policy, became effective on February 1, 1995. Petitioner attended the plant-wide meeting along with Respondent's other employees. Respondent gave each employee at the meeting, including Petitioner, a copy of the handbook. Petitioner never indicated to anyone that he did not understand the contents of the handbook. Petitioner never asked any questions concerning the contents of the handbook, including the new attendance policy. Petitioner signed an acknowledgment of receipt form dated January 30, 1995. By signing the form, Petitioner agreed he had received and read the handbook and understood its contents, including the new attendance policy. Respondent's office and personnel manager (the "office manager") explained to the employees in attendance at the plant- wide meeting that they could take up to one week to review the handbook and sign and return the acknowledgment form to her. Petitioner chose not to use the allotted week. Respondent used a majority of the time at the plant-wide meeting to explain the new attendance policy contained in the handbook. The new attendance policy adopted a no-fault point system intended to implement an objective, non-discretionary attendance policy that eliminated employee excuses and management discretion concerning employee absences. The new attendance policy assessed each employee a prescribed number of points that ranged from a half point to five points for each absence or tardy attendance depending on the nature of the absence or tardiness. The points prescribed for each type of offense were based solely on each employee's timecard. Supervisors had no discretion in the assessment of points or the implementation of discipline for excessive points. The attendance policy imposed three tiers of a progressive discipline plan based on accumulated points. The progressive discipline required a written warning when an employee accumulated five points for absences or tardiness within a six-month period. If an employee accumulated eight points within a six-month period, the progressive discipline plan required a second written warning and an hourly reduction in pay rate for a prescribed period. If an employee accumulated 10 points within a six-month period, the progressive discipline plan required termination of employment. The office manager calculated each employee's accumulated points each week when the office manager calculated the payroll due each employee. The office manager reviewed each employee's timecard to verify attendance and tardiness. When the office manager determined a particular employee had reached any one of the three tiers prescribed in the progressive discipline plan, the office manager implemented the prescribed discipline. Prior to March 13, 1995, Petitioner accumulated 5.5 points within a six-month period pursuant to the terms of the new attendance policy. Petitioner accumulated two points each for two absences on February 17 and March 3, 1995, for a total of four points for absences, and accumulated a half point for each of three tardy attendances on February 21 and March 6 and 9, 1995, for a total of 1.5 points for tardy attendances. On March 13, 1995, the office manager issued a first written warning to Petitioner in accordance with the requirements of the progressive discipline plan prescribed in the attendance policy. Petitioner's supervisor discussed the first written warning with Petitioner. Petitioner signed the written warning on March 14, 1995. Prior to April 26, 1995, Petitioner accumulated 8.5 points within a six-month period pursuant to the terms of the new attendance policy. Petitioner accumulated one half point each for two tardy attendances on March 14 and April 3, 1995, for a total of one point for tardiness, and accumulated one point each for two absences on April 4 and 26, 1995, for a total of two points for absences. Between February 17 and April 26, 1995, Petitioner accumulated 8.5 points for absences and tardiness. On April 26, 1995, the office manager issued a second written warning to Petitioner and reduced Petitioner's hourly rate of pay by one dollar for four weeks. Petitioner's supervisor discussed the second written warning with Petitioner, but Petitioner refused to sign the second written warning. Company policy required an employee's supervisor to involve a second manager whenever an employee refused to sign a written warning to ensure that the employee understood the disciplinary warning and to provide a witness to the employee's refusal to sign. When Petitioner refused to sign the second written warning, Petitioner's supervisor included the office manager to ensure that Petitioner understood the disciplinary action and in fact received the written notice of the disciplinary action. Prior to June 29, 1995, Petitioner accumulated 10 points pursuant to the terms of the new attendance policy. Petitioner accumulated one half point for a tardy attendance on May 2, 1995, and one point for being more than one hour late on June 28, 1995. Between February 17 and June 28, 1995, Petitioner accumulated 10 points in accordance with the new attendance policy. On June 28, 1995, the office manager issued a third written notice of disciplinary action to Petitioner. Respondent terminated Petitioner's employment in accordance with the terms of the disciplinary plan prescribed in the attendance policy. Between 1994 and 1995, Respondent terminated 12 employees including Petitioner. Three of the terminated employees were Caucasian, three were Hispanic, three were African-American, one was Asian American, one was American Indian, and Petitioner was Haitian. On June 28, 1996, Petitioner signed and dated a Charge of Discrimination. The Charge of discrimination alleges that Respondent discriminated against Petitioner on the basis of race and national origin when Respondent terminated Petitioner's employment on June 28, 1995. Petitioner did not file the Charge of Discrimination with the Commission within 365 days of the alleged violation. Petitioner did not file the Charge of Discrimination in person in Tallahassee, Florida on the date he signed the document. Rather, Petitioner mailed the Charge of Discrimination on June 28, 1996, from Orlando, Florida to Tallahassee. The record evidence does not show when the Charge of Discrimination was actually filed with the Commission. However, the actual date of filing is not material. Counting June 29, 1995, as the first day of the 365-day filing period, 366 days elapsed from June 29, 1995, through June 28, 1996, because February 1996 contained 29 days. Even if February 1996 contained only 28 days, Petitioner testified that he mailed the Charge of Discrimination on the 365th day. Therefore, Petitioner could not have filed the Charge of Discrimination within 365 days of the alleged discrimination on June 28, 1995. The Commission failed to determine whether there was reasonable cause for the Charge of Discrimination within 180 days of the date that Petitioner filed the Charge of Discrimination. If the Charge of Discrimination was filed five days after Petitioner mailed it on June 28, 1995, the Charge of Discrimination was filed on July 3, 1996. Section 760.11(3) required the Commission to issue its determination of cause no later than December 30, 1996. Contrary to the statutory requirements of Section 760.11(3), the Commission did not make any determination of reasonable cause regarding the Charge of Discrimination within 180 days from either June 28 or July 4, 1996. Nor did the Commission make any such determination within 1,120 days from June 28 or July 3, 1996. The Commission issued a Notice of Determination: No Cause on August 2, 1999. Petitioner did not timely file his request for hearing. When the Commission failed to determine reasonable cause no later than December 30, 1996, Petitioner had 35 days thereafter, or no later than February 3, 1997, to request an administrative hearing in accordance with Sections 760.11(4) and 760.11(7). Petitioner filed his request for hearing when he filed his Petition for Relief on September 7, 1999, approximately 945 days after February 3, 1997. On August 2, 1999, the Commission issued a Notice of Determination: No Cause. Assuming arguendo that the 35 days prescribed in Section 760.11(7) required Petitioner to file his request for hearing within 35 days of August 2, 1999, Petitioner still did not file a request for hearing within 35 days of August 2, 1999. Counting August 3, 1999, as the first day, the 35th day was September 6, 1999. Petitioner filed his Petition for Relief, in which he requested an administrative hearing, on September 7, 1999, the 36th day after August 2, 1999. Petitioner did not file his request for hearing within 35 days of either August 2, 1999, or February 3, 1997. Petitioner's claim is barred. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 10th day of March, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Jules Itule, pro se 6225 Sunshine Street Orlando, Florida 32808 John M. Finnigan, Esquire Garwood, McKenna, McKenna and Wolf, P.A. Post Office Box 60 Orlando, Florida 32802-0060
